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Preparing For A Hearing - On My Own...


justrluk

Question

Good Morning -

I've received both IM and forum feedback regarding the preparation for a hearing. LSS: my hearing is in two weeks and my VSO just quit (not just me, the whole organization). I received this feedback in another thread:

Sergeant G wrote:

Justrluk,

Preparing for the BVA hearing was not as labor intensive as were earlier stages of my appeal. By the time I had my BVA hearing, I had already conducted 95% of my research as a result of preparing for DRO hearings, writing notices of disagreements, filing the substantive appeal, etc. Therefore, I just had to compile information I already had and tailor it to attack the Statement of the Case issued by the regional office.

Aside from compiling the information, I prepared by making an outline of the relevant issues and supporting arguments. Using the outline, I also practiced presenting my information. I sort of had a “script,” but my goal was to sound as though I was speaking with a conversational tone (without reading from my outline). I wasn’t sure if the Veterans Law Judge was going to ask questions throughout my presentation, or to just let me “run with it” by allowing me say everything I wanted to and then he would ask questions afterward. I would advise you to prepare with the assumption that it will be the later scenario, just so you don’t leave anything out. In my case, the VLJ already scanned my substantive appeal before the hearing and just asked a few questions to clarify my arguments. Therefore, I didn’t even go through my script/outline. However, it is definitely better to be over-prepared rather than not.

As for conducting the actual research, there are a few things to keep in mind. In law school, students are taught to use the “IRAC” method, which stands for “issues,” “rules,” “application,” and “conclusion.” First, make sure you have narrowed down the specific issues in dispute. That will provide a roadmap to finding relevant statutes, regulations, and case law (i.e., “rules”). After you do this, look at your Statement of the Case and Supplemental Statement of the Case, if applicable. Apply the law to the facts of your case. Show the VLJ how the regional office failed to comply with the law and then argue how you meet the criteria for the benefits you are seeking. Finally, make your conclusion.

Have you conducted any research so far? What sources of information have you used? I’m happy to provide additional research tips regarding sources of law and how to find them, but I don’t want to tell you stuff you may already know. Just let me know what you are looking for.

Also, if you feel comfortable sharing, please tell us what your service-connected disabilities are and what you are appealing (such as a higher rating, IU, earlier effective date, etc.). This information will help us to help you better."

Also, several elders (john999, Carlie and Berta to name a few) have responded to other posts with more info. Bottom line: the IRAC approach G mentioned is a common thread.

So, in response to G, here are my issues:

Bilateral Knees 22% (reduced from 44%)

Migraines: 50

Psoriasis: 30

Degenerative Disk Disease C5-C6: 30

Bipolar: 30

Asthma: 30

Tinnitus: 10

Hemi-Colectomy: 10

SMC-K

The issue on appeal is the bilateral knees. They reduced the rating stating the condition pre-existed service. My initial entrance exam states nothing of the kind, but all SMRs were lost after separation. I've requested the 22% be restored to 44% and that's all. I have a copy of the entrance exam, but no other documents.

G recommended an IMO, but my doc was nowhere near me at the time of entrance. I had a bad strep infection the summer after I entered active service and this is a known potential trigger. Both psoriasis and psoriatic arthritis started showing symptoms within two years of the infection, but only used OTC meds and wore knee braces under my work clothes. I didn't want to lose my job, so I tried not to make a big deal of it.

Either way, I think I need to stick to the issue that they did not use the presumption of soundness for my first period of active service (1984 - 1988) and that this is when I believe I became symptomatic.

I have started to outline Berta's references to the CFR and M21-1MR along with my best recolection of the course of events. I could use any/all help at this point.

Thanks!

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A current IMO that connected your knees to your service would be helpful. My BVA hearing was a video conference. My DAV rep was worthless and I did the heavy lifting. The biggest thing I remember is I kept telling myself to be honest and truthful. I think the judge sensed it and I received my first remand.

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"Either way, I think I need to stick to the issue that they did not use the presumption of soundness for my first period of active service (1984 - 1988) and that this is when I believe I became symptomatic."

Has the VA fully acknowledged that service period in any decision?

I dont understand the 44% to 22%...do you mean 40 to 20 %?

Can you post the VA rationale on the reduction?

A lot has been going on here...as soon as I can I will review all your posts justrluk.......

