Varo Decision Errors

[broncovet 3,621]

I thought I would help explain a little about VARO errors, as they often follow patterns:

1. The VARO must give a "reasons and bases" for its decisions, or else it is error. I recommend, if you have favorable evidence if your evidence is not listed in the decisions "evidence" section, that you appeal it on that bases. If your pertinent evidence was not considered, then you can ask to reopen under 3.156 based on the "new" evidnece.

If there is favorable evidence in your file, and VA denied it anyway, and did not mention this favorable evidence, you can appeal on the bases that you had favorable evidence and the VA did not give a reasons and bases as to why this evidence was not considered.

2. Issues "reasonably raised" by the record, but not adjuticated. This is error, but the VA wont do anything about it, usually, unless YOU bring it up.

3. Compliance with "notice" and other regulations. Just because the decision "says" they complied with a particular regulation does not always mean they complied. Read over the regulation and see if they really did comply.

4. Not rating you on criteria. My first denial was on hearing loss because "it was too long since military service". This is not one of the rating criteria for service connection or hearing loss. If VA lists a denial based on non critieria, nail them on it. They can not say, "Im denying the Veteran because he wears purple spiked hair". This is not the criteria. Look it up and make sure they give a "reason" as to why you did not meet one or more of the criteria in the denial. Many/Most BVA decisions say,

"The criteria for xxxx has (or has not) been met. You meet the critieria, you get the award. If you dont meet the criteria, then they need to explain why you did not meet the applicable criteria.

5. Absence of Evidence is not Evidence of Absence. Let me explain. If your cfile says "nothing" about your condition, this does not mean you do not have the condition. There could be many reasons why your file has nothing in it about your malady, the most common of which is that the VA can not find the evidence or does not have it. Now, "evidence of absence" is a valid reason for denial. If you go to the doctor, and he xrays you, and he says, "No, the xray is negative for any sign of DDD", now this is a valid denial reason. Its negative evidence or "evidence you dont have DDD". It is not the same thing as there is NO xray. Dont let them do this. If the VA has "negative evidence" then let them cite the medical report where the doc did a test which came up negative. You can deal with this with an IME/IMO. But, just because there is nothing in your record about DDD or xrays, this does not mean you dont have DDD. It means your records are probably incomplete, if you have taken these tests, or, if you have not taken the tests, then you should be given a C and P exam.

[Vync 1,995]

5. Failing to read the C&P exam ranges of motion correctly, resulting in significantly lower rating.

[Guest]

Bronco, I can follow your point but some veterans would just give up and say the heck with it or some veterans would file an NOD or a request for reconsideration/reopen claim and if VA grants the NOD/reconsideration/reopen claim screw the veterans effective date up and the veteran would still have to file a form 9 or a NOD to get this mess all fixed which could take years. So the bottom line is veterans are still getting screwed.

[turtle5252 1]

Thank you for taking th time to explain in detail this complex issue!

Your post brought up this issue for me: C&P Audiologist said I had hearing loss that is significient. He also questioned me about tennitis....both were very evident!

My question: I have no way to take this back to Thailand during Vietnam.

Are the results from the Audiologist enough to give me a rating other than 0%?

Edited July 29, 2015 by turtle5252

[Fat 236]

Good information.