Have A Few Ratings Over The Years, All Basically The Same?

[MartyL16]

All the way back to 1987. Usually with the same denials. Never did they ever go back to the active duty records to "confirm" what I was telling them.

Rating usually stated "...is continued at %". or "remains denied" and you know what. I was too depressed and sick, and ignorant of how to proceed, how to fight for me, until lately!

My questions: Since they referenced no "codes", never explained why, and even when I stated extreme pain, on movement, did the wincing, refused to go past my "pain point", the ratings always said "mild pain". Since 2009 they stated they had no access to my records on the computer, so the only info that they had was my verbal answers to their questions.

Have to mention that I have NEVER seen "them" use a worksheet from the VA. Always saw them scribble a word or two on a regular tablet. Also never had an exam that went more than about 15 minutes.

I am thinking maybe since the info does not actually reflect what is in my "actual" records(that are only) referenced by "clinic name" but no specifics confirming my claims, shouldn't I have other appeal or legal rights?

Maybe their failure, over at least 4 separate ratings, to give me my rights of "due process", or whatever.

Since they always failed to describe the details, or use codes, maybe I can submit as "reopened claims" based on facts that they "missed"? Afterall, they now at least "mention" records that they have and should have had since 1967 and beyond.

For the record, I have an SC 0 from active duty, DM II from 2004 with a marginal SC % presumptive to AO from 'Nam and Thailand.

Thanks

[free_spirit_etc]

Have had PVCs at times similar to what I have described but they went away "by themselves" just as fast as they "came on". As of June 2013, "they are back", bothersome, terrible at times and time for the 24 hour "halter" to measure them and prescribe meds.

This could be the problem – depending on how long you did not need treatment for them, they are probably saying they aren’t convinced that they are caused by the same condition that was causing them in the military. So you may need a nexus statement to convince them.

What does your doctor say is causing them?

[free_spirit_etc]

They also requested proof of the mitral value prolapse which 'existed from” your military service. This did not exist from military service as I told them in 2010 as I was not claiming the mitral valve prolapse to be SC. Just wanted it in the records as DM II is "notorious" for many heart problems.

I was thinking that mitral valve prolapse can cause PVCs.

[free_spirit_etc]

My appeal document is about 20 pages long, and includes specific dates, places of references, doctors names, treatment, findings, and Is specifically written to point out their mistakes, blunders, incompetance, etc, in very non-adversarial terms and verbiage. This appeal also includes the "new" disabilities, and the what, where, and why, I have requested them to address. I also am including all the signed release forms for my doctors.

I would suggest you also create a shorter argument than 20 pages. You can certainly submit it all, but also create a document that is only a few pages long that concisely hits the most important points. Consider it your cover letter.

Sorry for breaking this all apart. My mind is working better in bursts tonight. But at least I got a few things addressed.

Disclaimer -- My intent is to be helpful rather than critical. Just hoping to help in some way as you polish your claim.

[free_spirit_etc]

I really want to get a SOC from the VA, as they never sent one,

I was thinking you got one SOC, but have not received one from the DRO review yet. They might still be working on that. That would be the SSOC (Supplemental Statement of Case). For some reason, I was thinking you said that they sent you a sheet to fill out with the names of your medical providers. So the reviewer might be looking for additional medical records before he makes a decision. This would be a good thing, I would think. It would mean that they actually wanted to look into some more information, rather than just copy and paste the previous denial.

[free_spirit_etc]

There is a case here that discusses the restriction of activities required for higher ratings for diabetes.

http://www.va.gov/vetapp13/Files3/1327679.txt

[MartyL16]

My appeal document is about 20 pages long, and includes specific dates, places of references, doctors names, treatment, findings, and Is specifically written to point out their mistakes, blunders, incompetance, etc, in very non-adversarial terms and verbiage. This appeal also includes the "new" disabilities, and the what, where, and why, I have requested them to address. I also am including all the signed release forms for my doctors.

I would suggest you also create a shorter argument than 20 pages. You can certainly submit it all, but also create a document that is only a few pages long that concisely hits the most important points. Consider it your cover letter.

I guess I am not clarifying my terms (I do that) In my mind all that is in that 20 page doc is APPEAL. Actually, the appeal is just the items listed in my NOD, and my reasons specifically identifying their errors, by ommission or otherwise, and the exact locations in my medical records that support my disability. I also state what I believe the % should be and how I got to that number. Lastly, I specifically have "cut and paste" court citations in part, that prove my case and "shove their rules" and findings from those case, in their collective faces.

