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Nod/dro Va Obligations


cannoncocker

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I have submitted a request for reconsideration to the VARO. They responded by requiring me to choose between the "normal appeal process" or the DRO Process. I selected the DRO process. They acknowledged this choice in writting. I then requested a personal conference with the DRO and submitted new evidence. I started the NOD request on 29 june 09. On 24 August I received a decision on 2 claim items that had been deferred and a rubber stamp denial of my lumbar injury denial. Completely in contradiction to submitted evidence, in writing from their Neurologist, on his stationary, and the approval of a fee basis epidural injection, which the VARO has denied ever happened.

So, the question is, Does the VA have any obligation regarding the DRO process, since they asked me to chose. Their decision came in the same form as the rest of the claim did. They did not accept my request for the DRO conference nor did they deny it. They did nothing but deny the lumbar claim with the same form as the other deferred claims (1 they approved, the other denied) using erroneous information regarding the lumbar injury.

I basically would like to know if they have any obligations regarding this or can they simply ignor it and in which case does anyone have a recommendation moving forward?

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  • HadIt.com Elder

The clock is ticking for you.

I would request a complete copy fo the claims folder.

I would also NOD the other denial. This will preserve your time.

The C file may tell you what happened or that they are the unorganized mess that you are led to believe.

If you have VSO, use them. They have inside folks.

Dorry for your frustration but Most everyone goes through it.

J

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  • HadIt.com Elder

If you're waiting for a DRO hearing, I believe they've been taking 18-24 months before you'll get one. This appears the average nationwide.

pr

I have submitted a request for reconsideration to the VARO. They responded by requiring me to choose between the "normal appeal process" or the DRO Process. I selected the DRO process. They acknowledged this choice in writting. I then requested a personal conference with the DRO and submitted new evidence. I started the NOD request on 29 june 09. On 24 August I received a decision on 2 claim items that had been deferred and a rubber stamp denial of my lumbar injury denial. Completely in contradiction to submitted evidence, in writing from their Neurologist, on his stationary, and the approval of a fee basis epidural injection, which the VARO has denied ever happened.

So, the question is, Does the VA have any obligation regarding the DRO process, since they asked me to chose. Their decision came in the same form as the rest of the claim did. They did not accept my request for the DRO conference nor did they deny it. They did nothing but deny the lumbar claim with the same form as the other deferred claims (1 they approved, the other denied) using erroneous information regarding the lumbar injury.

I basically would like to know if they have any obligations regarding this or can they simply ignor it and in which case does anyone have a recommendation moving forward?

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jbasser

The clock is ticking for you.

I would request a complete copy fo the claims folder.

I would also NOD the other denial. This will preserve your time.

The C file may tell you what happened or that they are the unorganized mess that you are led to believe.

If you have VSO, use them. They have inside folks.

Reply: Actually after my DAV reps eyes stopped rolling in his head when I said I wanted a complete copy of my C-file, which he said he had never done before, we called the 800 number and requested the medical records for the lumbar time frame. I see a trip yo the VARO in my near future to physically request the entire file which i believe they said would be 10 bucks or something. I agree and will do that very soon.

Another NOD. I do not currently ave any new documentation to open a new nod. They have:

1. Active duty ER notes

2. Unit Follow up notes which changed medication.

3. ETS

4. MRI 2006 which documents a plethora of protruded/extruded/degenerative/pinched S1

5. MRI 2008 same as above.

6. 2008 Neurology consult stating degenerative discs/pinchedS1/herniated discs

Options:

a. pain medication

b. PT

c. epidural injection L5-S1

d. Surgery (Discretionary)

I selected meds and PT with use of TENS and Brace

7. Letter approving fee basis epidural injections from the Asheville VAMC.

The VA Neurologist pointed out on the MRI the new fluid which indicates new injury and dark fluid which indicates old injury. both present. So maybe an IME?

Thank you for your input!

john999

You have to request a personal hearing with the DRO. The DRO Review often results in a rubber stamp denial

Reply: that is rich, the rubber stamp part. I did indeed request a personal hearing with the DRO. The VARO acknowledged my reqest for the DRO then the next thing I received is a reworded denial as if they never received any new evidence or were cutting and pasting to fit their needs. Which was to refuse me a 100% disability. That is the issue. at 60% and the condition of my back, that has 100% written all over it. They evidently refuse to do that.

