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Bva Decision, A Precedent - Yes Or No

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ken1939

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I filed a form 9 for a BVA hearing. I am claiming headaches secondary to SC cervical DDD and also for lower extremity pain secondary to SC Lumbar DDD. My headache diagnosis is tension headaches and contraction headaches SC at 0 %. I am appealing the rating and find many favorable BVA decisions where the diagnosis is not migraine and nearly duplicate my situation The ratings are as much as 30%. My lower extremity diagnosis is radiculopathy, denied because radiculopathy is a symptom not a condition. I have found literally hundreds of BVA decisions where the diagnosis is radiculopathy and not one was denied or remanded because of the diagnosis of radiculopathy. I have read somewhere in a forum that BVA decisions cannot set a precedent. But if there are many, many of these decisions, will this be enough to prove my claim?

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http://www.uscourts.cavc.gov/

Go to decisions.

Unfortunately not all CAVC decisions set precedent.

A search there might help you find what you need.

The VA puts no weight on copies of similiar BVA awards regarding medical issues.No BVA decision sets any precedent.

However in your case- some of those BVA decisions (you could put the BVA case hyperlinks into the response to the claim instead of the whole decision )fully support that this is in fact a ratable disability.This is a good point of argument.

My DRO couldnt read. Maybe yours cant either.

What did the DRO say as to your evidence?

Did they list the IMO as evidence and then refer to it in the decision or did they knock it down-if so why- or did they not address it at all?

If the DRO failed to even consider the IMO and it complied fully with the IMO criteria here in the IMO forum- you could ask them to CUE themselves as they failed to adhere to to the evidentiary requirements of 38 USC and 38 CFR-those too have been posted here recently.Send the CUE themselves request Attention to and then pt the DRO initials that appear in the pper right hand corner of the decision with the RO code numbers.

That worked for me when the DRO I had didnt know how to read.

I immediately got another DRO review (but SAME DRO!)

But she still couldnt read.

I brought up these evidentary errors and others on my I-9.

In a past claim my I-9 was so strong that they reversed themselves and awarded at the RO level without BVA transfer.

These days they dont even read the I-9 in many cases. If they did we would not have so many BVA remands.

Asking them to CUE themselves here might get you a better decision if they failed to even consider your IMO and it complied fully with the IMO format they will accept.

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http://www.uscourts.cavc.gov/

Go to decisions.

Unfortunately not all CAVC decisions set precedent.

A search there might help you find what you need.

The VA puts no weight on copies of similiar BVA awards regarding medical issues.No BVA decision sets any precedent.

However in your case- some of those BVA decisions (you could put the BVA case hyperlinks into the response to the claim instead of the whole decision )fully support that this is in fact a ratable disability.This is a good point of argument.

My DRO couldnt read. Maybe yours cant either.

What did the DRO say as to your evidence?

Did they list the IMO as evidence and then refer to it in the decision or did they knock it down-if so why- or did they not address it at all?

If the DRO failed to even consider the IMO and it complied fully with the IMO criteria here in the IMO forum- you could ask them to CUE themselves as they failed to adhere to to the evidentiary requirements of 38 USC and 38 CFR-those too have been posted here recently.Send the CUE themselves request Attention to and then pt the DRO initials that appear in the pper right hand corner of the decision with the RO code numbers.

That worked for me when the DRO I had didnt know how to read.

I immediately got another DRO review (but SAME DRO!)

But she still couldnt read.My POA told me she said she could not read my IMOs.

He was thrilled however because he claims he got her to order a VA opinion.

I wasnt thrilled because I said to him if she cant read a 2000 buck IMO from Dr Bash and a freeby from a former VA neurologist -how the hell can she read a VA opinion?

I brought up these evidentary errors and others on my I-9.

In a past claim my I-9 was so strong that they reversed themselves and awarded at the RO level without BVA transfer.

These days they dont even read the I-9 in many cases. If they did we would not have so many BVA remands.

Asking them to CUE themselves here might get you a better decision if they failed to even consider your IMO and it complied fully with the IMO format that they will accept.

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Thanks Berta. It looks like we are both posting at the same time.

I found your web site and it is loaded with cases where the diagnosis is radiculopathy, even cases including the medical definition as a 'disease of the nerve root'.

The DRO didn't need to address the IMO or tests or anything else. Since the diagnosis is radiculopathy the case is denied for " the medical evidence of record fails to show that a chronic disability has been clinically diagnosed. It is noted that symptoms (to include pain and radiculopathy) are not disabilities and consequently, are not subject to service connection."

The first denial simply stated that.it was being denied "because the medical evidence of record fails to show that this disability has been clinically diagnosed." Apparently this DRO makes up his own rules as to what a disability is.

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The first denial simply stated that.it was being denied "because the medical evidence of record fails to show that this disability has been clinically diagnosed." Apparently this DRO makes up his own rules as to what a disability is.

This sounds like one of my older C&P exams. The doc said, "I believe that his complaint of joint pains in the hands is legitimate, but there are no clinical findings to substantiate a hand disability."

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"It looks like we are both posting at the same time."

I think we also had the same DRO!

I feel you should ask them to CUE themselves, send copies again of your diagnosis and the IMO and also cite any CAVC case you can as to anything that shows the DRO is wrong.

The DRO job description should be here under a search. I posted it here 5 years ago and used it when I asked them to CUE themselves as the DRO I had did not conform to her own VA job description under Duties Of Decision Review Officer in M21-1 MR.

"since the diagnosis is radiculopathy the case is denied for " the medical evidence of record fails to show that a chronic disability has been clinically diagnosed. It is noted that symptoms (to include pain and radiculopathy) are not disabilities and consequently, are not subject to service connection."

BIZARRE!

Do you have a vet rep who can help challenge this crap?

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