Like these:

Title 38: Pensions, Bonuses, and Veterans' Relief; CHAPTER I: DEPARTMENT OF VETERANS AFFAIRS; PART 4: SCHEDULE FOR RATING DISABILITIES; Subpart A: General Policy in Rating

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

VA's duty to assist attaches to the investigation of all possible in-service causes of a disability, including those that are unknown to the veteran. Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000).

See, e.g., Caffrey, 6 Vet. App. at 381 ("The medical examination must consider the records of prior medical examinations and treatment in order to assure a fully informed examination.");

Waddell, 5 Vet. App. at 456 ("The duty to assist `includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment.

Citation Nr: 1223036 Decision Date: 07/02/12 Archive Date: 07/13/12

DOCKET NO. 08-19 386)On appeal from the Department of Veterans Affairs Regional Office Roanoke, Virginia

Disabilities are viewed historically and examination reports are interpreted in light of the history, reconciling the report into a consistent picture to accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2.

Rivera v. Shinseki, 654 F.3d 1377 (2011) (Rivera affirms the well-established rule that the VA must read all claimant submissions sympathetically).

These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. See _CFR_4.2 38 C.F.R. §§ 4.2 , 3.344(a). These concerns are especially strong in a ratings reduction case such as this. See Peyton, slip op. at 7-9; _CFR_3.344 38 C.F.R. § 3.344(a)

Citation NR: 9634762 Decision Date: 12/09/96 Archive Date: 12/19/96 DOCKET NO. 94-24 656 ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida

…. Subjective complaints and objective findings should be legibly recorded in detail. Pulmonary function tests and any other indicated tests and studies should also be conducted. The claims folder must be made available for review by the medical examiner prior to the examination to facilitate study of this case.

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS; NO. 07-3399 DONALD R.MORGAN, APPELLANT, v. E RIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE.

[T]his Court has made it clear that a claim is not limited to the tentative diagnosis advanced by the claimant, but also encompasses other disabilities indicated by the claimed symptoms and the evidence associated with the claim. See Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009) ("[T]he appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition, whatever that is, causes him.");

See also Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (citing Solomon v. Brown, 6 Vet. App. 396, 402 (1994)) (Board required to consider all issues raised either by the claimant or by the evidence of record).

Citation Nr: 1032650; Decision Date: 08/30/10; Archive Date: 09/08/10; DOCKET NO. 01-05 591)

…The Board must determine whether there is any other basis upon which an increased evaluation may be assignable. In this regard, except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, unless the conditions constitute the same disability or the same manifestation. 38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994).

See 38 U.S.C. § 7104(d); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (noting that the Board is not required to discuss all evidence of record but must discuss relevant evidence)

These are a few of the hundred or so I have included and all specifically relate to each rating item. These listed above are part of my introduction just before my rating items:

My purpose here is to discourage the "reviewers" from trying to say "well we can't rate you like that because...., or the laws state this or that". You "guys" repeatedly mention "VA speak", or "double-talk", or just plain old "fecal matter". I am trying to prempt that response from them. Do I think I know what I doing here, well actually, I am just guessing.

This 20 pager also has the "new" claims because they are required to do a de novo review of these items while the appeal is still active, or at least, that is what I have read and undertstand. If I am wrong I hope "someone" will tell me.

You can't "hurt my feeings" because I have medication from my doctors for that.

I think I will take your advice and put the "points" on a cover page and reference those "points" by letter or number in the other pages. What do think of that???????

Or this one that "makes my day" regarding their ILLEGAL reduction of my rating concerning LUMBAR

When the issue raised is a rating reduction and the Court determines that the reduction was made without observance of law -- CFR_4.40 38 C.F.R. §§ 4.40 , 4.45, 4.2, 4.10, 3.344(a) -- this Court, acting under 38 U.S.C. § 4061 (a)(3)(D), has ordered reinstatement of the prior rating. See Lehman v.{1 Vet. App. 596} Derwinski, U.S. Vet. App. No. 90-162, slip op. at 7 (July 1, 1991); Swan v. Derwinski, U.S. Vet. App. No. 89-75 (order, Apr. 12, 1991). This approach finds support by analogy in the special procedural prerequisites -- 60 days' advance notice with detailed material facts and reasons, deferred effective date, and availability of pre-reduction hearing -- which VA regulations establish must be met before a rating reduction may be effectuated. See _CFR_3.105 38 C.F.R. § 3.105(e) , (g), (h) (1991). It is implicit in these regulations that a service-connected rating reduction is invalid if these procedures are not followed. Cf. In Re Fee Agreement of Smith, U.S. Vet. App. No. 91-619, slip op. at 7 (Oct. 7, 1991) (per curiam) (ultra vires action of BVA Chairman "must be treated as though it had never been taken")

Sorry for breaking this all apart. My mind is working better in bursts tonight. But at least I got a few things addressed.

