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

[darkhorse]

Carly, wouldn't this go without saying though? Doesn't the VA know already the vet wants the highest rating possible?

DH

" 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

[carlie]

Carly, wouldn't this go without saying though? Doesn't the VA know already the vet wants the highest rating possible?

DH

They are supposed to know that.

carlie

[broncovet]

Dont count on the VA knowing anything..the VA is supposed to know they are not supposed to shred our evidence, but they dont. You need to pretty much treat the VA as if they are in first grade..rememeber that some of them dont know how to read. Those VA employees who dont know how to read are given a rubber stamp saying "Claim Denied". They put a smilie on it so they know which one to stamp. They then tell them to stamp "claim denied" on every other claim. They have another rubber stamp that says "Reasons for denial: No evidence supports in service connection". Then, they have them throw away your service medical record, and shred it.

Edited September 7, 2009 by broncovet

[carlie]

I see, thanks for the clarification. The VA claimed that you had no pain or limited motion from 8/26/99 to 6/20/2002. Although the DRO had the 7/15/03 C&P report, they still denied your claim. You now have the law and the smoking gun to present to the BVA. Can you prove limited and pain in motion before July, 2003? Am I getting closer?

CB,

The DRO decision was pretty much a rubber stamp of the prior denials.......

as many DRO decisions are.

I feel in the 90's the DRO's were a bit more of a stand-up group

and gave you a fair chance at another bite at the apple.

After that they too became a level of little accountability.

All BVA has to do is remand and more years fly by,

expeditious treatment is a joke, it's just a higher level of get in line.

jmho,

carlie

[deltaj]

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.

(:D 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

I think you need a copy of this V.A. examination so request it from the VAMC that performed the examination. My husband got his records that way by having them sent to his private doctor for treatment.