Appeal On Dro Help

[Scottyp65]

I am getting my VA Fm 9 together now to appeal the decisions they had on 3 items. The question I have is do I have a leg to stand on if I show them where in a previous C&P evaluation they had me at 10% for a disability that they now say doesn't exist? It does I have the documents to say it does. they had then too.

[Former Member]

Scotty-did you get a VCAA letter with a highlighted or underlined section that stated exactly what you needed for the claims?

Did you also get a VCAA election tion with a choice of two boxes and you checked one box and signed and returned this form?

If you ddnt -you will be in the 2 year plus Remand status when the BVA sees that your rights were violated under the VCAA.

If you DID get one, were you able to provide them what they needed for an award?

It is hard to know where this is all at- regarding your appeal-

However I suggest arguing -with evidence- everything single thing you can on the I-9 that was in the SOC that denied your claim.The I-9 form does not have much room but you can attach more pages.

I made a post here some time back as to how to "preserve on appeal all errors the VA might have made"

I will try to find that post.

Also, on the first page of the I-9 form at the bottom- State immediately any evidence they failed to consider and why their decision was wrong.

This was my I-9. I was remanded already.I typed all this in Word and then pasted it into the I-9- on page one I got the whole shibang in and expanded on the evidence in additional pages.

"Appeal: ISSUE # 1 of 2:

Direct Service Connected Death of Rod Simmons due to Diabetes Mellitus from Agent Orange exposure in Vietnam as causing/contributing to his untimely death.

The Buffalo VARO , by consistently ignoring my irrefutable, undisputable, and probative medical evidence-to include an Independent Medical Opinion from Dr. Craig Bash whose area of Special Knowledge gives him a professional rationale for this opinion, and a statement from Dr. Hamid Rabiee, significant as to this doctor’s entries in the veteran’s VA medical records and conversation with the veteran and me, as former treating VA physician, along with evidence I submitted from the veteran’s medical records, FTCA documents, Section 1151 award, prior SOCs, and autopsy, which I correlated with medical information on diabetes known within the standard medical community and also within VA itself via VA Training Letter and C & P regarding diabetes, has continued to deny a claim that rests well within the Doctrine of Reasonable Doubt as the evidence I have submitted fully outweighs the rationale of the VA examiner, as found within the December SSOC, that I received on Dec 23rd,2005."

I got that into the first page and expanded on it all. I say hit them hard on that first page of the appeal.

It pays to type it in Word until you have something that will fit on page one and then you can scan it all as the actual appeal.

It is imperative to rebutt everything wrong in the SOC.And certainly bring up the 10% disability and whatever you have that shows you still have it.

Your I-9 should be looked at carefully by the VARO before they certify it.It used to be that a claim could turn on a well written appeal. Those days seem over,they certify them now without even reading them.

The preservation of all errors part- is under another post I made and somehow I got that on the first page too.

The second issue I had was a moot issue and they still put it on appeal. I had withdraw a claim and filed a CUE instead. Shows you they can't read.

Edited October 1, 2006 by Berta (see edit history)

[Former Member]

Here is what I meant- I got this statement into the hearing box, it is suggested by NVLSP:

"I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR."

This is what might have triggered my fast remand as the errors they had made were significant when they sent it to the BVA.And I pointed out every single one of them to BVA.Now they are stuck with my claim again and this time they might actually read it.-and the evidence.

[Vike17]

Scotty,

Have you already appealed the decisions through the DRO process? If so, did you get a Statement of the Case (SOC), and what did it say as far as the reasons and basis for the continued denial?

Or did you just receive a normal rating decision from the VA with the denial and are appealing the decisions directly to the BVA. If this is the case, what did the rating decision and the subsequent Statement of the Case state as far as the reasons and basis for the denial? When did you file your Notice of Disagreement (NOD)? What was the date on the latest SOC?

"The question I have is do I have a leg to stand on if I show them where in a previous C&P evaluation they had me at 10% for a disability that they now say doesn't exist"

The C&P exam and the doctor that wrote it can state anything he wants, but the actual decision to service-connect a condition and the assigning a disability percentage is at the discretion of the RVSR (the rating specialist).

Vike 17

[Scottyp65]

Berta & Vike,

Long Post sorry

What has the SOC stated was there was no evidence in my medical recorde to support three of my claims.

