Help - Help - Need More Help

[carlie]

HELP - I'm not ashamed or shy to ask.

OK - how about this theory.

***** STEP 1

The VARO granted SC at zero percent,for R shoulder Bursitis on Rating Decision dated 6/14/2002,with an effective date of 8-26-1999.

The date on the VA's cover letter to me (with the Rating Decision) is June 20,2002.

REASONS AND BASES:

In the absence of limited or painful motion an evaluation of 0 % is assigned effective the original date of claim, 8-26-99.

***** STEP 2

§ 3.157 Report of examination or hospitalization as claim for increase or to reopen.

(b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.

(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.

***** STEP 3

Keeping in mind now - that in the following C&P -

R shoulder bursitis is ALREADY SC'd at zero % -

zero % due to the absence of limited or painful motion,

date I was notified of this rating was June 20,2002 - just 5 days short

of one year from the date of this C&P (3.157)

(o) Increases

( 38 U.S.C. 5110 ( a ) and 5110 ( b )( 2 ) , Pub. L. 94–71, 89 Stat. 395; §§ 3.109, 3.156, 3.157 )—

(1) General.

Except as provided in paragraph (o)(2) of this section and §3.401(b), date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.

(2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.

C&P dated 7/15/2003

Examining provider: Hirschfield, Jan

Approved By: Dr. Sutton 07/29/2003

REMARKS:

It is my medical opinion that her cervical neck symptoms of pain and discomfort,

and an upper neck, upper shoulder scapula trapezius Rhomboid area is definitely

related to the three traumatic events from her military experience.

(trapezius

[trəpē′zē·əs] Etymology: Gk, trapezion, small tablea large, flat, triangular superficial muscle of the shoulder and upper back. It arises from the occipital bone, the ligamentum nuchae, and the spinous processes of the seventh cervical and all the thoracic vertebrae. It acts to rotate the scapula upward; adduct, raise, or lower the shoulder; and retract the shoulder. rhomboid /rhom·boid/ (rom´boid) [Gr. rhombos rhomb +-oid ] having a shape similar to a rectangle that has been skewed to one side so that the angles are oblique.)

4.59 Painful motion.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.

It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.

Now - will this get me my danged 10 % - with the effective date retro'd ?

carlie

[carlie]

All I want is what is allowed by the regs and my own personal medical evidence,

absolutely no more yet certainly.... no less.

carlie

[pacmanx1]

Carlie and jbasser are right, once you know your diagnosis, search the reg. to find what rating matches your condition. If you request 30% and by law and regulation you meet the 10% rating, all VA has to do is deny the claim and give reason that you do not meet the requested 30% rating and they will not consider the 10% which you do meet. If by your diagnosis and the regulation that you meet the requested 30% then VA would have to award you the 30% requested or give reason why you do not. If the veteran does their homework it should work out in their favor even if it has to be appealed. Asking for more than what you are entitled to will not work. Asking for what you feel you are entitled to will work. Also keep in mind that some VA employees feel that veterans are getting free money anyway and we all know this is not the case. Let's not suggest that veterans flood VA with claims that have no real merit, which would just complicate the already complicated backlog.

Separate note, I posted a question "What is the best way for a veteran to get service connection." Some disagreed with my post but it is actually the formula that VA gives to veterans. It states that you apply for a specific rating that you feel that you are entitled to and no more.

IMHO

Edited September 5, 2009 by pacmanx1

[broncovet]

I am not suggesting "flooding claims without merit"..to the contrary. I am assuming Carlie's claim is worthy..and with Merit...the only issue is the degree..that is the percentage disability.

I also know the VA has a lot of "leeway" and makes a judgement call on the disability rating percentanges. Often it is determined that the VA lowballed the Veteran..that is awarded a lower percentage than what the law allows.

Here is a hypothetical example.

EX 1. Lets say 10 doctors all agree that you are 50% disabled. You ask the VA for a 10% disability. What level do you think you will be rated at? I will bet dollars to donut holes you will be rated at 10% or even less..and, further, you will have a difficult time getting more upon appeal, as your own low number will be used against you.

Ex 2. Lets say you get 2 C and P exams. Doc B's support 20%, and Doc C's support 50%. The Veteran requests 10%. What happens? Again, the Veteran will unlikely get more than he deserves, and is more likely to get less than what he deserves. This Veteran medical evidence supports 20% + , but he probably will only get 10% because that is all he asked for.

Ex. 3. Veteran asks for 50%, but Doctor A findings support a 10% rating and Doctor B supports a 20% rating, Dr. C suggests 50%. RO grants 10 %, citing Dr. A. Veteran appeals, asking for increased rating, citing Dr. C's report.

As above, The example 3 Veteran is more likely to get a higher rating. If the Veteran himself does not think he deserves 50%, why would the BVA think any different?

However, if the Vetran thinks he is entitled to 50%, and at least one doctor concurs, he is more likely to get the higher rating.

You guys do as you please. I am going to do my best NOT to limit my own percentage. I want to get the highest percentage the law will allow.

As Richard Bach once said, "Argue for your limitations, and they are yours"

Edited September 6, 2009 by broncovet

[carlie]

The VA does INSTRUCT claimants to specifically write what they are requesting.

I have always taken this to include the percentage they are requesting.

What I do is state that

For condition XXX as shown by medical evidence of XXX,XXX,XXX

I am requesting SC'd disability percentage of XX %.

As shown stated in 38 CFR, states XXX meets the disability requirements for XX%.

Down at the bottom of my correspondence to VA, I will have a follow up statement saying

I request the highest award possible for any and all SC'd disabilities allowed by law

that is met by the medical evidence of record.

carlie

[pacmanx1]

Carlie, I don't really understand your post. I do agree that a veteran should ask for the rating percent they feel that they meet but adding a statement that request the highest award possible for any and all SC'd disabilities allowed by law that is met by the medical evidence of record is confusing. Example: You are service connected 30% for depression and you feel that you meet the 50% rating and you apply for the 50% rating but request the highest rating possible by law that is met by the medical evidence of record which suggest that you may meet the 70% rating which would cause the rater to look at the higher rating that you already know that you do not meet. This would cause extra work on the rater's behalf and also cause delays in the decision and back log. By doing your homework and specifically asking for the rating you feel you meet is simple and direct that even a caveman can follow. I think it would give the veteran a quicker rating decision and the veteran could either be satisfied with the decision or file an appeal. Even the caveman gets confused; the first wheel was square and would not roll.

Just my opinion, yes I know that I am entitled to be wrong or that you disagree. If you disagree please file a form 9 and state your reasons.

LOL

this is your case as to you feel you should be 10% and you filed for 10% but was denied for lack of limitation or lack of limited motion, so you disagreed so they must look at all the evidence.

good luck on your claim

[carlie]

pete992,

Example,

At the time you are filing the claim say your medical evidence falls into

the 10 % criteria level - but by the time that claim is granted, additional

medical evidence shows you meet the 30 or 50 % criteria ---

that's where my conclusionary statement of,

" I request the highest award possible for any and all SC'd disabilities allowed by law

that is met by the medical evidence of record" covers any additional medical evidence

that has become a part of the record since my last correspondence, and/or anything

else that I may have over-looked.

I feel all claims correspondence should end with something similar to this.

Berta uses a specific quote from VBM to include in her statements.

carlie