Disclaimer -- My intent is to be helpful rather than critical. Just hoping to help in some way as you polish your claim.

Helpful is good and critical is ALSO helpful as far as I am concerned.

Like I said, I am just guessing at a lot of this and all of you are helping.

I appreciate it.

Now if I could figure out exactly how and where to get the C&P notes, doctor's notes and statements, and all previous ratings, I believe it would help, as you have said.

Since my original rating for sarcoidosis was 0% , I really don't know how to get "them" to reopen that item. Yes, I have more than 5 cases where claimants got 30% or more at the initial rating and they were ONLY Stage 1 sarcoidosis. I was Stage 4 while in the service and AGAIN IN '92-'95.

As for presumptions: I may be confusing it all here. I have found court cases, where doctors have stated for various claimants, "sarcoidosis more likely than not, came from AO expose in 'Nam", and other cases where DM II more likely than not came from sarcoidosis. So why is this important to me?

I am already SC for sarcoidosis because of active duty,

I am presumptive AO for DM II, so it is SC right?

I am fighting to establish SC for a "chronic" PVC problem that in this 2011 rating,

the VA rating states what I wrote in another post here on HADIT, from my private medical records that ONLY refer to 1990-2003 (CIGNA), AND 2004-20087 (ASSOCIATED INTERNISTS), which the VA refers to shows PVC evidence in BOTH record groups,

They have been denying SC for this since 1987 but now confirm PVCs in 1990-2008, and from my SMR, just not recently.

What I am saying is the SC proof, for previous ratings is proven in their own words.

How does fit together .

'NAM IN 68-69, Thailand 69-70(both confirmed AO locations for me), PVC problems for more than 10years, starting in 1980, prescribed NORPACE for many years, still showing through 1987 retirement, then CIGNA 1990-2003, and also from 2004-2008 at ASSOC. INTERNISTS, and "on and off" from 2008-2013 from "new claims" at EAST VALLEY INTERNISTS. Those records will be seen as soon as they request them from my doctor release.

So my "mind" says that maybe, just maybe there is a possible presumptive AO, "more likely than not" for the "CHRONIC PVCs" what came first, "the chicken or the egg" and with ALL of that association, presumed or otherwise direct, I have "ammunition" for the sarcoidosis and my "acquired" exo-Cushing Syndrome(not disease) residual effects as secondary to sarcoidosis treatment by high dosage prednisone (corticol steroids).

BTW, actually I have also found cases with the "more likely than not" presumption of high dosage prednisone causing DM II.

I could care less that they failed to find evidence of PVCs in two separate 5 second EKGs that they are using for denial. Why??? because that means that they never reviewed the cardiologist report that was submitted way before this rating and "can't see the trees"

How do I know this?

Because they disapproved me for "ischemic heart disease" in this rating, the cardio Dr. diagnosis was "mitral valve prolapse", that I again told them of in the phone conversation with the San Diego "Nehmer" team when they were trying to prove that I was "not boots on the ground in VN".

That mitral valve diagnosis was in 2008-2009. This Nehmer fiasco was in 2010. Their crime of ommission was in June 2011.

If you and/or Berta would like to actually see my "appeal" when I believe I am close to "final", I would appreciate it. I won't post it here on the forum for personal reasons. That would still be a few weeks away. Send me a message pls.

I am also in a quandry about the '87 sarcoid rating for reopen on "new material" claiming the lack of any rating to actually refer to '85-'87 in service, and again in '92-95, after service. BTW, the SAME CIGNA records hold the recurrence in '92-95 and actually have PFT EXAMS, one per year, the treatment and the Stage 4 references, or doing a CUE as they never followed my request for reconsideration/increase or anything else. Advice would be appreciated.

Thank you

Marty

Edited November 4, 2013 by MartyL16