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. (The condition pre-existed my most recent period of service, but the decision did not include my initial period of service from 8/84 - 10/87. This is the period for which I provided the entrance documents.)

Sorry I asked what you had already answered....and that was

the reason I raised 3.156 as to 'newly discovered service records, in a past post.

Did you re-up right away , without a new entrance exam?

Or did you get a new re entrance exam that did not note the prior condition?

Or did it.......

Hope others chime in on this too............ you are smart enough to handle this hearing without a VSO.

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Just my two cents:

Have you obtained copy of your C file? Curious to know who determined and what evidence they used to determine that it was a preexisting condition given that your entry physical exam shows no notation of any pre-existing condition. 370 F3d 1089 Wagner v. J Principi is a very good case that covers presumption of preexisting conditions.

Do you have a statement(s)/records or can you obtain same from anyone that either treated you (pediatrician, doctor etc) prior to service entry OR how about next-of-kin parent, siblings etc that could perhaps write up a statement that you did not have this problem prior to entry into service?

I'm guessing here but if the VA has a statement/report/opinion from one of their physicians that state something along the lines that your condition must have been pre-existing because of the following medical opinion, etc I sure as heck would get an IMO that would back (bad strep infection the summer after I entered active service and this is a known potential trigger) your medical research. I'll assume that whoever gave the opinion of it being a pre-existing condition to VA did not know you prior to enlistment and I personally would counter this person's opinion with an IMO to counter this - even if it is from a doctor that did not know you prior to entry.

Thanks for sharing Sergeant G's remarks especially the information pertaining to IRAC. Hoping the best for you!

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"Either way, I think I need to stick to the issue that they did not use the presumption of soundness for my first period of active service (1984 - 1988) and that this is when I believe I became symptomatic."

Has the VA fully acknowledged that service period in any decision?

I dont understand the 44% to 22%...do you mean 40 to 20 %?

Can you post the VA rationale on the reduction?

A lot has been going on here...as soon as I can I will review all your posts justrluk.......

Ms. Berta,

Yes, (should have posted the pre-bilateral numbers) reduced 40% -> 20%. I'll have to check the decision at home. They did not recognize my first period of service, only that it existed prior to my most recent period of service.

Thanks!

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Just my two cents:

Have you obtained copy of your C file? Curious to know who determined and what evidence they used to determine that it was a preexisting condition given that your entry physical exam shows no notation of any pre-existing condition. 370 F3d 1089 Wagner v. J Principi is a very good case that covers presumption of preexisting conditions.

Do you have a statement(s)/records or can you obtain same from anyone that either treated you (pediatrician, doctor etc) prior to service entry OR how about next-of-kin parent, siblings etc that could perhaps write up a statement that you did not have this problem prior to entry into service?

I'm guessing here but if the VA has a statement/report/opinion from one of their physicians that state something along the lines that your condition must have been pre-existing because of the following medical opinion, etc I sure as heck would get an IMO that would back (bad strep infection the summer after I entered active service and this is a known potential trigger) your medical research. I'll assume that whoever gave the opinion of it being a pre-existing condition to VA did not know you prior to enlistment and I personally would counter this person's opinion with an IMO to counter this - even if it is from a doctor that did not know you prior to entry.

Thanks for sharing Sergeant G's remarks especially the information pertaining to IRAC. Hoping the best for you!

I can ask my doc to do it, but I don't think I can get in quick enough prior to the hearing. I'll call his office and check. I'll take the research I have compiled along with the "presumption of soundness" and "benefit of the doubt" due to missing records and see what happens. I have my c-file, but it's HUGE as are those of many others here. I'll try and track down the decision within the file and see if there's an opinion anywhere nearby.

Edited by justrluk (see edit history)
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forgot to add

VA has a heightened Duty to Assist when service records are missing......

Washington v. Nicholson, 19 Vet. App. 363 (2005) ...

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Ms. Berta,

I've been reading decisions through the VBA search site for most of the day. In most cases they appear to rule in favor of the veteran, but only with documentations of some sort. I don't know if I'll have time to get an IMO from my family doctor, nor do I think I'll be able to see a rheumatologist before then. I may try and see my private rheum, and I'll see how she feels about writing a letter. I'll provide the draft, of course! Absent any med records, I have entrance paperwork that does not show the condition, they also did not mention my first period of active service. Should I hang my hat on the administrative error here or focus on the medical side? I don't dispute their service-connection and agree I had the condition before my second period of active service. I just need to prove I did not have the condition prior to the first period, right?

