Blind Denial - Want to avoid flat-out appeal. What would be your course of action?

[K_C]

Hello all and thanks again in advance for the advice. I can engineer and troubleshoot complex enterprise and service provider networks, reclaim compromised systems, and develop robust web applications, but what I have not managed to do is understand and navigate the VA. It's like spaghetti in my mind that constantly gets stirred. The more I learn, the more confusing it gets.

So, most recent claim I got a C&P for one condition but not for the other two, which were denied. I call it a Blind Denial because the reason they gave for the decision was obvious I did not even look at your claim material.

Since the decision, I have acquired a favorable IME. There are a few things I know I can do, but I'm still not clear on the pros and cons of each, and that each offers its own benefits in certain situations. My primary goal is expediency and I am willing to sacrifice claim date, etc., to simply get a service connection and rating. I believe at least one of the denied claims is rock solid. As in, there's no way I can see a rational person could even approach denying it after having actually looked at it.

The options I think exist (please feel free to skip this part, I'm just showcasing my ignorance really):

1. NOD Appeal to BVA - Wait in line for years - Want to avoid as much as possible
2. Ask for local hearing? - I'm not actually clear on this, I've been told different things. Can I request a local hearing and actually get one in less than a year?
3. Reconsideration - I think this is where there has to be New and Material Evidence, no? I'm not even sure if there are speed advantages here
4. ??? - I've heard of other things here and there, some I think are just different names for the same thing. Hence my persistent state of confusion

If someone has time and knows all the options I have at this moment, I would greatly appreciate a plain [for dummies] list of those options and their pros and cons/pitfalls in this context (or a general context)? If you were me and your primary goal was speed over all else, in which order would you personally pursue each option? If not, something also helpful would be a knowledge article or other forum post that covers the general options available immediately after an original claim decision is rendered (I have as of yet been unable to pin one down).

Thank you in advance for your help. Best of luck to all on your claims. If your name was Mr. Lockheed Martin or Ms. General Dynamics, you'd have no issue squeezing millions out of the DoD in the name of patriotism. But us, well, on we fight! 

[lotzaspotz]

I read recently that roughly 85% of decisions made at the Regional Office level are denials, so the chances of your avoiding a Board appeal are slim.  The mad dash to clear the claims backlogs has resulted in the VA issuing mass denials to get claims off their radar screen, since once they become appeals and are the Board's problem, that claim is no longer considered part of the claims backlog.  Most reconsideration requests result in regurgitations of the original denial, with the one year meter still running on the deadline to file a Notice of Disagreement.  If you file a Notice of Disagreement quickly and include your IME, that NOD is supposed to trigger a review of the decision anyway, and the IME will require that the RO review that new evidence and either grant the claim or explain why they continue to deny it.

I would file the NOD with your new evidence, also cite the fact that you were not offered C&P examinations for two of your claims, then file a Board appeal asap.  I don't think, in reality, you have all that many options.  

[pwrslm]

It comes down to facts.  I learned this from Bertha.

Studying info here, I have come to realize that Bertha has opened a big hole in the VA game.  They like to omit things like facts in their decisions.  CUE's are based on either the correct facts were not before the adjudicator or statutory or regulatory provisions in existence at the time were incorrectly applied.  The second part, about statutory or regulatory provisions not being correctly applied is the key.

If facts that are contained in the C File are not considered in the process of making the decision, then that is an omission. They have to use all of the info in the decision or its not valid.  Study up on what Bertha posts on the CUE issue, either way its great info.

Pointing out their CUE is much faster than an appeal.  If they are willing to correct their mistakes, without a formal appeal, it is best for everyone.

 

38 CFR Ch 1 Part 4 Subpart A

§ 4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

 

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

 

§ 4.7 Higher of two evaluations.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned

 

 

 

 

Note;  If you got your decision letter and the 2 denials had a basis that excluded service connection, then a CUE probably would not be helpful.  If your IME would help the case, request they reopen/reconsider the claim with the new information provided..

Edited September 18, 2015 by pwrslm

[Berta]

 I was successful with CUEs in a few instances but VA managed to drag one of them out for many years.

I certainly feel a Reconsideration is in order here, offering the IME as New and Material evidence.

Did the IME fully follow the IME criteria here?

When was the decision dated?

Can you scan and attach the decision here? (Cover C file and personal info prior to scanning it)

 

 

[K_C]

Thank you lotzaspotz, pwrslm, and Berta.

I have the IME report and it is favorable on both. It hits the key points I have seen mentioned on these forums--it uses the verbiage "at least likely as not", it lists the medical records reviewed, and it has a pretty thorough explanation of how the conclusion was arrived to. Dr. Bash provided it and I am more than satisfied with it. Are there any other pitfalls I'm potentially missing?

I forgot to mention that I also now have five sworn declarations (two for the scar--including one from the sergeant that took me to the emergency room, and three for IBS) and one new medical record that I will include in my petition.

I actually received two decision letters. Both are identical in decision, but the first one looks more computer generated. The second one has the old style decision letter with the seal at the top. Decision letter portions are shown below. First, the statement on the scar is flatly laughable. The laceration that caused the scar is plainly and clearly documented and was provided to them. Second, they do not mention specific medical records reviewed, except for 1--whereas I submitted 19 individual records. They surprisingly mention my statements in support of claim despite my knowing they did not read the first one. The first letter is my letter of explanation and a summary of my records (3/15/15). The other two letters were responses to their request for clarification (3/30/15)--which would have been wholly unnecessary had they read my first letter--and their pulling my claim out of FDC (4/30/15)... which they did because of their illegitimate request for clarification.

 

With all this in mind, including the New & Material Evidence of IME and five sworn declarations, it sounds like the recommended route is a reconsideration based on New & Material Evidence. Is that correct? Is that exactly what it is called, because last time I asked for a reconsideration they said that meant I wanted an appeal, and then they didn't actually start an appeal, but also said I could no longer ask for a reconsideration when I finally pushed them for answers (~8 months later). If the suggestion is the reconsideration based on N&ME, that's exactly what I'll do, but I want to be sure I do it right. Am I asking my VSO to re-open the claim and giving him the new evidence? Should I submit a specific form myself via signature mail?

Thank you again and apologies for my persistent confusion.

 

 

 

[lotzaspotz]

You stated you have an IME; did Dr. Bash personally examine you?  Or did he perform a records review and render an IMO (opinion vs. examination)?  Our IMO from Dr. Bash was dismissed because he didn't personally examine my husband, and thus the IMO was deemed not credible.  We're still battling with them on that issue, among others.

If you file a reconsideration request, just remember that the meter continues to run on the 12 month deadline to file your NOD.  Your deadline to file an NOD may run out before the RO makes a decision on your reconsideration request, it's been known to happen.

 

Edited September 18, 2015 by lotzaspotz

[K_C]

@lotzaspotz

Sorry, it's an IMO. Though, he did have me send photos of my scar and I would not think there's much to examine with IBS, especially anything that I haven't already undergone (colonoscopy, many labs, multiple physician examinations, etc.).