Any Ideas on how to fight back? I do worry about retaliation if I push too hard.

philip rogers

If you're waiting for a DRO hearing, I believe they've been taking 18-24 months before you'll get one. This appears the average nationwide.

Reply: I am not really concerned about the time so much as winning what I know to be right and fair. My brothers have my back like I had theirs when we were younger so not worried about that. I requested the hearing then they sent a denial so I can interpret that as a hearing is not part of their agenda.

So the question becomes, what do I do now? hire a lawyer/IME/file another sort of appeal? I don't have any new evidence. I shouldn't need any new evidence. My ER notes from Ft.Polk has pt.states pain at waste level. Now who would walk into an ER and say their waste level hurts. doctor's have actually laughed at that. They just saw VA claim written all over me. That is funny because as dumb as it sounds, I had never even heard of the VA at that point. I didn't even ask for an ets physical since tey had told me at the er to leave the same way I got in whaen I told them I could barely move. My medical condition was clearly of no interest to them.

But what now? C-file yes for sure. But what to keep the ball rolling without irritating them to the point they retaliate againsty me since I am satisfied with my claim minus the lumbar denial.

I spent 6.5 years humping projos in excess of my own weight that far exceeds the NIOSH Standards. The VA Neurologist pointed out old and new injury on my MRI, which I had both, distinguished by light and dark fluid. They did zero diagnostic work at the Ft. Polk ER, just motrin for my pain at the waste level. Now what exactly could a buck Sarg do about that? Nothing. Later at the unit they changed it to pt complained of low back pain and tey changed meds, but still no diagnostic work. Does the military medical prof. have no conduct requirements?

Edited by cannoncocker (see edit history)
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I have submitted a request for reconsideration to the VARO. They responded by requiring me to choose between the "normal appeal process" or the DRO Process. I selected the DRO process. They acknowledged this choice in writting. I then requested a personal conference with the DRO and submitted new evidence. I started the NOD request on 29 june 09. On 24 August I received a decision on 2 claim items that had been deferred and a rubber stamp denial of my lumbar injury denial. Completely in contradiction to submitted evidence, in writing from their Neurologist, on his stationary, and the approval of a fee basis epidural injection, which the VARO has denied ever happened.

So, the question is, Does the VA have any obligation regarding the DRO process, since they asked me to chose. Their decision came in the same form as the rest of the claim did. They did not accept my request for the DRO conference nor did they deny it. They did nothing but deny the lumbar claim with the same form as the other deferred claims (1 they approved, the other denied) using erroneous information regarding the lumbar injury.

I basically would like to know if they have any obligations regarding this or can they simply ignor it and in which case does anyone have a recommendation moving forward?

Did you receive a decision or a Supplemental Statement of the Case (SOC). The SOC looks like a decision but is only a review of the past decision.

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  • HadIt.com Elder

I would go to the VARO and give them another request in writing for a Personal DRO Hearing. Get a copy. As Pete has said you are entitled to a personal hearing at any time with someone at the VA regarding your claim. At my VARO it is taking about a year to get a hearing with a DRO. Your other path is to go to the BVA. That takes two years and if you want a hearing at the BVA that probably takes another year. The thing I believe is that talking to a human being that can rate you is your best bet unless your evidence is just so good that it is bullet proof. I don't believe that kind of evidence exists because you can't make the VA read it. Ask Berta! I know in at least one of my claims the VA did not read or understand the evidence if they did read it.

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Did you receive a decision or a Supplemental Statement of the Case (SOC). The SOC looks like a decision but is only a review of the past decision.

Hi Sharon, and to start, thank you for caring enough to put your experience and knowledge to work to help those of us not experienced and educated enough to contend with the curve balls the VA throws at us. I started, well actually, not even knowing the VA existed until I ETS'ed. until recently I honestly thought they were straight shooters and were really doing the best they could. I must have been completely out of my mind. They have misrepresented and plain lied to reach their quota or agenda. So much for the ranting.

