Va Form 9

[jet187]

Hi all,

hope some of you can help me with an answer.

Filed Back claim in Sept. 07

Denied for lumbar strain in July 08, filed NOD and asked for a DRO Hearing.

After over 2 yrs.I received a SOC from a DRO Review with another Denied.

I am not sure who dropped the ball, VA or DAV rep,I say Both, I know I asked for a Hearing

thru my DAV rep.

Filed VA Form 9 and asked for a Travel Board hearing by live video conference last week.

I mentioned in the Form 9 that I was never afforded a C&P exam to verify my disability,even

after submitting in service injury report,Dr.reports,evidence of chronic symptoms/treatment after service,etc.

I submitted my statement of why I think the VA decided my case incorrectly but didn't have time at DAV office to make a

copy and submit as evidence the SOC Regs.38 USC 5103A©which addresses the C&P exam issue and I wanted

to submit a VA Training Letter for IVDS also.

Can I submit both of these as a additonal Statement in Support of Claim addendum(piggy backed)to the Form 9 filed?

I want make sure the BVA sees all the mistakes made on my claim.

Any feedback and assistance is much appreciated.

[carlie]

Hi all,

hope some of you can help me with an answer.

Filed Back claim in Sept. 07

Denied for lumbar strain in July 08, filed NOD and asked for a DRO Hearing.

After over 2 yrs.I received a SOC from a DRO Review with another Denied.

I am not sure who dropped the ball, VA or DAV rep,I say Both, I know I asked for a Hearing

thru my DAV rep.

Filed VA Form 9 and asked for a Travel Board hearing by live video conference last week.

I mentioned in the Form 9 that I was never afforded a C&P exam to verify my disability,even

after submitting in service injury report,Dr.reports,evidence of chronic symptoms/treatment after service,etc.

I submitted my statement of why I think the VA decided my case incorrectly but didn't have time at DAV office to make a

copy and submit as evidence the SOC Regs.38 USC 5103A©which addresses the C&P exam issue and I wanted

to submit a VA Training Letter for IVDS also.

Can I submit both of these as a additonal Statement in Support of Claim addendum(piggy backed)to the Form 9 filed?

I want make sure the BVA sees all the mistakes made on my claim.

Any feedback and assistance is much appreciated.

jet,

The short answer is - YES - you can continue to send the BVA information / evidence right up

until the time a decision is made at the BVA. Anything I wanted to send them I would run by

my VSO first (since you have one) and I would also submit a Waiver of RO consideration with it.

I see you are getting in a big spiders web if what you say, is in fact correct.

If you requested a DRO Hearing in writing to the VARO and were only provided with a DRO De Nove Review,

the first thing I think the BVA will do (this is of course after you have waited about 24 months),

is to remand the claim back to your VARO and instruct them to provide you with a DRO Hearing.

JMHO.

[Berta]

Carlie is 100% Correct!

The BVA when they awarded my AO death claim, took note in the decision of the duplicate IMOs and evidence I had sent to the VARO for 6 years-which they never considered.

I also continued to send the BVA pertinent evidence ,bypassing the RO after the BVA transfer was done.

I even awaited a 4th IMO the very day I got my BVA award letter.

I also had a major VCAA violation that was stated on the first page on my I-9 along with the statements regarding all of my ignored medical evidence.BVA took note of that as well.

I also had a De Novo review at Buffalo RO that was verbatim copy and paste of the same as the original SOC decision.

So much for the idea of "de Novo".

If all 3 points above had been corrected early on-my claim would not have taken 6 years in process then another year for payment of the claim.(The retro $$$ was unusual situation and the ignored the regs on that until I went to the OGC.

These same points turn up often in BVA remands-prejudicial VCAA letter and probative evidence that was not addressed by the AOJ,and they should be highlighted on page one of the I-9 right away.

The first thing the BVA does is to check the VCAA letter.

Mine was prejudicial and my lousy vet org tried to get me to believe it was a legal VCAA letter.All of those reps have 'moved on' as I raised a big stink with the OGC about theit lack even at their highest level of knowledge of basic VA case law.

An Improper VCAA letter is something a rep should pick up on right away and question it directly with the RO as the claim can easily be denied due to the faulty VCAA letter.

Did you obtain an IMO to support your claim?

The BVA found however that my medical evidence (ignored by RO for 6 years to that point) overcame the prejudicial damage of the VCAA letter. Your medical evidence might do that too f it s strong enough to overcome the RO denial.

Your rep should see if the VCAA letter you received was prejudicial to you in any way.

"I mentioned in the Form 9 that I was never afforded a C&P exam to verify my disability"

That is unconscionable!

What rationale did they state for not giving you a C & P?

,"even

after submitting in service injury report,Dr.reports,evidence of chronic symptoms/treatment after service,etc."

Did they list this as Evidence in the denial?

Edited November 3, 2010 by Berta

[jet187]

Carlie,

thanks for the feedback, much appreciated.

Happy now I know I can submit further evidence.