1. Hiatial henia- I had an endoscopic report where it is listed in the 3 findings by the doc and this was in my recorde. And I was still on active duty. On the C & P form where they list the current ratings for disabilities that have teh hernia listed at 10% along with the mecial code. Somehow after the exame it was droped. They just didn't read the finding I suppose.

2. Raynauds Syndrome- In my C & P exam it had it listed with a YES to the side, along with all the symptoms. but I don't have a diagnosis preceeding the exam. However, it does state on the C & P form the examiner had access to all records and had examinded them. So then by saying I had the condition I don't uderstand why they are subsequently denied. I don't have to fall on my sword on this if I can just refile at a later date and have if classified as secondary to the Thoracic Outlet Syndrome.

3. Bi-Lateral Plantar Fascciitis- I was treated numerous times while in service for my left foot, and had a heck of flare up right after I seperated with my right foot. The VA physcian ordered me up some inserts and so can I say that it is SC as it occoured within the 1st year from seperation? I only want them to SC even at 0% as I have it and that is that. I have chronic ankle problems with both left and right side and the VA acknowledges it.

Right now the draft looks like this;

BLOCK 9

Item # 4 Service Connection for Hiatal Hernia.

Item # 5 Service Connection for Right Arm Raynauds

Item # 6 Service Connection for Bilateral Plantar Fasciitis.

Block 10

Item # 4: Service Connection for Hiatal Hernia

I believe the VA decided my case incorrectly in for a Hiatal Hernia as it is documented in my Medical Records which were available for review. I believe this condition should be service connected at 10%.

The SOC states on page 26 this was denied as the VA examiner indicated that there is no documentation to show it was clinically diagnosed.

On July 26, 2005 the VA requested for documentation in support of my claim. I sent in 61 pages of medical records inclusive of records from Midwest Endoscopy Services. An Endoscopic procedure was performed by Dr William C. Livingston D.O. on November 8, 2004. The findings of this procedure noted in item three (3) of the Endoscopic Impressions a Hiatal Hernia. My Active Duty date terminated 30 November 2004.

Item # 4 continued..

C & P worksheet dated August 3, 2005

Under current rated disabilities; Hiatal Hernia 10% (7346)

Item # 5: Service Connection for Right Arm Raynauds

I believe the VA decided my case incorrectly in for Right Arm Raynauds as it is documented in my Medical Records which were available for review. I believe this condition should be service connected at 20% as I experience characteristic attacks four to six times a week.

C & P August 29, 2005 9 (Arteries, Veins, Misc)

In the Review of medical Records section it states Medical Records and claim file were Available and Reviewed.

Problem listed Raynauds of the right upper extremity YES

Item # 6: Service Connection for Bilateral Plantar Fasciitis

The SOC states on page 26 this was denied as the VA examiner indicated there is no documentation to show it was clinically diagnosed. I believe the VA decided my case incorrectly in for Bilateral Plantar Fasciitis as it is documented in my Medical Records which were available for review.

I believe this condition should be service connected at 10% as there is pain on manipulation and it is present in both feet. The use of arch supports does not relieve the pain experienced daily.

On page 1 of the SOC a statement is made under Evidence of a request for medical records was sent to Ehrling Berquist with a response of no medical records being available as received August 3, 2005.

These records were in possession of the VA as stated in the same area in the first entry. These records were for the period of Nov 20, 1984 through November 30, 2004.

Entry in my Military Medical Record (MMR) April 01, 1993;

States Left foot pain with a finding of Plantar Fasciitis

Entry in my MMR 21 October 1997;

States I went into the hospital at Scott AFB for left foot pain with it being tender to palpitation in Arch of mid foot

Entry in MMR 31 October 1997;

A Physical Profile was issued 31 Oct 1997 Left Foot soft tissue strain no running for 2 months.

Entry in my MMR January 5, 1998;

States Left foot pain with a finding of soft tissue injury

VA Progress Notes November 23 2005 in part reads "…he has plantar Fasciitis..,”

A/P lists in item # 3 bilat foot pain.

Inserts for shoes for relief of Plantar Fasciitis were prescribed by PA Blankman, VA medical officer, in May of 2005.