Edit:

I also thought that:

If the presumption of soundness is not rebutted, the claim becomes one for ordinary service connection rather than for compensation based on aggravation. Wagner. (see Citation Nr: 1144983, Decision Date: 12/09/11, Archive Date: 12/14/11 - DOCKET NO. 07-10 584) -This is what I'm trying to prove.

I also found that:

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. - Do you think the initial entry documents do this?

Edited by justrluk (see edit history)
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If you dont have an IMO in time for the hearing so be it.......

I think you said in early 2012 that VA had added a new condition to your claim.

Are you being paid at a 90% rate? Or are you getting TDIU?

Are you CRDP or CRSC?

Reason I ask is that either one of those benefits would have required DFAS to have info on your prior service period that VA has not acknowledged. I think.....

“Two issues I'm not quite sure what happened:

1. Found out that a claim I had in for asthma secondary to Humira use for psoriatic arthritis went from being in Development to Administrative Review. I've sent in additional documents, and still have more records to collect, so I'm wondering what's going on??

2. The VARO ADDED a claim to the Asthma claim: an increase for psoriasis. Not that I mind this so much, but I've already had an increase just last year. In the initial claim for this, though, I mentioned that I was on weekly injections of Humira for both psoriasis and psoriatic arthritis. “


Are those issues resolved or part of the DRO hearing? Or just the bilateral knee SC %?

I still believe 38 CFR 3.156 C will help you at that hearing:

http://www.law.cornell.edu/cfr/text/38/3.156

Also this link explains a few more cases in addition to Washington V Nicholson as to the VA's heightened duty to assist when reads are lost or miss... as one could deem the info regarding the prior enlistment and service period you had.... as lost or missing since VA has yet to acknowledge it.

http://askus.unitedspinal.org/index.php?pg=kb.page&id=2004

There are more links to that reg on the net but this one popped up right away.

Personally , I would ask the DRO to receive the above printouts as evidence at the hearing and then whip out a TDIU form, filled in as our TDIU forum directs here at hadit, and give it to the DRO, as well to get it into the record. If you aren't TDIU already.

I certainly don't expect the hearing to resolve the knee issue right then and there.The DRO will review whatever takes place at the hearing. Personally I think a TDIU claim is often easier for the VA to resolve then multiple other issues.

Liddell Hart (famous military historian) defined that the purpose of strategy is “to diminish the possibility of resistance.”.He was speaking of course regarding battle plans.

I believe that when we have a strategy regarding the end result of our claims,. which should often involve using VA case law itself, we can definitely diminish the resistance of the VA to focus on any negatives regarding a claim and it forces them to consider all avenues to warrant an award.

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Ms. Berta,

Thank you for your review/expertise. I'll try and go through line by line:

If you dont have an IMO in time for the hearing so be it.......

I think you said in early 2012 that VA had added a new condition to your claim.

Are you being paid at a 90% rate? Or are you getting TDIU? (90% and still working)

Are you CRDP or CRSC? (Neither; I don't qualify for either)

Reason I ask is that either one of those benefits would have required DFAS to have info on your prior service period that VA has not acknowledged. I think.....

“Two issues I'm not quite sure what happened:

1. Found out that a claim I had in for asthma secondary to Humira use for psoriatic arthritis went from being in Development to Administrative Review. I've sent in additional documents, and still have more records to collect, so I'm wondering what's going on?? (Resolved - received 30% rating and I'm good with it.)

2. The VARO ADDED a claim to the Asthma claim: an increase for psoriasis. Not that I mind this so much, but I've already had an increase just last year. In the initial claim for this, though, I mentioned that I was on weekly injections of Humira for both psoriasis and psoriatic arthritis. “ (I still don't know what they did and can't seem to find out. I requested the claim be cancelled and they did this. I think they inferred a claim to increase psoriasis due to Humira use, but I really want this appeal finished before I make any other claims.)


Are those issues resolved or part of the DRO hearing? Or just the bilateral knee SC %? (Only the bilateral knee issue. I thought I requested a DRO review, but everything went to the BVA and now I'm set for the VTC.)

I still believe 38 CFR 3.156 C will help you at that hearing:

http://www.law.cornell.edu/cfr/text/38/3.156 (I'll download and digest; Thanks!)

