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Ryguy

Appeal/substantive Form 9

Question

Hi,

I currently have an service connection rating for my lumbar area. I placed a claim in 2007 for neck and upper back service connection. The claim was denied as there was nothing in my service records about neck and upper back issues. I appealed the VA's decision. After the appeal I had to have another exam, I had the same original examining doctor, who had a formed opinion prior to me being seen, and my Independent medical opinion wasn't even considered . ( All of these things were mentioned in my form 9).

After receiving the statement of case, my va rep recommended the form 9. The form 9 was filed January 3, 2012 . My claim hasn't moved since and ebenefits says its still @ the VARO. When I call the 1800 number I was told its a 1.5 year wait on form 9 appeals.

My question is this, has anyone ever seen the BVA give weight to benefit of doubt or not considering my medical opinion. ? My doctor even put in his notes that at my young age it's evident that my upper back issues are from the accident I was involved in during service . I chose a bva video conference when my docket number comes up.

All opinions and suggestions are appreciated ..

Edited by Ryguy

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Has your SC lumbar injury caused Kyphosis or Scoliosis? If the injury causes a "mal-union or mis-alignment than the adjacent joint is entitled to at least the minimum rating.

Title 38: Pensions, Bonuses, and Veterans' Relief
PART 4—SCHEDULE FOR RATING DISABILITIES
Subpart B—Disability Ratings

§ 4.59 Painful motion.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.

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I should have been more clearer about that 38CFR.

If your lumbar spine alignment is altered, Kyphosis (front to back curve) or Scoliotic (side to side curve) it will throw the alignment of your whole spine off (unless there is a compensating abnormal curvature in an adjacent section). I successfully used this argument for SC of my cervical spine secondary to my throracic spine which is kyphotic and scoliotic.

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Hi,

I currently have an service connection rating for my lumbar area. I placed a claim in 2007 for neck and upper back service connection. The claim was denied as there was nothing in my service records about neck and upper back issues. I appealed the VA's decision. After the appeal I had to have another exam, I had the same original examining doctor, who had a formed opinion prior to me being seen, and my Independent medical opinion wasn't even considered . ( All of these things were mentioned in my form 9).

After receiving the statement of case, my va rep recommended the form 9. The form 9 was filed January 3, 2012 . My claim hasn't moved since and ebenefits says its still @ the VARO. When I call the 1800 number I was told its a 1.5 year wait on form 9 appeals.

My question is this, has anyone ever seen the BVA give weight to benefit of doubt or not considering my medical opinion. ? My doctor even put in his notes that at my young age it's evident that my upper back issues are from the accident I was involved in during service . I chose a bva video conference when my docket number comes up.

All opinions and suggestions are appreciated ..

Is your IMO listed in the EVIDENCE SECTION of the rating decision (RD) that denied the issues ?

Is your IMO mentioned in the narrative of the REASONS AND BASES SECTION ?

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VA has increasingly insisted (although it had been declared immaterial) their own doctor's IMO or the C&P is more probative because the VA doctor had the whole c-File to review. If your IMO is merely a compendium of "The Vet reports that...", VA will say that it is subjective and not nearly as informed as theirs. This is happening more and more to get around the CAVC decision saying that even if the private physician has not read the STRS, then his nexus is still probative because a Vet is capable of reporting symptoms he can ascertain with his five senses.

VA is affirming more and more VARO decisions this way. Always get and provide your IMO doctor with you STRs. It at least puts your nexus on a par with theirs. After than it's all about who provided the most nuanced nexus with the best supporting medical research backing up their reasoning. In the same vein, emphasize your IMO is written by a doctor schooled in the science of your disease/ injury. VA uses proctologists to opine on cancer.You, on the other hand , will require an oncologist rather than a podiatrist. VA can use a lowly CNA or ARNP and say he/she is knowledgeable. If you use less than a MD with 4 abbreviations after his name, you may lose. If you show up with an ARNP or PA's nexus, don't be surprised if the VA wins with the proctologist.

Lastly, if VA sends out for an IMO with an "independent VHA expert", you have sixty (60) days to contest his/her credentials and discover they did the bait and switch with the butt doctor instead of an oncologist. Keep that in mind when you start shopping for an IMO. Regardless of what the Courts have decided on the treating physician rule, having your own doctor who has known you and your disease process/ history of injury many years does carry a lot of probative weight

Remember always-bare conclusory facts, unsupported by objective evidence are accorded no probative weight and are not considered viable evidence regardless of who is trying to moonwalk it by the judge. A VLJ may deny but it won't pass muster up at the big house.

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Hello, thanks all for the replies and insight. Carlie, my IMO isn't listed in the evidence, reasonsing/bases at all. When i went back to the VFW representative to assist me in writing the Substantive Form 9, she listed all of those vital points in the Form 9.

71M10, thanks for the tips, when I get home today, i'll make sure to look at the diagnosis and see what it says about the spine. I know I had a recent MRI, and things have definitely gotten worst, disc buldging, deteiroating, but I guess because there were no notes in my records about my upper back and cervical issues, he decided to deny it. But my thing is this, its the same original doctor who did my c@p exam, that did the appeal exam. I argued that also in my Form 9, that he had a formed opinion about me prior to coming into the exam. The first thing he said was "I examined you before".

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