[Former Member]

You did an excellent job in telling them why they were wrong-

I would-if you have time- ask them to reconsider their decision-but hold onto that I-9 form-

What is the date of this SOC?

This is a good case where a veteran might get a proper award much faster than the I-9 route-

However----you MUST watch out for the Appeal deadline---as well---

I hope Vike responds too-

All you need to do is type REQUEST FOR RECONSIDERATION

on a letter with your c file number etc.

Ask them to reconsider their denial (I would enclose a copy of it) based on the following. Then tell them exactly what you told us-

if they listed any of your evidence in the SOC under evidence-it appears that they did not use it at all.

I would list it for them again and refer them to (and attach)

38 CFR 4.6

"§ 4.6 Evaluation of evidence.

top

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."

Also I would remind them of the Doctrine of Benefit of Doubt and tell them to carefully apply it to your claims after they have properly considered your evidence under 38 CFR 4.6.

38 CFR 3.102

"§ 3.102 Reasonable doubt.

top

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships."

This is not advise I would give to many claimants. I feel you have set out your position very very well.

You could use this as a response to the SOC- I did that many times in my old claims and my responses were considered but these days-

the VA tries to ignore responses to the SOCs and just wants that I-9 to get the files off their desks for 2 years or more at the BVA-

If you have time to do this -before the I-9 is due- and especially of you are still within the 60 days response time to the SOC-I would suggest you consider sending them this request for reconsideration.

Any other comments?

Scotty has laid out an excellent rebuttal with references to probative medical evidence that the VA has.

He stated it briefly yet no one can misunderstand his point and that they failed to consider his medical evidence properly.

What he stated makes complete sense and is an excellent example of how one must rebutt any VA crapola.

[Scottyp65]

Berta,

I waited a long time. I had my rep send me a letter saying I had to have this in my the 9th or they would drop my appeal. My bad.

I would rather just ask the VARO to look it over again and reconcider for sure. Overall this VARO has been EXCELLENT, with noted exceptions.

[Scottyp65]

Also to note is I am doing this to have the conditions SC and not an icrease as I am at 100% P&T. The next reason for pursuing this is I would like to make a claim for the clothing allowance and I figured if I have the Plantar Fasciitis SC'd then the case is stronger. At issue is my shoes do not support my ankles when the VA provided insert are in. I ride too hi in the shoe and therefore need orthotic like shoes where the walls of the shoe are higer/deeper. Otherwise it feels like I am wearing a funky set of flip flops allmost. And the doggone shoes are expensive to say the leat.

[Scottyp65]

sorry for the multi posts but..

I did make the 60 day deadline for the SOC, but am up against if for the later of the two deadlines. In either case I will let it fly. Do I supply them with copies of the medical records again, with the rebuttal? I don't want to leave it up to them to go through all the files AGAIN and miss them AGAIN:)

[Former Member]

Scotty I would file both the formal I-9 and also a Reconsideratin request AND- you wont like this part -

I would send them the medical evidence again- the specific records you mentioned.

I know the fristration of sending them the same stuff over and over again but sometimes it is only way to call their attention to it.

Some might wonder why you want these claims resolved-

because you get 100% P & T-

One never knows when a condition could cause them to become so disabled they would be in SMC criteria.

And one never knows what condition they have that could cause their death.

It is important-the way I see it , for a vet to seek a SC rating- even if it is Zero.

You have Raynalds disease-this is what I mean- it is in your arm now- but what could the future bring?

One could develp serious complications due to this disease and this could further add additional disability to you. Do you have a strong nexus for them to service connect this disease?

http://www.mayoclinic.com/health/raynauds-...0433/DSECTION=6

[john999]

Scotty

There is a procedure I am trying to get for Pf that is called ESWT. Have you heard of it. It is a non-invasive treatment like the way they use high energy to bust up gallstones. Ask about it from your podidatrist. I hear that it can really help and can't hurt.

[Scottyp65]

Berta,

I already figured I would send in the data again, makes it easier on them and that is what I want to do. No smoke and mirrors here. As far a case for the Raynauds I can only assume I have a case even if it secondary to Thoracic Outlet Syndrome(TOS). Bottom line is I have multiple letters from co workers and family on the condition while still on active duty. SO will have to see.

