Small Win But Still Riddled With Mistakes

[Scott D]

Today I received a letter that stated the VA had finally recognized a service connected disability under diagnostic code 7203 Stricture of the Esophagus. It took a year and a half and a few IMO's from my private doctors. I consider it a win because I fought to have the 7203 removed from a grouped rating under 7436 Hiatal Hernia which encompassed Hiatal Hernia, GERD, IBS, and Eosinophilic Esophagitis. This grouped rating was in contrast to the rules established in CFR 38 Book C Para 4.114 which precludes rating 7203 from being combined with 7436. Hopefully that makes sense.

In the letter it has rated 7203 at 30% but ignores 2 x-rays and 2 IMO's that demostrate and state my inability to swallow solids. Which would be a higher rating. Same old low ball VA trick.

Also a statement is made that says, "A seperate rating is being done , on the above(7203) issue. You will receive a copy of that in the next few weeks. Since the changes being made do not increase your combined service connected compensation, your appeal is not considered to be resolved and will be continued, if you file an I9. What does that Mean? Any ideas?

As far as I know i should be rated

30% Hiatal Hernia

30% Stricture of the esophagus

10% Anxiety Disorder

10% Tinitus

A few 0% ratings.

With Biploar service connection in appeals.

Thanks

[Vike17]

Scott,

You said that the rater ignored 2 x-rays and 2 IMO's. Sending in actual x-rays to the regional office really doesn't do any good. The RVSR (Rating Veteran Service Representative, or rating specialist) doesn't and can't read them. This would be considered a medical determination and they are prohibited by doing so by law. The only thing that the RVSR may do is send the x-rays to the nearest VAMC to be read. The only thing you really need to do is send the actual write-up from the x-rays to the RO. If your doctors didn't give their rational for their opinion, that may be a reason why their opnions weren't afforded very much weight. Now, if the IMO's were completely left out of the evidence sections and weren't addressed in the reasons and bases postion of the rating decision as to why they weren't probative, then you should resubmit them and ask the VA to reconsider their rating. To have the VA reconsider their rating based upon new evidence doesn't, or shouldn't, take as long as an actual Notice of Disagreement.

After re-reading your post I'm a bit confused. You said the VA sent you a 'letter' stating that the 7203 code was rated seperately at 30%. Was this an actual rating decision? You then state that the VA will send you another rating for DC 7203. Something doesn't sound right. Could you give some more info and maybe I can sort this oput for you.

Also, If you are already rated for an anxiety disorder, you won't receive a seperate rating for bi-polar. They will be 'lumped' together and the more disabeling condition will be rated.

Vike 17

Edited October 14, 2006 by Vike17

[Berta]

Good advise Vike-

there are few cases where a veteran should ask for a decision to be reconsidered and this is one of them.

It still pays to watch out for the time for filing a formal NOD however-

I did this with my two CUE claims.

Their decision made no sense at all and I supplied them with more evidence and asked for a reconsideration.

They immediately began to re-work the CUE claims.

They had listed under evidence as "letters from the claimant" an Office of General Counsel Opinion probative to my CUEs as well as a copy from M21-1 I sent them of their own regs pertaining to my CUEs in the denial.But failed to address this evidence.

I was surprised at what their denial hinged on.

The veteran was rated 100% in Sec 1151 disabilities. He also was rated 100% SC for PTSD.

at the very least they should have awarded SMC "S" as an accrued posthumous award when they awarded his 100% accrued benefits posthumously.

The denial of SMC entitlement was the CUE in an old decision.

The VA denied my CUE on this in July stating that the veteran did not have a Section 1151 claim pending when he died, therefore he was not entitled to retro SMC.

But he did- the Section 1151 is right in the c file. I re-opened his Sec 1151 claim when he died.He had called VA the morning he died -and it had been with a rater for months and was still at the rating board with his claim for higher PTSD rating.(awarded posthumously)

My charges were the same as his were.

I am trying to see their logic.

If the veteran did not have a Section 1151 claim pending at death-I could see them denying the CUE.Nothing would have accrued.

But he did and under my re-open, it was resolved and granted as far as DIC goes.

The fact of his death did not alter that pending claim.It only changed the claimant who pursued it.

I brought this all up in my reconsideration request and , although they immediately started to work the CUEs again (there are 2 regarding his 1151 disabilities)

I am still quite conscious of the need to file a formal NOD by next July if I need to.

The VA itself re-opened a past CUE I had at the BVA by filing a Motion for reconsideration at the BVA.

I still have no idea what that is all about.The BVA told me they have no idea what decision the VA's Motion regarded.

It could generate a service connected death award a much different way

-but that would snooker me out of the Nehmer Court Order and the retro I discussed with NVLSP.

I say they are dumb sometimes in the way they handle decisions- but the reality is at some point they certainly get very smart and figure out the potential expense of many claims.

And then they try to limit it.

Edited October 14, 2006 by Berta

[Pete53]

Wow Scott 10% for anxiety? I can't believe I have met someone online who has a very mild case of anxiety. Do you only worry once every 10 days?

[LarryJ]

10% for anxiety would cause me to really worry excessively-------------then my bi-polar would kick in.... :(