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! 

[FormerMember]

Always read your denial very carefully. It clearly states you have no service medical records of injured finger in service. This kind of trauma, if it is compensable, would entail going to the hospital or Emergency room. The absence of the evidence is what caused the denial. Dr. Bash can opine all day on your finger injury/scar being of service origin but with no doctor/medical report in your contemporary STRs, you really don't have an actionable case. If you use a buddy statement, you need his DD 214 and a statement with the codicil at the bottom of a 4138 (I certify that the above is true and correct to the best of my knowledge and belief) and a real life blue line signature. It has to be typed and done on one of the new forms that are online for VBMS submission. Remember anything written by hand won't fly because the word-searchable .pdf can't recognize handwriting.

A scar must exceed a certain size in sq. inches to be rated as compensable. VASRD uses the Rule of Nines. I don't think there are enough sq. inches on one finger alone to add up to a compensable rating short of amputating it. However, there is referred pain as an alternate path for compensation. Look at DC 7800 scar series and see if any fit your circumstances.

As for the irritable colon syndrome/UC/Crohn's, VA needs documented proof of the disease process while in service. If they are not seeing it ( and you have it), you need to resubmit it along with any nexus letter to the intake portal in Wisconsin/Georgia and "refresh" their memory. This is a rather new VBMS technique I wrote about recently here.

https://asknod.wordpress.com/2015/08/30/vbms-the-new-electronic-frontier-part-i/

Time is of the essence if you chose to fight with a reconsideration. You may couch your request in that vernacular but perhaps a "Please, sir. It seems you overlooked this document when making your decision. I do not see it listed in the evidence.  Could you please take another gander at it based on this? Use a 21-4138 catch-all form to ask for it. Do not launch a 21-0958 until there is nothing else for it if you intend to use this method.

[K_C]

Hi asknod, thank you for the info.

I would not file for a scar that did not happen in service. I may be confused, but not that confused.  The injury occurred in service (AD-USAF) and treated at the emergency room at Bassett Army Hospital. I supplied those records in the claim.

As for the rateability, my interpretation of 38CFR Part 4 is that a painful scar can be rated regardless of size. There is no size requirement for a painful scar. On the contrary, as I understand it, a painful scar rating can be combined/stacked with other 78xx DCs for the same scar.

7804   Scar(s), unstable or painful:
Five or more scars that are unstable or painful	30
Three or four scars that are unstable or painful	20
One or two scars that are unstable or painful	10
Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.
Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars
Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable

Whether or not the VA follows these guidelines as written, I couldn't say. Perhaps there is an inside sentiment that if a scar isn't huge, it's not disabling. I will attest to the contrary. I have a friend who had surgery on his abdomen and was left with a sizeable scar. He readily asserts he'd rather have that than my tiny finger scar, because he's seen how much of a punch it packs. It tingles constantly and shutters with pain and intense tingling when struck or squeezed in certain ways (think funny bone but with a larger pain element). It makes use of the finger awkward in many situations, especially typing. That's why I have had this $300 keyboard for years which has a 35g actuation force. When you work in computers, a typing handicap is impactful. The scar is painful, there is a rating for painful scar specifically, it causes me trouble in my work [and life], therefore I will continue to fight for the correct rating until the highest authority on the matter renders a final verdict that the words in the CFR are not as they appear.

IBS is admittedly more tricky. I was never diagnosed in service with either colitis or IBS. I got out in late 2008, in late 2010 I was hospitalized for my first severe colitis attack. In service, my complaints were always diagnosed as the complaint itself, somehow. So I go in with diarrhea, I get a diagnosis for diarrhea. Go in with abdominal pain, get a diagnosis of abdominal pain. Nobody ever dug deeper and I wasn't inclined to see doctors back then anyway. I was more into eastern/alternative medicine and didn't really pay much attention to my health. Hell, my diet was 30% Taco Bell, which also causes abdominal pain and diarrhea.  Before I even considered filing the claim I asked my Gastro doc if the symptoms I had in service were precursors or signs of IBS, he believed they were. So again here I am with these signs but no diagnosis. I have readily found and read over several cases (not IBS in particular) in which in service diagnosis was not necessary. It does make it a tougher battle to fight, but it's not a 0% chance.

