Confused 30% Rating Decision

[rese]

Hello All,

Well, I WON !

A 30% rating (and I am grateful) in Febuary 2006 but there are too many things wrong with this and my DAV SO is uncertain as to how to proceed with the NOD. Not only is my SO confused, but every Vet Rep I have confided in thus far... so I bring my case back to HADIT for procedural guidance on the following questions.

1. this rating is for pain and 2 scars. can anyone tell me what is the code for cavernous hemangioma active disease of the left forearm, wrist and hand? In other words, why didnt they rate the underlying diease in addition to the pain and scars? the pain was rated under limitation of motion, yet I didnt qualify for the minimum (wrist) rating there. I tried to find a code but the closest I could come was similar diseases on the tumor rating chart A because chart B is for Brain tumors and chart C is for minor tumors. This condition (according to C&P exam) is active, progressive and debilitating blood vessel tumors. I know many here dont have a medical background but I just want to know where the code is. Is it possible VA dont know either? is it possible they need to make one up? let me say also that I have a medical background (clinical lab) but I cant find the code! any help would be appreciated!

2. What do you think about an EED? this was a won repoened claim. I was initially denied in 1980 for exactly the same condition! I have an appeal on file and there is no response from them in my C-file! how common is this? I must have just forgot about it after a couple of appeal statements and the condition got worse (it reoccured).

3. I had surgery in-service that resulted in radial nerve damage. This is documented in the hospital records which strangely enough, was not mentioned in any way in the evidence considered to grant the claim. How reasonable is that, no mention of hospital records?--in their possesion as evidence to grant the claim! in any event, can this be part of a NOD or a whole new claim? I dont know how to handle this.

How should I go about this NOD? what should it look like? it there a certain form? I think I need the best minds here but please whatever you can add likely can help since too many already dont have a clue.

[rese]

Hi Berta,

Well, I did a NOD today. so now I wait for the SOC. I what will this look like? is it some adversarial type document?

"this is odd that there is no denial in the c file at all....."

there was an initial denial, but after a couple of statements in support of claim, the c-file contains no VA follow up, and I dont remember getting anything.

"In the C & P results did the VA doc state their opinion as to how this disability affects your employability?"

here are some excerpts

"He is unable to wear gloves."

"He states that he cannot write more than a few sentences at a time as he develops extreme pain. He also cannot type for more than five to ten minutes."

"He is left-handed and the pain is excruciating in the left wrist."

on balance, no opinion but states what I said.

"Also- has the VA made any determination on SMC?"

no one has said anything to me about SMC

Now, let me ask, based on what you know would you ask for TDIU or an increased rating? and if an increased rating how much?

In addition, does anyone know anything about how to rate cavernous hemangioma in the tumor charts in M29-1 part V. I will attach it below.

Again, I asked about the SOC. Please give me as much detail on what it may be in their SOC and where are they drawing their information from, what does it look like?

How should I attack it? I read somewhere it should look and read like a graduate student's paper, is that true?

rese

TUMOR_RATING_CHARTS_M29_1_Part_V.doc

[Berta]

A SOC ,Statement of the Case, is where the VA expands on their denial-

They have to consider points made in the NOD especially as it refers to any evidence they have not considered-that was sent with the NOD or referred to in it.

They will give Reasons and Bases for the continued denial.

Also they will list the evidence they used in reaching their decision.

Sometimes they miss evidence or misinterpret evidence. Often they maniipulate the C & P results-so it is best to have the actual C & P results before you receive the SOC.

Often the best thing a veteran can do is study the rating schedule and claims at the BVA-through the VA web site- to see the rationale of VA in deciding a higher rating-on a similiar type claim.

The rating schedule shows what they look for as to increased rating.

If you have not mailed the NOD yet-I would ask them for the SMC "K" rating under 38 USC 1114.

TDIU -Total Disabilty due to Unemployability depends on medical evidence (such as a strong doctor's statement) showing that the SC disability prevents or hinders substantial employment.

The vet in the BVA case link had TDIU determination due to many factors-

The rating they gave you could be correct except for the SMC-"K" award -this too is a medical determination-

based on whether you have complete "loss of use of " the dominant hand.

If a vet cannot pick up coins, feel difference between hot and cold water, dial a phone, even as you mentioned type affectively- this can be considered as loss of use of hand-

it all depends on the evidence that shows how severe the hand disability is-

I always say one should respond to the SOC- attempt to argue each point in it that is incorrect-

if VA's C & P doctor is wrong tell them, if the medical condition is not properly described tell them,

if they have overlooked any evidence at all for a higher rating, tell them in the SOC response.

A vet has 60 days (they count holidays and weekends ) in this response-it can trigger an award, or trigger another SSOC, or even another C & P- it is one more way to expand the evidence you have and make sure they consider it all.

They are going by the C & P results and how the rating schedule applies to your symptoms to give you the 30%.

If your condition falls medically into a higher rating criteria-this is what they have to be told in the SOC response.

An Independent medical opinion could help your claim-and if the affect to your employabiity is severe, this IMO could help with a TDIU claim.

