Cfr And Laying Out Evidence

[Scott D]

When the CFR lists the rating critria, such as the copied version below, can the RO deny this rating level because only one or two of the OR statements is met?

In my case specifically I am on a daily dose of three puffs of an inhaled corticosteroids and have been on four Predisone bursts this last year. While these prescriptions are listed in my medical record, I have a feeling the RO will miss this and force me to NOD the unfavorable rating decision, should I write a statement laying out the timeline of the Prednisone bursts?

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids.

Thanks!

[Jay Johnson]

When the CFR lists the rating critria, such as the copied version below, can the RO deny this rating level because only one or two of the OR statements is met?

In my case specifically I am on a daily dose of three puffs of an inhaled corticosteroids and have been on four Predisone bursts this last year. While these prescriptions are listed in my medical record, I have a feeling the RO will miss this and force me to NOD the unfavorable rating decision, should I write a statement laying out the timeline of the Prednisone bursts?

FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids.

Thanks!

Yes, and attach the actual medical records to prove this. Also, write a statement saying how these treatments affect your daily life and the exact reasons why you needed the treatments (IE - symptoms that cause you to need the treatments and be specific). Written information can help a lot, especially when backed by medical documentation. One more point - keep things short and sweet and highlight the areas of the medical records that YOU want them to focus on (yes, they do skim and skim often)....in other words, pretend you're talking to an 8 year old.

As for meeting rating's criteria - They, the VA, have great latitude in interpreting the degree of severity...basically, if you don't meet ALL of the requirements for a given criteria then they can give you the lower rating. Anything short of that and they can claim that "you're disability BEST fits the lower criteria rating", and you'll have an uphill battle. With that said, they are "supposed" to give you the higher rating if you meet "most" of the criteria (IE - if there's 5 criteria and you meet 3 you should get it), but severity is a very debatable thing and they would rather force you to fight upwards then award you what you deserve in the hopes that you'll give up or the BVA will uphold their decision (which they often do). This is also a good reason to frame your argument in terms of the criteria you are shooting for (or even a step higher so you can still get the rating you want, yet the VA feels they still low-balled you).

You should frame your paper to them something like this:

Here are the reasons why I feel I deserve compensation at a higher level -

1) (list a symptom that would meet a given criteria)

2) (list another symptom that meets a different criteria)

3) (rinse/repeat as needed to meet all criteria)

Sum it up by stating that you deserve a higher rating because your disability causes A,B,C,D, etc (basically tie your symptoms directly to the rating's criteria)..... Then attach the relevant medical records and highlight (with a highlighter) all of the information that proves everything you just wrote.

This forces them to counter each point rather then giving them room to make a broad, general decision without giving sufficient reason.

[Guest Namvet6567]

Very well put, Jay. I know it's been pointed out before but diaries/journals are excellent evidence and can be very supportive evidence. Symptoms, such as, but not limited to, pain, flare-ups of conditions, nightmares, intrusive thoughts, flashbacks, etc., should be documented as to time, date and it's effect on claimant. A daily diary can be a huge benefit to a claim, however most claimants rarely spend the time, needed, actually keeping one, thereby limiting their probative evidence.

Edited March 18, 2006 by Namvet6567