What is funny is I told the VA I had surgery for the TOS and they removed 2 muscles from the right side of my neck (scalenes) and yet there is no mention of it, but they did award an increase to cervical muscle strain from 10 -20%? i should say they are strained...... like strained out of my body! Do think there is a claim for the condition? Seriously, they went in and cut me like a fish and scraped the muscles from my 4-6 cervical vertabrae and from my first rib. So not sure what the impact is as they aren't there! kinda funny to me in a way. Worried if I say anything they will reduce me and put me less than 100% P&T.

john9999 I have not heard of it and will look into it. I have to be honest when I say I used to have zero compassion for those with PF when I was younger and running around all the time. Now I know the rest of the story. Sserves me right i suppose in some peoples way of thinking:)

[Vike17]

Scotty,

Was the Hernia already service-connected??? If it is, then when the RO sends the C&P request to the VAMC, they will list the disability that has the request for increased evaluation, the DC of that disability, and the current percent. If it isn't service-connected and the VA stated something like you said on the C&P request form, it still isn't a legal binding decision from VA, it has to be officially rated in a rating decision. I know that sounds stupid, but that's the reality of it. On the rating decision and SOC, if the Hernia was denied because there wasn't a clinical diagnoses, then the C&P exam should have taken care of that. If the C&P examiner didn't diagnose the Hernia upon examination, then that exam was insufficient for rating purposes and should have been returned to the examiner to be taken care of. \

Was the Raynauds Syndrome diagnosed while you were in the service? If it wasn't, then the C&P examiner should have diagnosed it too just like the hernia; especially if he had all of your records in front of him. If he didn't, then that C&P exam is also insufficient for rating purposes. If the Raynauds Syndrome is secondary to the Thoracic Outlet Syndrome, then you need to claim that as such. If you didn't claim it as a secondary condition, then the VA was looking to see if it was directly service connectable. If the evidence wasn't there to warrant direct service-connection, then the VA must deny the claim. Many claimant make this mistake. They claim something that should be a secondary condition, but do not specify this. The VA has no was of knowing whether something is secondary or not. They cannot make medical deterinations and determining whether a something is secondary to some other condition is just that.

As far as the Bi-lateral Fasicitis you stated;

"I was treated numerous times while in service for my left foot, and had a heck of flare up right after I seperated with my right foot. The VA physcian ordered me up some inserts and so can I say that it is SC as it occoured within the 1st year from seperation? I only want them to SC even at 0% as I have it and that is that. I have chronic ankle problems with both left and right side and the VA acknowledges it"

If there is noted treatment numerous times and you had continuity of treatment after discharge, then that should warrant service-connection. However, if it wasn't actually diagnosed, either during service or after discharge, then the VA cannot award service-connection for it. Having said that, that also should have been resovled by the C&P examiner if he had all of your records in front of him for review. One thing I did notice is in your SMR's it states "left foot pain," on a couple of occasions. This isn't a diagnosis. I'm not a doctor, so I don't know if Plantar Fasicitis is an actual diagnosis. Maybe someone else can chime in on that.

If the medical records that you sent them were not listed in the evidence section of the rating decision and SOC, then I would resend them and ask them to reconsider their previous SOC and request that either a Supplemental Statement of the Case (SSOC) be issued or a grant in benefits sought. Did you appeal these issues through a DRO? If not, then the rating activity at your RO issued the SOC. It would have been beneficial if you had requested a DRO review. Then you would have had a fresh set of eyes on your claim. If you did have a DRO look at these issues, then there is something missing as far as evidence ect... I say this because when a veteran request a DRO review, then by the end of that process, there has been probably more than just the DRO that has looked at the claim. Generally, also the coach of the appeals team and any other reviewer as look at the issue and the chances of major error slipping through becomes vastly reduced.

I hope this helps!

Vike 17

Edited October 3, 2006 by Vike17 (see edit history)

[Scottyp65]

Vike17

I see your point on all the issues and I belive the heart of it is was the evidence available for the rater. I contend it was has they had possesion of my MMR and any off base Dr visits/surgeries. I did have a DRO. I will submit the paperwork to keep things open and as things develop I will take the appropriate course of actions. Right now though I think my priority is to keep things open. I am very fortuanate to have time as I am P&T.

Thanks for bringing to the table the evidentiary view. I will keep ya posted.

ScottyP