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Emailed Alison Hicky About Claim


diver

Question

I emailed Allison Hickey yesterday regarding my claim at 12 by 330 I received a phone call from the assistant director of the Seattle VA. The email was about the denial of my claim for chronic severe hip pain secondary to my service conected knees and sciatica secondary to my lumbar strain. I talked to him for about 20 minutes and explained that in the decision reasoning they stated that there were no current and active diagnoses for my hips. I told him that I spent a month trying to get into the va ortho to get a diagnoses and I was told that I have an active diagnoses in my VA records from 2006. Again it is an ACTIVE diagnoses. So I told the assistant director that that means that the reasoning for the denial was false and needed to be corrected. I also told him that with the imo that stated that my chronic hip pain ARE caused from my service connected knee condition and the C&P exam stated that it was at least (that sucks but at least its something) as likely as not there should be enough evidence to find in my favor. I also stated that with the findings from the C&P the rating would be 20% for 1 hip and 10% for the other hip.

As for my sciatica, again the rater stated that there were no diagnoses of sciatica. I informed the assistant director that the Dr at the va showed me the diagnoses for sciatica and for lumbosacral spondylosis without myelopathy of L5 S1 and that the MRI on 12/20/14 has a 4mm bulge. And that the diagnoses show up in the myhealthyvet Blue button list. The C&P dr stated that lumbar strain cannot cause sciatica. To counter that I found 8 BVA decisions from 2014 alone that have sciatica with lumbar strain including one that specifically states “ service connection for left & right lower extremity sciatica associated with a service connected lumbar strain is granted”. I sent an email containing all the Citation NRs to the RO that has my file.

Well I hope that I did the right thing here and that it will help my claims. He stated that I will hear back from him in a weak or two after they have a chance to review the decision of the claim and whether they find that there is enough evidence to overturn the denial and grant my connection for them.

So my questions are

  1. Did I do the right thing with this claim.
  2. Does anyone have BVA claims for chronic hip disorders that I can use as evidence? I did not really find any and I must admit I am very new at researching the BVA decisions.
  3. And finally. How is sciatica rated? I know the basic but what I have is pain in both butt cheeks down to mid thy and down the back of my left leg. Are they rated separately or are they rated as one? I have not been able to track this down. I have seen both legs being rated separately but I have not seen anything about the butt cheeks.

thank you all

diver

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Your claims for sciatica is rated by va as "radiculopathy" and each lower extremity is rated separately with a bilateral factor included. Sciatica is a symptom with radiculopathy being the actual diagnosis. They know this but they sometimes play dumb and leave this point out when rating. Stress this point if needed. ..

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diver,

I think you did the right thing except for stating you found 8 BVA decisions supporting your claim. You need to find some BVA decisions supporting your claim ASAP. You can go to www.bva.va.com and click on "search decisions" and type in key words in the search block such as "sciatica, radiculopathy, etc."

You can search under 38 CFR part 4 and find the Schedule of Ratings for the medical conditions matching your medical condition and get an idea as to how it is rated. I have sciatica in my left leg and hip and my ortho doctor (spine specialist) stated it was caused by spinal stenosis at the L5-S1 level. You can find spinal stenosis in 38 CFR part 4.71a.

Good luck to you.

GP

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I just received a call from the ro in the Philippines. She stated that I have been rated 10% for my left leg sciatica including my left hip and nothing for my right side. I don't know how I feel it's great to have the increase but my chronic hip pain is 15 years old and my sciatica is only a couple of years old. They are going to try to have the actual rater that made the decision call me to explain why they did what they did.

Diver

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Ok the call. The raiter stated that the hip was added because the diagnosis for my hips is for hip pain and that that can not be rated. She stated that if I get a diagnosis of something other than hip pain then they can rate it. My sciatica was rated because it runs down my left hip. she also said that the diagnosis is all they need because they know that with my back and knees it will cause the hip problems.

Question if I am rated on only one side is it still bilateral? I think not but I hope I'm wrong.

