Varo Decision Errors

[broncovet]

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.

[broncovet]

Vync. I agree. Berta often says VA can not read. I think they "top sheet" these, and read the first 2 pages then issue a decision.

Turtle: With hearing loss there are 2 issues: First, is is service connection. Normally your audiologist offers an opinion that your "hearing loss is at least as likely as not based on (noise exposure) during military service". If your audiologist offered such an opinion, then its likey you will evenentually get SC for hearing loss.

Next, is your disability percentage for hearing loss/tinnitus. You will be given a hearing test C and P exam, and the audio will measure your hearing. Your disability percentage, if any, will be based on the "numbers" once service connected. If your audio opined that it was due to service, if you post your numbers, I can estimate your disability percentage. You need to post both "speech discrimination" and "puretone average" in both ears to do the estimate.

Rick: To "fix" these errors, you have these options: 1. File a NOD and appeal. 2. Contact your VA they "might" what Berta calls "Cue themselves".

3. Do nothing in which case your decision will likely become final after a year. If you do get benefits, but at the wrong effective date, you can appeal the effective date.

Mrs. Football:

Bad medical or C and P exams are a problem. There are 3 possible "fixes" for bad C and P exams:

1. Talk to another VA doc and see if he will offer a more favorable opinion. If you dispute the other doc, tell him why and see if he will offer a rebuttal to what the other doc said.

2. GET an IME/IMO.

3. Challenge the adequacy of the C and P exam upon appeal. Some challenges that work are: a) The examiner had little or no expertise in the applicable medical field so he was not competent to offer a professional medical opinion. If he was a bone doc, and had no experience with sleep apnea, for example, then he would not be competent to opine about your sleep apnea. b) The examiner did not review your medical records, such as they were not available. c) The examiner did not give a medical rationale as to why he made such an opinion. The medical examiner is assumed to be competent UNTIL OR UNLESS you challenge his adequacty.

Only other medical professionals can rebut medical opinions. My lay evidence is insufficient. It does not matter if I think the doc did not know what he was talking about. If he was an expert in his field, then I need another medical expert to refute his opinion.