Must Multiple Denials Be Appealed At The Same Time?

[Guest Morgan]

I am preparing the substantitive appeal for recent denials of multiple claims. Three of them are stronger for appeal than the others. For instance, they denied sleep apnea (left untreated for three years), because the law doesn't allow sleep apnea to be "superimposed over the rating for the lungs." I suppose this is another way of saying it would be pyramiding. So now, that one is only suitable for a Sec. 1151 claim, but I wonder if the Sec. 1151 would entail the same "superimposed" limitation. Do any of you know?

Since the number of claims seems to have overloaded the rater's thinking capacity, we thought it might be best to appeal fewer claims at first. Can the three claims be appealed now and the others before the year runs out?

[Guest Berta]

Don't know how others feel but I would appeal everything they denied in the SOC at the same time-

On the I-9 form, under question # 9

it seems to lock you in to either appealling all issues or

only listing the ones you want to appeal-

I dont know if they would consider a partial appeal of some issues and not others-

They skim everything over so quickly that they could easily assume the issues you don't put in the appeal are issues you have accepted their denial on-

You could highlight the evidence on the strongest issues first but I feel it would be very confusing to them to get a partial appeal.

On my I-9 there were two issues-the two in their SSOC.

I reminded them of all the evidence in the veteran's med recs and the IMOs that they have and yet still have failed to consider

to support the claim and then I knocked down each part of their medical opinion.

(which was the easiest one I ever had to knock down-I had expected something more difficult)

The other issue was turned into a CUE claim by me in 2004 -making the issue on appeal moot.

I explained that all to them on the I-9 like they were 12 years old.

They started working on the CUE as soon as they got either this or my SSOC response.

So now I have only one issue on appeal.

My point here is- why appeal something that is either moot issue or -in some cases- maybe no chance at all to succeed-if the other issues are stronger.

Then again it is often very hard to determine that a claim will Not succeed-

because persistence pays off and additional medical evidence can always be found that supports a potentially 'weak' claim.

With numerous issues- I would list them and add a statement as to what specific evidence will support each claim or something to put their denial for each claim into question.

Also if one claim clearly involves another claim- I would make sure they know that-

what I mean- say a vet claims higher rating for PTSD and also

for TMJ.

There is certainly reason to believe that medical evidence could link the TMJ to the PTSD as a secondary condition. The veteran's anxiety states could cause involuntary jaw clenching and resulting TMJ and dental problems.

If the veteran can approach these two separate claims this way-

rather then letting the TMJ claim stand on it's own, there is better chance for a secondary SC award for the TMJ.

Hope that made sense-

Edited March 10, 2006 by Berta

[Guest Morgan]

Thanks. Makes perfect sense.

They were just so confused with the eight claims at once, I thought I might need to spoonfeed them a little at a time. I worked two claims separately last year and both were approved. But when I decided to get all of the last ones adjudicated at once, all were denied. They were just as solid as the others. Maybe it's just the crew I have to deal with in this RO, but I think they were overwhelmed with my volume of evidence.

Here's another quick question for you. I can't find this case, so what do you make of the words expert and other independent here:

However, the BVA cannot reject evidence favorable to the claimant without providing adequate reasons and bases for its decision. See Meyer v. Brown, 9 Vet.App. 425, 433 (1996). "Moreover, the Board may not rely on its own unsubstantiated medical conclusions to reject expert medical evidence in the record; rather, the Board may reject a claimant's medical evidence only on the basis of other independent medical evidence." Flash v. Brown, 8 Vet.App. 332, 339 (1995 ).

This seems to be speaking of an VA-ordered independant medical opinion, not just other evidence in the medical file.

Edited March 10, 2006 by Morgan

[john999]

It seems to be saying ,at least, that the BVA needs medical evidence to reject a claim that is based on medical evidence. They can't just reject or deny a claim without having medical evidence to the contrary of your medical evidence. One of our lawyers could probably answer that.

[Guest Morgan]

Do you think the intent of "independent" means a non-VA source? I think I read somewhere that the BVA has to use "arms-length" physicians for medical opinions, not those on its board.