Diver

Edited by diver (see edit history)
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Bilateral would include both sides.

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diver,

I think you did the right thing except for stating you found 8 BVA decisions supporting your claim. You need to find some BVA decisions supporting your claim ASAP. You can go to www.bva.va.com and click on "search decisions" and type in key words in the search block such as "sciatica, radiculopathy, etc."

You can search under 38 CFR part 4 and find the Schedule of Ratings for the medical conditions matching your medical condition and get an idea as to how it is rated. I have sciatica in my left leg and hip and my ortho doctor (spine specialist) stated it was caused by spinal stenosis at the L5-S1 level. You can find spinal stenosis in 38 CFR part 4.71a.

Good luck to you.

GP

GP

I did not think you could use BVA cases to support your claim.

Thanks, Slowlane

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A BVA decision is not "binding" on other claims - but A non-precedential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992).

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Slowlane,

I cited a BVA case provided to me by Berta in my last claim because the facts were almost identical to my own situation. It was listed by the RO as part of my evidence in my award package and I prevailed just like the person in the BVA case.

GP

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I used a few BVA decisions ( one was an old one of mine) to prove some legal situations ,in some of my VA claims.

I dont send the entire decision, I scan it into my rebuttal or NOD etc and then add the Docket #,Citation#, date, and hyperlink.

They are usually ignored by ROs unless they have a legal point.

BVA does not ignore them if the claim gets to the BVA.But often makes a point that they are not binding as Free Spirit said, unless the older BVA decisions involve a legal nuance, important to the claim.

Or something the BVA cannot possibly ignore.

It depends on what BVA decisions you send.


I scanned a brief excerpt of one into my pending CUE claim.It was the three prong factor of CUE, which I then referred to right away as to my evidence proving those prongs existed.

This is why they "granted" the CUE but didnt address the third prong properly.

It is the third prong that costs them money.
"
" The three prongs are:

(1) either the correct
facts, as they were known at the time, were not before the
adjudicator (i.e., there must be more than a simple
disagreement as to how the facts were weighed or evaluated)
or the statutory or regulatory provisions extant at the time
were incorrectly applied;

(2) the error must be undebatable
and of the sort which, had it not been made, would have
manifestly changed the outcome at the time it was made; and
(3) a determination that there was clear and unmistakable
error must be based on the record and law that existed at the
time of the prior adjudication in question. See Damrel v.
Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3
Vet. App. 310, 314 (1992)."
http://www.va.gov/vetapp04/files2/0417563.txt

"ORDER

Entitlement to an effective date of March 1, 1992, for the
award of Dependency and Indemnity Compensation based on the
cause of the veteran's death is granted, subject to the law
and regulations governing the payment of monetary benefits." A surviving widow filed this CUE and won it..


This is a good one.... the RO director told me the other day, that I didn't need to file a NOD but I did.,in time.

She seemed confused that I filed a CUE was well as the NOD on an Award letter. and said I didn't have to even have filed the NOD.

I said "say what? I had to file a NOD on every award letter your VARO sent me.'since 1996 .."... :ohmy:

But I also filed a request for extension of the NOD (hoping they would deny so I can get that to the BVA) and they didn;t make any decision on that at all.she said something like I forget, they forget...whatever...

thank GOD my file is going to VA Central.

I used an excerpt from a BVA case regarding requests to extend the NOD time frame and explained why ,in some cases, those requests are granted,on the NOD request.

BVA decisions do contain references to precedent settings cases, .

and any claimant can access the cases the BVA refers to, read it, and cite how VA should apply that case to any NOD and rebuttals they send, for their claim.

I use the citations to precedent CAVC cases that M21-1MR uses, because I use M21-1MR against them

at every chance I get, as well.

They might not have applied the DeLuca factor to your claim and maybe they should have.....hard to tell based on what is here....

