Clemons Vs. Shinseki - Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC - VA Disability Community via Hadit.com Jump to content
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Clemons Vs. Shinseki

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add55p

Question

BVA noted Clemons vs. Shinseki in lumbar spine award decision. During examination, the examiner diagnoses several different back spine, muscle and nerve root conditions, to include arthritis. Highest ROM was 20.

Does this mean that the RO must acknowledge all of the back conditions noted in the examination even though I did not include them in my VA claim.

At least that is how I interpret Clemons vs. Shinseki.

Thank you..

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Your not a Dr so you can't possibly know all your related conditions. I read somewhere in the way back that when a Vet files a Compensation Claim the VA must proceed on the basis that the Vet, in his lay position, is filing for everything and anything SC and the highest rating possible. My take on that is, as your DX'd with any Primary or Secondary, aggravated SC conditions they become a claim automatically.

During your recent C & P, did the VA Clinician opine as to these new DX's being caused by or aggravated by your SC Claimed condition or vice versa? Get a copy of your C & P DBQ ASAP.

I've had 2 Secondary DX's to the same Primary SC over the past 4 years. I filed for SC the same day as the DX, didn't want to rely on VA to catch it on review, gotta love the FDC.

Semper Fi

Gastone

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Gastone explained it well.

The Veteran need only "point to the body part" that hurts to satisfy number 3 of the "Hickson" Elements:

1. The claim needs to be written. There are some exceptions..if you call the VA, and THEY write down your claim, this is ok. (But, I caution you to make sure they realy did write it down, because there are no guarntees).

2. The Veteran needs to "show intent" to apply for one or more VA benefits.

3. The Veteran must "identify" the benefit sought.

Example: Lets say you apply for DDD..degenerative disc disease. Then, your doc determines (diagnosis) spinal stenosis instead. We Vets are not required to have a medical degree and know the difference between DDD and spinal stenosis. Instead, "my spine hurts" would suffice to cover diseases the doctor diagnoses, providing you meet the multitude of other requirements. However, dont count on VA to do as required. VA can/will deny your DDD and just sit and wait for you to apply for Spinal Stenosis and do nothing, even tho that may not meet their regulatory requirements especially the duty to assist. You will have to fight VA tooth and nail to get them to follow their own regulations, as they will ignore them when its convienient for them.

I think some Vets think that every VA rater has intimate knowledge of the VA regulations. This is simply not true. If every VA rater had intimate knowledge of the requlations, and applied these regs carefully, then every single appeal would fail, except the ones where the BVA also made a regulatory/ or application error. Instead, the VA raters, for the most part, have no idea of what they are doing. Contrary to VA's position that some 90 some percent of VA decisions are correct, this is simply not true. It means that the Veteran did not successfully appeal the decision, there is a difference. Many Vets do not appeal for many different reasons, none of which are related to whether or not the decision is correct. Here are a few reasons why a Veteran may not appeal an "incorrect decision".

1. He dies.

2. He is too sick, or in too poor of health to appeal.

3. It does not matter to him..he either has plenty of money, or he just takes VA's or his VSO's word and "settles" for less than he deserves without an appeal.

4. He is afraid if he appeals he will lose what he has, a notion that many VSO's either initiate, or agree to.

5. He is unaware of appeal procedure and does something wrong, like sends the NOD to the wrong place, or waits until after the year to appeal.

6. He is unsure whether or not his appeal is "valid" or not, and sometimes gets bad advice "not" to persue his appeal.

7. He is aware the appeal is necessary, but feels he does not have enough time left to appeal. That is, he guesses he will probably expire before his appeal is completed.

8. He is homeless or has moved and does not even get to read the decision, because it does not arrive.

9. He is unable to understand the decision, and "assumes" it to be correct.

10. He is embarrassed to be applying for benefits, and does not want people to know he applied, so he does not appeal.

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11. After trying to navigate the system, denials and red tape, after years of waiting and trying, he gets worn down and frustrated, and just gives up and walks away.

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Mark: that's where sites like Hadit, VA Watchdog and all the other VET blogs come into play. Again, thank God, Uncle Al Gore invented the internet. Imagine how hard it was for Vets pre-net to research and connect with other Vets. We trust you will learn from our mistakes, Denials and Awards and not repeat what screwed our pooches. You certainly need to pack a lunch when getting involved in the VA Comp System, no such thing as quick in the VA manual.

In the end, no matter how long it takes, the RETRO Feels GREAT!

Semper Fi

Gastone

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Gastone

As I mentioned, the BVA Veteran Law Judge made a specific note in my award decision stating Clemon vs. Shenseki. It was being addressed, as far as I know, to the VARO rater.

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Again the C & P DBQ. As Bronco advised, "don't rely on the Raters to be Medical Experts." This is where the C & P Dr carries the day. If he/she opines to a SC Nexus "more or as likely than not," or anything close to that, fairly certain of a SC by the rater. Then it's all about your degree of disability per 38 CFR 4.

Semper Fi

Gastone

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