I believe the answer to your question is no. The following is what I have received in the way of Decision. I received an initial Decision on 23 June 2009 in 2 parts, part 1 starting with "Your Award Amount And Payment Start Date" then part 22 June 2009 VARO Introduction/Decision etc. Part 1 had 2 deferred items and 1 denied item. The rest increased or unchanged.

The second Decision paper was titled "What We Decided" which addressed the 2 deferred items:

1. Unchanged

2. Denied (no problem/less documentation and would only serve to clutter the issue

3. 2nd denial of lumbar injury which was reworded from the Neurology Consult-cut and pasted to fit their needs-ignored/misrepresented new evidence which is easily rebutted by the VA's own Neurologist hand written document on his stationary and the VA evaluations of VA MRI's. So it changed nothing from the original Decision paper. I have never seen a SOC but this 2nd mailing is virtual the same as the first but it did mention my request for reconsideration. Nothing about DRO. It states my current complaints are not related to my service. how they can demonstrate that is beyond me as their own neurologist stated this was an old injury reproducable by the dark fluid leakge.

They did not only review the old case but only addressed the defered items and re-denied the lumbar item but reworded the parts they wanted and deleted the parts they didn't and then they just plain lied. Only problem is their Doctor as he was explaining to me the situation, he was writing it all down. I also have another VA Doctor that drew diagrams of my major lumbar problems, which I have but have not submitted. They should really train their Doctors to not write if they plan on misrepresenting the truth, plus an mri is difficult to get around.

So I would say that I have recieved 2 Decision papers. No SOC. Again, no reference to DRO or any conference.

Do they have no responsbility to deny a DRO or conference or is it acceptable to let you just guess or they just ignore it?

Then a day or so later I received a letter on VA form 20-8992 from my VARO stating they have received my application for benefits. What is that about? I have not requested any fuurther benefits since April 2008.

Anyway, given that I have not received an SOC, what do you think I should do?

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I would go to the VARO and give them another request in writing for a Personal DRO Hearing. Get a copy. As Pete has said you are entitled to a personal hearing at any time with someone at the VA regarding your claim. At my VARO it is taking about a year to get a hearing with a DRO. Your other path is to go to the BVA. That takes two years and if you want a hearing at the BVA that probably takes another year. The thing I believe is that talking to a human being that can rate you is your best bet unless your evidence is just so good that it is bullet proof. I don't believe that kind of evidence exists because you can't make the VA read it. Ask Berta! I know in at least one of my claims the VA did not read or understand the evidence if they did read it.

Now we get to action! Nothing with these guys is going to be bulletproof. Not possible!

Of those three

1. DRO hearing about 1 year

2. BVA about 2 years (no hearing)

3. BVA about 2 years plus 1 year (with hearing)

I am not that concerned with time, what would you think 1 or 3? Sounds like 1.

Edited by cannoncocker (see edit history)
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Hi Sharon, and to start, thank you for caring enough to put your experience and knowledge to work to help those of us not experienced and educated enough to contend with the curve balls the VA throws at us. I started, well actually, not even knowing the VA existed until I ETS'ed. until recently I honestly thought they were straight shooters and were really doing the best they could. I must have been completely out of my mind. They have misrepresented and plain lied to reach their quota or agenda. So much for the ranting.

I believe the answer to your question is no. The following is what I have received in the way of Decision. I received an initial Decision on 23 June 2009 in 2 parts, part 1 starting with "Your Award Amount And Payment Start Date" then part 22 June 2009 VARO Introduction/Decision etc. Part 1 had 2 deferred items and 1 denied item. The rest increased or unchanged.

The second Decision paper was titled "What We Decided" which addressed the 2 deferred items:

1. Unchanged

2. Denied (no problem/less documentation and would only serve to clutter the issue

3. 2nd denial of lumbar injury which was reworded from the Neurology Consult-cut and pasted to fit their needs-ignored/misrepresented new evidence which is easily rebutted by the VA's own Neurologist hand written document on his stationary and the VA evaluations of VA MRI's. So it changed nothing from the original Decision paper. I have never seen a SOC but this 2nd mailing is virtual the same as the first but it did mention my request for reconsideration. Nothing about DRO. It states my current complaints are not related to my service. how they can demonstrate that is beyond me as their own neurologist stated this was an old injury reproducable by the dark fluid leakge.