I have had multiple emails and phones calls from my RO director, and found that she is far away from understanding th claims process.....and doesn't remember the regulations, that I know like the back of my hand....

she is very nice to talk to but if it, for me, like talking to my former vet reps.

They didnt have a clue either.

Diver, it is what VA states on paper that is far more important then how a RO director is trying to explain it.

Somehow, as in my case, she was trying to tell me that although my husband's evidence all revealed he was 100% P & T for a CVA, he wasn't really 100% for P & T enough to award the retro they owe me.He was only 100% P & T for 6 months but, per her,

They dont owe me the other 20 months.

Of course she had no regulation to support that.

And was stunned when I suddenly saw another CUE in the decision.,while I was talking to her.

Even with the older rating sheet listed as evidence they failed to consider one of the prime ratings.

But they still added it up to 100% .

Am I going nuts. vet was 100% P & T for CVA until he died.By all medical evidence.

VA now says he was 100% but not P & T. The director said it was a 'temporary condition" :wacko:

Every vet who dies with 100% rating ( 1151 or SC) is P & T for the SC when they die.

Because the disability lasted their lifetime with no improvement or change.

Basic VA case law

That is why on my accrued claim for PTSD, they ignored the veterans TDIU form but rated 100% P & T for PTSD SC after he died,with an EED of 3 years prior to his death.

Depend on the letter Diver, not on what any VA director says.

Edited by Berta (see edit history)
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Thank you very much Berta. I will look forward to get the paperwork. In the meantime it was great to be able to pick the brain of the rator and see what exactly in her eyes I am missing to get rated for my hips. To me it was very valuable.
Diver

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Great..... my rater doesn't think that my husband is permanently and totally dead I guess.....

so the CUE succeeded but not the accrued payment they owe me.

And I got the most unusual and incompetent medical 'review' last week that in 20 years of being a claimant myself,

is so strange I cannot believe any VA medical professional prepared it.

The director ,who was going to send me a copy of the actual exam, "forgot" to copy it from the 10 volume C file stuff, before she sent it to VACO. forgot my butt....

They dont want me to see it. I have successfully knocked down every single past C & P exam they ever did.

I only had IMOs for one claim.

The rest I did myself with my lay medical background.

I already prepared a rebuttal to it , as to how it is worded in my decision for my HBP 1151 claim because the director said she would call me, yesterday, with the contact person at VACO who will handle my 2 claims.

She never called.

I can call VA Central Myself.

One contact person for one of the claims would need to be at VA OGC. I like dealing with them.

VACO already gave me a strong and favorable medical opinion on the HBP 1151 under 1151.,requested by the OGC.

The RO medical 'person' tried to go against this same VACO OGC opinion.

I sent the director the healthgrades rundown on the original VACO opinion I got.years ago This doctor is still at VACO,

2 separate board certs, cardiologist, expert in cardiovascular disease, and multiple other cardio areas, and also expert in HBP.

I get a RO med opinion from someone who thinks they are an expert in Spin. BS to that.

This whole thing is as bad as the evidence I proved of a cover at one VAMC in the malpractice at another VAMC,

years ago, and a continued absence of proper medical treatment for my husband, that caused his untimely death at age 47. (documented)

Edited by Berta (see edit history)
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I sometimes use BVA decisions, but, instead of citing the BVA decision, I cite the precedential decision they cite. This way, I avoid all the "non precedential hocus pocus" the VA loves to throw at us. If you carefully read the applicable BVA decision, they often cite a precedential case. Use the precedential case instead.

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I sometimes use BVA decisions, but, instead of citing the BVA decision, I cite the precedential decision they cite. This way, I avoid all the "non precedential hocus pocus" the VA loves to throw at us. If you carefully read the applicable BVA decision, they often cite a precedential case. Use the precedential case instead.

I agree. That is where I got the "A non-precedential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992)." - from a BVA decision.

And diver -- once you find something you might want to cite -- you can do an additional search for that case. For instance, in the above, do a search for Bethea v. Derwinski, and it will pull up BVA cases that cited that case, and you can find the reasoning worded in a variety of ways, and look for one that best supports your claim.

