lumbosacral Emailed Alison Hicky About Claim

[diver]

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

[georgiapapa]

Bilateral would include both sides.

[diver]

That's what I thought thanks

[Slowlane]

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

[free_spirit_etc]

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).

[georgiapapa]

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

[Berta]

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 .."...

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"

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 March 13, 2015 by Berta