"Excrutiating Pain" as the C & P indicates-

meds for excruciating pain can also be a factor in determining severity of a condition-

some pain medication is so strong that ,along with the disability itself, it precludes employment-this too should definitely be mentioned to the VA- the meds you take and dosage for the pain-

Also you mentioned scars-I cant determine if they considered or rated them in your award-

If you go to http://www.va.gov/index.htm

and click on the left link to the Board of Appeals, then in the search engine you can put hand for a search and then scars for a search and determine better how they rates these conditions.

Edited April 18, 2006 by Berta

[rese]

Hello Berta,

about your question

"Also you mentioned scars-I cant determine if they considered or rated them in your award-"

they where rated at 10% each

A question for anyone in the HADIT community...

if new evidence is submitted with or closely following the NOD and nothing is submitted after the SOC has been issued does it hurt the case or affect it in any way?

Also if I refer to VA out patient records they should consider, do they expect me to get them and submit?

thanks for you input

rese

[Berta]

They 'might' get the out patient records but better to get them yourself and submit a copy in support of the claim-

"if new evidence is submitted with or closely following the NOD and nothing is submitted after the SOC has been issued does it hurt the case or affect it in any way?"

It means that if the SOC denied and it states the reasons and bases have not been satisfied with evidence,

and if-within 60 days of that SOC receipt-no further evidence is submitted, the VA will send (or attach to the SOC) an I-9 formal BVA appeal form. The appeal will get docketed and then after 2 years or more the BVA will make a decision.

I have received SSOCs in the past .I reponded to the initial SOC and sent more evidence, got SSOC , sent more evidence, etc etc and than finally was awarded my claims.

Had I sent the I-9 (which I did-these are older claim I had) but not done anything further to expand my evidence at the VARO- the claims could have taken as long or much longer, and without the expanded evidence, I would have lost at the BVA anyhow.

At some point evidence puts you into the Relative Equipoise doctrine-

If positive evidence can equal negative VA evidence, the Benefit of Doubt regs say the vet succeeds.

They weigh' the evidence- but they own the scale.

A veteran with probative evidence should pound them on this reg-

38 USCS 5107- "approximate balance of positive and negative evidence"

I have sent a copy of this reg with many claims I helped with-and my own-

and asked them for a detailed explanation of their application of this reg to the veteran's overwhelming and probative evidence,if the benefits sought should remain denied.

Example: C & P doc takes a few minutes to opine in the C & P worksheet that the disability does not fall into higher level on an increased rating claim.The doc states a few reasons-veteran is in touch with reality, was well groomed, and has no recent hospitalization for her SC condition.

Vet carefully studies her VA med recs and finds that her disability -when considering all med recs- does fall into higher rating criteria.

She invests in a good IMO knowing the cost can be recovered with a higher award and gives the IMO doc copy of the C & P results, her VA med recs, and copy of the specific VA rating schedule.

IMO doc agrees she fully warrants a higher rating and the IMO doc cites specific medical evidence in her med recs and also cites their background and expertise in the specific disability area to support their opinion.

One doc for and one doc against= Award of higher rating.

This sounds easy but they own the scale and so you must be strong in your insistence that they apply 38 UCS 5107 to your claim properly.

I have 2 IMOS for and one VA doc sort of against-

The VA doctor admitted they only used a "few" med recs to develop their negative opinion- Dr. Bash had the whole shibang-for his IMO- when I re-read this VA opinion it actually supported my claim in many ways-

there were a few statements there that were very good -but I had to highlight the positive stuff over the negative stuff- which was minor.

Then the VA (my vet rep is very disturbed by this) denied on the basis of this sole VA opinion and still refused to consider my other IMOS-

I have played this game before with them-for four years- I actually like it-

everytime they state something negative, I find considerable more evidence to combat them.

They did finally read Dr. Bash's opinion in January because I told the IG these people obviously must be illiterates that tax payers (many In harms Way) are paying salaries for. Suddenly they must have gone to night school for English 101-

A decision on that claim was then made ,but they are deciding my CUE claim too so I dont know what is what.

My long point here is- if you have a valid claim- which 99% of you do----there is always a way to find more evidence to support it,as well as to consider getting an IMO.

I think these big service orgs who employ people to represent us, that dont have a clue about claims advocacy nor keep up with the actual regs- should can them all and use the money they save for an IMO trust fund.

Vets signs POA and based on the need- the vet org buys the IMO for them.

An agreement could be signed that-if the vet is successful due to the IMO- the vet will re-pay the vet org.

Although the vet org will lose money on some IMOs, still they wont be close to supporting the expense of vet reps salaries.

[rese]

Thanks Berta & HADIT friends,

Questions:

when I request my c-file, do they include everything that is in the file?

is there a difference between a c-file and SMR?

rese

[Berta]

Yes- the C file is the Claims file-

they usually send you everything in it (even the stuff they say they 'lost')

SMRs-Service Medical Records-

you can get a complete copy of them at the NARA web site-

Click on Military Service Records at :

http://www.archives.gov/

Sign, copy and mail the bar coded thing and they will associate that with your online request -it takes about 4-6 weeks.