They did not only review the old case but only addressed the defered items and re-denied the lumbar item but reworded the parts they wanted and deleted the parts they didn't and then they just plain lied. Only problem is their Doctor as he was explaining to me the situation, he was writing it all down. I also have another VA Doctor that drew diagrams of my major lumbar problems, which I have but have not submitted. They should really train their Doctors to not write if they plan on misrepresenting the truth, plus an mri is difficult to get around.

So I would say that I have recieved 2 Decision papers. No SOC. Again, no reference to DRO or any conference.

Do they have no responsbility to deny a DRO or conference or is it acceptable to let you just guess or they just ignore it?

Then a day or so later I received a letter on VA form 20-8992 from my VARO stating they have received my application for benefits. What is that about? I have not requested any fuurther benefits since April 2008.

Anyway, given that I have not received an SOC, what do you think I should do?

This looks more like a reconsideration than an appeal. Call the 800 number and see if your appeal is still pending. When you send in new medical evidence they make have considered it a reconsideration. They may still have your appeal pending.

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This looks more like a reconsideration than an appeal. Call the 800 number and see if your appeal is still pending. When you send in new medical evidence they make have considered it a reconsideration. They may still have your appeal pending.

On the 21-4138 the DAV Rep. and I did for a fact request a "reconsideration". That is for sure. I plan on driving to the VARO and request a hearing with the DRO, if there was one at all. I have been told hear they are obligated to allow me a hearing with the DRO.

So beyond that, since an actual appeal has not been filed, how do I go about filing an appeal? I am done with the DAV rep. so I should call the 800 number and request an appeal with a hearing? Or is there a form that I can complete myself bypassing the 800 number and DAV. I want the decision as far from the VARO as possible because they have demonstrated there is no justice happening at the W-S VARO for me. Time is not the major factor for me on this. Justice is.

Thank you sharon

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  • HadIt.com Elder

Have you had a C and P exam for the back and neurological issues?

I see what they have done. Your back is maxed at 60.

You have to focus on the Sciatica. You need to get a medical opinion using the evidence you have that states your sciatica is directly resulting from your S1 Disk.

The MRI's wil help, do you have the report?

Now here is the kicker. Get your hands on your OR report. The OR report is a play by play of the events that happen during surgury.

It should tell exactly where the narrowing is.

This report was instrmental in my claim and folks who have had surgury should get copies of the reports.

You do not have to have new evidence to file a NOD. You do have to have new evidence to reopen a claim.

J

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Have you had a C and P exam for the back and neurological issues?

I see what they have done. Your back is maxed at 60.

You have to focus on the Sciatica. You need to get a medical opinion using the evidence you have that states your sciatica is directly resulting from your S1 Disk.

The MRI's wil help, do you have the report?

Now here is the kicker. Get your hands on your OR report. The OR report is a play by play of the events that happen during surgury.

It should tell exactly where the narrowing is.

This report was instrmental in my claim and folks who have had surgury should get copies of the reports.

You do not have to have new evidence to file a NOD. You do have to have new evidence to reopen a claim.

J

jbasser, thank you for your service to the country and in particular your service to this forum, the best resource I have found on the net or any place else for that matter.

Have you had a C and P exam for the back and neurological issues?

Kinda, the C&P exam did not really focus on my back, more my cardio vascular system. From the denial it stated some practioner stated I was SLR negative. That doesn't pass the laugh test, if you have access to he internet you know how to respond. I would let their VA Neurologist and MRI's counter that nonsense.

This is beyond any doubt confusing but here is what I have and where I am in repsponse to your post.

sinus tachycardia 30%

bilateral tinnitus 10%

Pes Planus and plantar fasiitis left foot, status post bunionectomy with scar 10%

Pes Planus and plantar fasiitis right foot, status post bunionectomy with scar 10%

Hypertension 10%

bilateral hearing loss 0%

equals 70% but however they calculate it ends up being 60%.