Also this link explains a few more cases in addition to Washington V Nicholson as to the VA's heightened duty to assist when reads are lost or miss... as one could deem the info regarding the prior enlistment and service period you had.... as lost or missing since VA has yet to acknowledge it. (This is my real issue. I feel they should NOT consider the condition pre-existing and return the rating to 40% I don't disagree with the rating, but as Carlie mentioned when I first started fighting this, I requested they return the reduced rating to 40%)

http://askus.unitedspinal.org/index.php?pg=kb.page&id=2004

There are more links to that reg on the net but this one popped up right away.

Personally , I would ask the DRO to receive the above printouts as evidence at the hearing and then whip out a TDIU form, filled in as our TDIU forum directs here at hadit, and give it to the DRO, as well to get it into the record. If you aren't TDIU already.

I certainly don't expect the hearing to resolve the knee issue right then and there.The DRO will review whatever takes place at the hearing. Personally I think a TDIU claim is often easier for the VA to resolve then multiple other issues.

Liddell Hart (famous military historian) defined that the purpose of strategy is “to diminish the possibility of resistance.”.He was speaking of course regarding battle plans. (I work as a strat planner; I get this completely!)

I believe that when we have a strategy regarding the end result of our claims,. which should often involve using VA case law itself, we can definitely diminish the resistance of the VA to focus on any negatives regarding a claim and it forces them to consider all avenues to warrant an award. (This is why I was wondering if I should focus only on the omission of the consideration of the first period of service. The condition and rating are not in question in my mind, only the "pre-existed military service" part. I feel I could get the rating restored, but am trying to make sure I've closed as many loopholes as possible.)

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Ok,TDIU is not applicable here.....

I am LOST...................................................

"I thought I requested a DRO review, but everything went to the BVA and now I'm set for the VTC.)"

I based my reply on a DRO review.....still the evidence regarding 3.156 etc would be the same anyhow to raise with the BVA.

Sorry....I have been shoveling too much snow I think and really got confused here.....

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Ok,TDIU is not applicable here.....

I am LOST...................................................

"I thought I requested a DRO review, but everything went to the BVA and now I'm set for the VTC.)"

I based my reply on a DRO review.....still the evidence regarding 3.156 etc would be the same anyhow to raise with the BVA.

Sorry....I have been shoveling too much snow I think and really got confused here.....

God bless you! My mom still lives in norther PA and sent me a picture. I really don't miss shoveling.You have been so much help, I can't express it. I'll continue to read and will keep you posted if I find anything specific that will help as well.

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Bilateral Knees 22% (reduced from 44%)

The issue on appeal is the bilateral knees.

They reduced the rating stating the condition pre-existed service.

just,

Please post all of and exactly, what is stated regarding the reduction

from 40 % down to 20 %.

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just,

Please post all of and exactly, what is stated regarding the reduction

from 40 % down to 20 %.

Carlie,

Found and redacted the original decision. I really appreciate you looking at this! I also sent you a PM w/more details.

Edited by justrluk (see edit history)
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Carlie,

Found and redacted the original decision. I really appreciate you looking at this! I also sent you a PM w/more details.

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justrluk,

Do you have the proposal to reduce benefits? If so, would you please post a redacted copy. Thanks.

G

The reduction was in my original decision, Reasons and Basis section. I'll see if the decision will post and appreciate all the review. As many others have been here before (short notice for a VA event), the experience and opinion are very much appreciated.

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Update: eBene-fits just went from "No Info" to "With VLJ".

just,

About all I can suggest it to take your most pertinent evidence with you to the

video hearing and clearly bring up your points of contention into the record.

Before the hearing is over ask the judge exactly why they evaluation is at 20 percent

versus 40 percent - and discuss the VA stating pre-existing - the records that they have

not been able to locate that were in their custody - any MEB/PEB findings that are

pertinent, etc . . .

Ask the judge EXACTLY what evidence could overcome the denial and

(if they do not seem to be in agreement that your argument and the evidence currently of record,

is sufficient for a revision in the appealed decision)

then ask the judge to leave the claim pending any further action

(for a specific amount of time)

prior to you submitting whatever the judge says you need

to over come the evaluation of less than 40 percent.

WAIVER - WAIVER - WAIVER - SIGNED !

JMHO

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