But with that being said, there are still times when citing the BVA cases might be the best thing you can come up with.

My husband's doctor told him that his cancer started a long time before he got out of the service. He explained that was based on his type of cancer's doubling time / growth rate. When I did a BVA search on cancer doubling time and growth rate, I found that most of the claims I pulled up were granted. Most of the claims were similar to my husband's -- where the cancer was diagnosed within a few years of getting out of service, but the nature of that type of cancer was that it would take many years to reach the size it was at diagnosis. It wasn't a case where I was able to find a case or two that were granted. I started clicking on the cases I pulled up under the doubling time search term, and found most of them were granted. The ones that were not granted were usually ones in which the claimant did not get an IMO, and just gave their own opinion and a couple articles to support the claim.

Despite the fact I found many of those cases, most people continued to tell me that my husband's cancer couldn't be service connected unless it was diagnosed in service, or he had boots on the ground in Vietnam. Even the couple of lawyers I contacted turned down representing me, and the VSOs told me I wouldn't be granted benefits because his cancer wasn't in his SMRs and he didn't have boots on the ground.

Despite the fact, §3.303(d) specifically addresses Post-Service diagnosis of disease, most people will tell you it has to be diagnosed in service, or exhibit noticeable symptoms in service. But the BVA cases told me different.

Of course, I had my IMOs, but I couldn't find precedential cases that specifically addressed cancer onset based on growth rate. So I used the BVA cases in my argument. I submitted the following:

"Entitlement to service connection based on doubling time and / or growth rates of cancer is not uncommon. Service connection has been granted on this basis in various claims. (See BVA Citation Nr: 0932955, BVA Citation Nr: 1132635, BVA Citation Nr: 0202424, BVA Citation Nr: 0905201, BVA Citation Nr: 0022373, BVA Citation Nr: 0521737, BVA Citation Nr: 1308760). A non-precedential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992)."

Ironically, one of the cited cases was decided by the judge who was deciding my case.

I also attached a copy of the excerpts of the portions of the decisions that addressed the issue.

The way I used the BVA decisions was similar to the way you are using them. In your case, the C&P doctor didn’t just state that YOUR sciatica isn’t caused by lumbar strain. He stated lumbar strain CANNOT cause sciatica. All the BVA cases you found certainly point out that the doctor did not use sound medical reasoning in his decision.

However, though you can point out that the opinion was inadequate because of that statement (and other issues in his report) you will still need to have a doctor state that YOUR sciatica is more likely than not caused by your SC condition. They can’t just base that on the other BVA cases.

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diver,

Chris Attig has some interesting info here about Inadequate Exams http://www.attiglawfirm.com/communicate/inadequate-c-and-p-exams/

Here are a couple cases that might also help.

See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that the Board erred in relying on a medical examiner who “ultimately relies not on the objective medical evidence, but rather the absence of such in reaching her opinion”)

See Dalton v. Nicholson, 21 Vet. App. 12, 39-40 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

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thank you free_spirit_etc for that great information. the VA gave me the sciatica and decided on their own that it was caused by my lumbar strain. I don’t know if they used the BVA decisions or if because the Alison Hicky was involved but now that they have stated that it was they cant come back and say that it now isn’t. I am setting up appointment with the spine Dr that did the diagnosis to discuss with him about the decision. The Dr saw me for my sciatic running down the back of my left leg and on the bottom of my left foot, in both butt cheeks down just past my hips. The rater said that they could not give the right side and down the leg because the Dr just put my left hip. So I will see if I cant get him to correct his diagnosis and then I will file it and hopefully get the right side and my left leg.

diver

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Thank yew to all for sharing all of this deep information and I apologize if I misdirected this thread to BVA decisions. To me, this is wonderful information and slow as I am it will take me days to absorb it.

Respectfully,

Slowlane

ps: I'll be back

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