So I am currently 60% SC.

Lumbar Injury claim and request for reconsideration both denied. Requested DRO hearing: ignored or denied, whichever, they did not respond yea or nea, but did acnowledge my request for the DRO hearing on the IRIS system.

The VA Neurology consult written notes is the new evidence I submtted as new evidence.

You need to get a medical opinion using the evidence you have that states your sciatica is directly resulting from your S1 Disk

I do have that evidence and written opinion on the new evidence I submitted from the VA Neurology consult which stated "Left leg pain Left S1 nerve pinched"

On another part of the written note stated "left leg pain since 2005" which he misinterpreted from my statement that the pain increased in 2005, but the MRI should narrow that down with the dark and light fluid leakage indicating old and new injury, which the MRI shows both. It also states the sciatica originates from " L5-1S, herniated disc.

What can I do from there? Send it in Urdu?

Your back is maxed at 60: back (lumbar denied)

The MRI's wil help, do you have the report?: Yes I have both MRI reports from 2006 and 2008 and can relatively easily get the disc images. MRI's shows many problems.

OR report: I was given options written on the new evidence which was on his stationary. It stated "option"

1. Pain Medication

2. Physical Therapy

3. Epidural Injections ( I have the Aseheville VAMV fee basis approval letter)

4. Surgery (optional)

I selected 1 and 2. the denial letter stated that 1 and 2 was a medical directive, which as a matter of written fact it was my choice, and I choose not to have them stick me in the back or open my backup. I will have to be bed ridden before I resort to that!

You do not have to have new evidence to file a NOD. You do have to have new evidence to reopen a claim.

I have submitted new evidence which as previously stated they cut and pasted their way to another denial. The claim is still open, but just in my court as to how to proceed. I also submitted the NIOSH lifting equation which my field artillery job far exceeded the allowable limits.

From the input thus far it appears:

1. Drive to VARO and request a personal conference with the DRO and as I understand it the VA is obligated to provide a personal DRO conference since they have written acknowledgement of my request.

2. Initiate a BVA appeal with personal hearing.

Would an IME be worth the money to write a nexus letter?

I am not clear on how to initiate 2. a BVA appeal with personal hearing. A walk through on that would be helpful. I know we are talking years but it is a fools errand to expect any justice on this issue from the W-S VARO. They have denied othe items and I accept that. So I am not hard noseing this but they are vindictive on this issue and I am beginning to be more concerned on retaliation if it stays in their office. I would rather wait longer than allow them more time to retaliate against me via my claim.

Thanks J

Edited by cannoncocker (see edit history)
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cannon,

jbasser has posted some real good points here.

I would like to add, you do have to have new and material evidence to reopen a claim.

carlie

Hi carlie, thanks for the past help. the claim is still open, just waiting on me to accept or appeal. I did in fact submit new evidence for the request for reconsideration.

Is the VA obligated to allow me a personal hearing with a DRO? If not there would be zero point in me driving to the VARO.

Failing a DRO personal hearing How do I request a BVA appeal with a personal hearing and would that get my claim out of the W-S VARO?

I do have some minor additional evidence still but would an IME nexus letter be the way to go?

Thank you

Edited by cannoncocker (see edit history)
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  • HadIt.com Elder

You need 2 things.

An IMO Doctor to review the evidence concerning the Lumbar Spine and Neurological issues. It needs to be written in Standard VA Jargon.

You can do this by contacting a SSA attorney in your area and ask who they use for Independant medical examinations.

This Doctor specializes in Medical History of an injury and the occupational ramifications they present.

They are Cheaper than Dr B. and are just as effective.

You should concentrate on the Lumbar Issue. Once it is connected the Neuro part will fall into place.

J

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You need 2 things.

An IMO Doctor to review the evidence concerning the Lumbar Spine and Neurological issues. It needs to be written in Standard VA Jargon.

You can do this by contacting a SSA attorney in your area and ask who they use for Independant medical examinations.

This Doctor specializes in Medical History of an injury and the occupational ramifications they present.

They are Cheaper than Dr B. and are just as effective.

You should concentrate on the Lumbar Issue. Once it is connected the Neuro part will fall into place.

