Travelboard Judge Decision

[Steppenwolf]

Turned down again. DAV tells me that i have 120 days to ask for reconsideration. i don't see anything in the envelope that says that.

Too many points to rehash but key missing VAMC files are mentioned as found. I have not seen them in 40 years. Who do I ask for copies?

[SLEDGE]

The VARO dudes are always talking about the controlling percentages of TDIU.

There are, in fact, no actual percentages of disability to focus on according to VA law.

The percentages are mentioned first in part A, then shot down in part B.

The VA jerks only use part A except in very rare occasions.

If TDIU has been 'mentioned' by a claimant they are supposed to elude to both A and B with rationale for the grant or denial.

If the RO jerk only mentions part A, and only uses part A to kill the consideration of TDIU or the granting of TDIU, you know where you stand with the VARO.

It's time to find a lawyer.

sledge

[Commander Bob]

...

It's time to find a lawyer.

sledge

[Steppenwolf]

Instead of replying to everyone who has taken the time to answer my question here; thank you! This has been one of the best sites to get helpful information in my appeal.

There is so much to know about VA claims for disability. One of the problems that i have is knowing what all of the abbreviations mean. And sometimes the process reminds me of a complex game of simon says. So if one doesn't know how to say "may i" you have to go back to the beginning and start all over again.

i have been playing this game with the VA since early 1970. So, no Pete, i am not new to VA Claims however i am always ready to be surprised by information that neither i nor my vast assortment of VSO's over the years. In 1977 or so i became friends with an attorney who wanted to represent me pro bono. He was for the most part a good attorney but didn't know VA law and it's actually possible that his contribution to my file has not helped my cause.

Every lawyer that i have spoken with since my appeal has been floating around has suggested that i wait until the decision. Now that i have the decision my next step is to reply. The clock is getting short. i have about two weeks to write and tell them something.

In those choices that i listed it sounds like i have to give specifics about why i disagree. The one thing that the attorney pointed out after reading the whole decision was "benefit of the doubt". His point was this: "You have a doctor who said that you have X and that it is related to active duty and they say that it is not related. You doctor's opinion provides benefit of the doubt." The truth of the matter is that there is more than that. The biggest problem as i see it is this: the amount of time it has taken to connect the dots makes it near impossible to even remember that there are indeed unconnected dots. i requested transcripts from my hearing and copies of my last C&P exam. There are tons of old and new mistakes including the judge talking about a letter that she wrote where she explains it about one thing when in fact it is about something COMPLETELY different. Can i say THAT in my reply?

[Berta]

"In those choices that i listed it sounds like i have to give specifics about why i disagree"

Yes -=this is the heart of the appellate process.

"There are tons of old and new mistakes including the judge talking about a letter that she wrote where she explains it about one thing when in fact it is about something COMPLETELY different. Can i say THAT in my reply?"

Yes- attack every error they made in interpreting the medical evidence.

"The one thing that the attorney pointed out after reading the whole decision was "benefit of the doubt". His point was this: "You have a doctor who said that you have X and that it is related to active duty and they say that it is not related. You doctor's opinion provides benefit of the doubt."

Right- as long as the independent doctor's credentials and expertise give their opinion validity- medically speaking-

a lousy VA doc opinion plus a strong IMO opinion equals Benefit of Doubt-

The VA must determine these opinions are of equal weight-for and against-

unless the VA can somehow contradict the IMO doctor with complete medical rationale.

Can you tell us why they did NOT extend Benefit of Doubt?

Their exact wording will help us understand why they denied.

[Pete53]

I agree with Berta.

[Steppenwolf]

The judge's explanation is about 3 pages long. The last paragraph says: " As a propnderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule does not apply, and the veteran's claim entitlement to service connection for prostate disorder is denied. See 38 USCA 5107 (West 2002 Supp 2009 )

However, unless you want to see every word i can tell you that my IMO/IME letter from a well known well respected urologist who reviewed both service and VA records pertaining to a chronic recurring prostate disorder: " was incurred in and aggravated by his active duty service. " He had noticed on "Standard Form 89" aka Report of Medical History that my Jan 1967 report and my Feb 1970 report noted "frequent and painful urination". He read my VA medical notes as early as Oct of 1970 "noting that the veteran had an intermittent history of prostatitis. Examination reveals that he had an enlarged and 'baggy' ( boggy ) prostate." He also read a letter and medical records from the family physician who treated me from April 1970 until April 1972 for prostatitis. i was discharged in April 1970. The judge says: "..the VA examiner's, and the board's review of the service records shows no diagnosis of prostatitis, the board simply does not find Dr. M's opinion to be persuasive." " The board acknowledges that the veteran was diagnosed with prostatitis within one year from discharge from service. However, prostatitis is not a disease for which service connection can be presumptively granted." See 38 CFR 3.307 (a)(3); 3.309(a) (2009) "Therefore, although the veteran did have prostatitis the same year he was discharged from service, such fact does not show that it was incurred or aggravated by his service."

One other paragraph in her decision says" The board acknowledges the veteran's contentions that he was told that he had an enlarged prostate at his discharge examination and not to say report it to avoid delaying his release from the service. However, the veteran's assertions are contradicted by the findings on the discharge examination, which plainly revealed a normal prostate." Kinda crazy to think that the exit exam doctor suggested that we "lie a little" and " we can handle this on our own". Why would he then enter the reality of an enlarged prostate? So this seemed to be the dagger in the heart. But around Christmas this past year i found that doctor and asked him if he would make a statement to that effect. He said that he would but wanted something more to refresh his memory. He's now a teaching physician at a medical school. i was going to visit him with pictures and records but ran into the same VA mistake machine that i ran into in 1970 and have been unable to visit with him yet. And if prosatitis is only worth zero percent at best then why waste my time?

If you read my other post from yesterday about what to choose as a reply; you will see that i mention what was missed back in the very first decision which was a denial. But in the denial it was mentioned that medical records came in late that were not considered for that decision. The records were the private doctors records with details about what i was treated for including the prostatitis, urinary problems, and notes about the medications the VA RX'd which almost killed me from liver failure. Notes that included the phone call he made to the GU clinic suggesting that they hospitalize me. It was after that call that my VA records disappeared at the Miami clinic.

"In those choices that i listed it sounds like i have to give specifics about why i disagree"

Yes -=this is the heart of the appellate process.

"There are tons of old and new mistakes including the judge talking about a letter that she wrote where she explains it about one thing when in fact it is about something COMPLETELY different. Can i say THAT in my reply?"

Yes- attack every error they made in interpreting the medical evidence.

"The one thing that the attorney pointed out after reading the whole decision was "benefit of the doubt". His point was this: "You have a doctor who said that you have X and that it is related to active duty and they say that it is not related. You doctor's opinion provides benefit of the doubt."

Right- as long as the independent doctor's credentials and expertise give their opinion validity- medically speaking-

a lousy VA doc opinion plus a strong IMO opinion equals Benefit of Doubt-

The VA must determine these opinions are of equal weight-for and against-

unless the VA can somehow contradict the IMO doctor with complete medical rationale.

Can you tell us why they did NOT extend Benefit of Doubt?

Their exact wording will help us understand why they denied.