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.

[Berta]

That is a good point Broncovet-

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

and you are correct that this would surely result in a SSOC but if the evidence was strong enough it could possibly result in an award.This happened to me with 2 of my past claims in the late 1990s.The I-9 had been filed yet additional evidence I sent changed everything.

I also was set a few months ago for BVA transfer of my CUE claim but they suddenly pulled that claim and set it to the Nehmer people.

The BVA is taking at least 2 years before they even get a claim on their docket.

Some claims at BVA have been remanded more then once.

I used to believe that a claim should be fought aggressively at the VARO level because of the long wait at the BVA for a decision.

That was before Sheddergate and the FACT that many of us simply cannot get the ROs to read our evidence.

The BVA will read it all.But it adds years to the long wait.

This claim here needs VERY strong evidence.

Based on what jet187 posted, there was no prejudicial VCAA error here and the VARO clearly stated what is lacking in the evidence.

I dont get this part:

"Formal finding on the Unavailability of SMRs 6/19/08" yet they do refer to some SMRS.

[jet187]

Berta,

thank you so much for the info you provided.

I will submit my additonal evidence directly to the VARO for now.

My additional evidence is a 2002 IVDS VA Training Letter, 2008 VA MRI results,a personal statement in support of claim, a 38 USC 5103A©Regulation(4)that states"In a claim for disability compensation, VA will provide a medical exam or obtain a medical opinion base upon a review of the evidence of record if VA determines it is necessary to decided the claim. A medical exam or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but:

A)Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability.

B)Establishes that the veteran suffered and event,injury or disease in service or symptoms of a disease listed in 3.309,13,16,17 manifesting during a applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption,and

C)Indicates that the claimed disability or symptoms may be associated witht the established event,injury, or disease in service or with another service connected disability.

Paragraph (4)(i)© could be satisfied by competent evidence showing post-service treatment for a condition, or other possible association with military service."

They never provided me a C&P exam to verify my injury/disability,they just denied me outright, so I am hoping to beat them on that Regulation,and beat them with the documented in service injury report, post service treatment records & hospital visits along with work related injuries aggravating the original injury and showing on going chronic symptomology of the original injury.

My Chiro/Ortho did provide statements that said they reviewd all available records(SMR included) & they have treated me since discharge & in their medical opinion it is "more likely than not" from the original injury.

I did not review the IMO guidelines in this forum, I did not know they existed. Maybe I should have read this prior to going to the Chiro/Ortho & gettomg their statements.

I would like to know the difference of prejudicial vs. legal VCAA letter.

Thank you very much for the feedback!

[Berta]

In 2002 AND 2003 Spinal disorders were amended in the regulations.(and the IVDS C & P)

http://www4.va.gov/vetapp08/files2/0810164.txt

In most cases they should award based on the older or newer criteria-which ever one is most favorable to the veteran.

"I would like to know the difference of prejudicial vs. legal VCAA letter"

That can be found in countless remands at the BVA.

A prejudicial VCAA letter is what I got years ago.

It did not advise me as to what evidence I needed and did not refer to or enclose a VCAA response form.It did not refer to Hupp decision (for widows) and in veteran's claims they refer to Pelegrino and other precedent setting decisions.It was a blank form letter without any highlighted statements at all that were specific to my claim.

BVA caught these errors right away but stated I had mitigated the prejudicial errors with my evidence.

Based on your post it appears to me that you were informed of the exact evidence you needed in your VCAA letter.

[jet187]

Broncovet,

thanks for the reply & feedback.

Great advice from all of you.

I am sending the VARO the evidence I listed in a reply to Berta below, it is my hope that the VA people see the new evidence & also realize that they never sent me to a C&P to verify my disability,issue a SSOC & order a C&P and put the breaks on before they send my appeal to the BVA.

I understand that if it goes to BVA they will likely remand back to VARO due to the lack of C&P,which will add more wait time to the claim.

I would rather just try & get this done at the RO level by hoping that the additional evidence I am sending in will tip the balance in my favor.

But I know I shouldn't bank on the VA to see clear cut evidence and make a correct decision at this point of the game either.

Bottom line,I believe I have met the 3 requirements to establish service connection:

1)in service documentation of injury

2)a current condition with medical diagnosis

3)and a medical nexus connecting 1 & 2

Yet,they never sent me for a C&P and Denied!

I believe weighing the new evidence should help me, the VA not sending me a C&P & violating the 38 USC Regulation,IVDS Training letter,VA MRI Report,& a Personal Statement in Support of claim outlining all the errors.

Do you think I am attacking this the right way or not & setting myself up for a big letdown?

Thanks for any feedback

[jet187]

Broncovet,

what is a MFR?