J

Exactly what I needed to know! Thank you so much. I will do exactly that. I was going to drive to the W-S VARO and request a hearing with the /a DRO but without a sledge hammer in my hand it would be pointless.

Once I get this documentation/evidence how do I go about submitting it? on a 21-4138 requesting an appeal to the BVA referencing this new evidence?

Also I have the following submitted in the IRIS system. Should I add a reply requesting they suspend any action on my claim until I have gathered more evidence and given it more time for thought and research?

********************************************************************

I submitted a request for reconsideration on June 30th, 2009 for the denied Lumbar Injury, and then selected the DRO process and consultation with the DRO Officer.

I received a letter from the XXXXXXXXXX VARO on Friday 21 August 2009:

XXXXXXXX Dated August 19, 2009

CSS XXXXXXXXXX

XXXXXXXXXX.

XXXXXXXXXXX

The decision remained the same with disregard to additional information submitted, in particular:

1. Charles George VAMC 1/2/2009 Fee Basis Approval Epidural Steroid Injections (which I declined as I rule out invasive procedures only as a last resort).

2. Durham Medical Center Neurosurgery Consult from Dennis Tuner, MD and Kenneth Rathey, PA-C 919 -286-0411 7010 (which delineated my options in writing and identified the injury from a pinched S1 Nerve, Left, L5S1, herniated disc, numbness in thighs due to nerves in groin, options:

a. Medication

b. Physical Therapy

c. Epidural injections (I submitted the fee basis document to corroborate the Document from the Durham Medical Center Neurosurgery Consult).

d.Surgery (discretionary)

I selected medication and Physical Therapy, that was an option, not a medical directive! The epidural fee basis approval demonstrates this.

At any rate it is clear by the brief period it took to come to the conclusion I was to be denied again, the total disregard for the additional documentation since the denial totally disregarded for this new evidence, disregard for my request to confer with the DRO, as far as I know no DRO was even involved, although I was required to select the DRO or normal Appeal procedure, I can clearly see that a determination has been made and no amount of countering evidence will change the predetermined result.

I received a VA Form 20-8992 today 24 August 2009 from the Winston-Salem VARO dated August 21, 2009 in reply refer to me K. Pfanzelter Veteran Service Manager. Briefly it stated the VARO has received my application for benefits.

I have no idea what benefits this is referring to since I have been denied twice and the DRO requests have gone unanswered.

I have no plans to request further reconsiderations from the same office. I am not a genius but I can see it is clearly there is only one response coming from that office.

So my question is:

1. What is that letter referring to? (VA Form 20-8992 from the XXXXXXXXXX dated August 21, 2009)

2. Should I, in the one year response time period, decide to appeal, how do I appeal to a different adjudicatory power?

Sincerely,

Edited by cannoncocker (see edit history)
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Is the VA obligated to allow me a personal hearing with a DRO? If not there would be zero point in me driving to the VARO.

Yes - If you have received a rating decision on an issue you can file a NOD and request a DRO Hearing and VA is supposed to schedule a Hearing.

Failing a DRO personal hearing How do I request a BVA appeal with a personal hearing and would that get my claim out of the W-S VARO?

To get the ball rolling for a BVA Appeal you fill out and submit a Form 9.

I do have some minor additional evidence still but would an IME nexus letter be the way to go?

Yes.

Thank you

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Thank you carlie.

I feel that covers this issue and can close this out. I am briefed enough to move forward. Time to let someone else to get helped. I will let this sit for about a month and gather the MRI discs, again, get the IMO, and request again for the DRO personal conference. If they stone wall that request I will submit the Form 9 for a BVA with personal conference.

Hopefully with the additional IMO, VA documentation, and a VARO DRO personal conference will do but am prepared to move on to the BVA.

Thanks a million to all and I hope others got some useful information from this. In general what I take from this is that you need C-4 to prove an injury if they decide you are not going to get approved so you are wasting your time if you think logic and their docotrs alone will do it. I suspect I will never get approved by the W-S VARO and the BVA is my next viable chance. Military medical notes: irrelevant once the decision is made. When 100% disability comes into reach they will resist with all methods, legal or otherwise.

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