I will be calling my DAV rep. tomorrow to tell him I

want to submit the evidence, and I am not taking no for an answer!

I agree I am caught up in a big web!

I am on 3 yrs with this claim, 2 yrs it was locked up for

a DRO decision,now I have no choice but go to BVA, so if the BVA kicks it back to VARO,

I guess whats another 2 yrs?

They had my claim screwed up since the beginning

Thanks again.

[jet187]

Berta,

thanks for the feedback, much appreciated.

Where do I submit my additonal evidence? to the VARO or will

I get instructions to send it to the BVA?

I am guessing the BVA transfer has begun with the Form 9?

I am not clear on the difference of prejudicial vs.legal VCAA letter.

can you explain?

Yes, I did get an IMO from my Chiro/Ortho stating "more likely than not"

my back disability is the result of my injury in service.

They totally ignored it.

They did not give any rationale for not providing a C&P exam to verify,

they didn't even mention it!

The SOC list of evidence:

Veterans Application for Comp & Pen 9/20/2007

VCAA letter sent 3/12/08,requesting information in support of your claim.

Several service treatment record pages, dated April 13,89 thru Nov.12,89.

Email response received from VA Records Management Center 6/5/2008

Formal finding on the Unavailability of SMRs 6/19/08

Statements in support of claim & attatchment 5/5/08 & 6/19/08.

The SOC Reasons & Bases mentioned the in service injury report, and goes on to say

"Other evidence you have submitted shows additional injuries to you back since

your active naval service. None of the evidence makes reference to a relationship between

your back problems and your naval service. Application for service connection for back

injury was not received until 2007,15 yrs.following your release from active duty. There

have been intercurrent injuries to your back. We are unable to establish servie connection

for residuals of the in-service lumbar muscle strain, because the evidence does not show

you have a chronic low back disability that is related to the April 89 muscle strain."

I guess the Chiro/Ortho IMO reports that state "more than likely as a result of injury in service"

does not qualify as a nexus to the original injury?

I also guess the the chronic symptoms & treatment since service don't count either.

I submitted hospital ER reports,Chiro treatment,VA 2008 MRI report of IVDS/DDD of L5-S1 with Sciatica

and work injuries as evidence,medications,but I guess that doesn't qualify

as continuity of symptoms.

I was told by my DAV rep. to submit my work injury reports also, but now the new DAV rep tells me that might hurt me?

They told me to submit it!

What to do?

Thanks

[Berta]

"I am guessing the BVA transfer has begun with the Form 9?"

You will get a letter from the VARO advising the transfer to the BVA is being made.

"Where do I submit my additional evidence? to the VARO " Yes-until the transfer is actually made.

Once I verified the BVA actually had my claim (I checked through the BVA ombudsman whose email addy is at the BVA web site (via VA web Site)I sen additional evdence to the BVA, by passing the VARO as they had failed to read any of it since I filed the claim.

I dont know if others would agree to do this but at some point the BVA gets the entire C file anyhow so additional evidence after BVA transfer might just sit in a temporary C file and get lost at the RO level.

"prejudicial vs.legal VCAA letter.

can you explain?"

That info has been posted at hadit and I will try to find it.

Did your IMO doctor fully follow the IMO guidelines I posted in our IMO forum.

In most SC claims, any IMO doc MUST refer directly to documentation in the SMRs and then give complete medical rationale as to the nexus to the disability you have now.

"because the evidence does not show

you have a chronic low back disability that is related to the April 89 muscle strain."

They need proof of chronicity- such as treatment records -post service- that show ongoing problems since service.

"was told by my DAV rep. to submit my work injury reports also, but now the new DAV rep tells me that might hurt me?

They told me to submit it!"

The IMO should strongly state -with full medical rationale- that the work injuries were due to the inservice injury--- if that is why they occurred.

For example a severe inservice back injury could cause an on -the- job injury.Friend of mine had documented back injury in service and worked for the VA many years after service. He had another back injury while working which VA found was directly related to and caused by his inservice back injury.He had quite a bit of medical documentation inservice as well as in the years after for treatment for this back disability.

"the Chiro/Ortho IMO reports that state "more than likely as a result of injury in service""

If this doctor did not refer directly to your SMRs and then give a complete medical rationale for this statement,this is why the VA did not consider the IMO.

[broncovet]

You have gotten some good advice from Carlie and Berta, but I would add that I am pretty sure if you submit evidence AFTER the SOC the RO will have to do a SSOC (Supplemental Statement of Case). Of course, we know the Va does not necessarily follow their own rules, but I think a SSOC is required when the Veteran submits new evidence after the SOC.

Bottom line is that you can submit new evidence, but I think you would want to weigh whether or not this new evidence was outcome determanitive to your claim because it will likely cause more delays, for the RO to prepare a SSOC.

One option you have is to NOT submit this new evidence, and wait to see if you get the benefit you want. If you do not get the benefit you want, you can submit the "new and material evidence" and ask for a MFR.