Thank you for the link. Have it opened and will read it thoroughly.

I'm still plenty confused about the difference between a request for reconsideration, a request on N&ME, a request for DRO hearing versus an NOD with request for DRO hearing, an MFR as mentioned by broncovet (first I've even seen the acronym), and perhaps other appeal routes I am probably simply ignorant of entirely. I'm not even confident I know how to request any of the above. The 21-4138 seems like the go-to for all but an NOD appeal? And don't get me started on choices when going the NOD route--my vague understanding is that it has several flavors/options of its own. I've never felt this baffled in my life. I wish there was an activity diagram for all of this. If I ever figure it all out, I'll be making one.

[broncovet]

A MFR   Motion for Reconsideration (normally applicable when you have "new and material evidence".  See 38 CFR 3.156

DRO is Decision Officer Review.   This means a senior rating specialist does a "redo" on your decision often consideing the "new" evidence.  Its another RO decision by a senior rating specialist.  You "Elect" DRO when you file a NOD, if you do not specify whether or not you want a DRO, then the VA will send you a letter and ask for it.  

There is a DRO "Review" and also a DRO "hearing".  The difference here is you talk to someone and, importantly get a chance to review your file to see if its complete.    DRO hearings take longer than DRO reviews, generally.

If you do elect a DRO review, then the VA will send you a "Statement of case" or Supplemental statement of case.  An SOC, or SSOC means your claim was denied again by the Decision review officer and it normally means, AFTER you file the I9, that your claim will proceed to the Board Of VEterans appeals.  

DRO/DRO hearings/Reviews are controversial.  

If you are awarded benefits at the DRO level, its normally faster than going directly to the BVA appeal.  

However, if your DRO review is denied, you still have to appeal to the Board and have wasted considerable time.

I have been awarded benefits at the DRO level.  Others mostly get denied again.  I would say most Veterans advocates recommend a DRO, however, there are some who dissent as a denial is likely and would mean its dragged out.   I think a DRO is especially applicable if you have new evidence.  However, if you have no new evidence, but just dispute the RO decsion, then it may be faster to go directly to the BVA and skip the DRO. 

[FormerMember]

The only reference you will find for MFR is at the BVA when you are denied. It is a petition with a hand grenade pin attached to it- or was. If you asked the BVA Board Chairman, currently Laura Eskinazi, they would sit  as a Board of three and debate the merits of your MFR. If you pass the test, you would get a new BVA decision by that triumvirate. 

Likewise at the CAVC, if your Appeal was heard by a single judge and the decision was affirmed (you lost), you could also petition for a Reconsideration or convening a panel to hear it. Both paths are discretionary and can be denied on their merits or if there is no matter of first impression that needs a precedental opinion.

Technically, there is no MFR at the RO. There is, however, an administrative review that can be filed but we  aren't discussing that. 

https://www.law.cornell.edu/cfr/text/38/19.50

Most Vets think the party stops at Part 3 and 4 but there's still a mess of magic up in Part 19 and 20. A lot of us old timers have had to go up there to bag a win. I won back to 1994 not on what I claimed [3,156(b)], but on 19.29. The buttheads told me in the SOC they were giving me a de novo decision but never did. I waited 12 years and finally began to get the feeling they were funning me.  I won it all in 08 but had to fight for the earlier date.

Certain things just cannot be won at the RO. If it goes  over $25 K in retro, you need three signatures. If it's a Hep C claim from jetguns, forget it. You have  to go to DC. Some claims are just above the DRO's pay grade to decide. 

Best of luck.

 

Clear prop--kick the chocks

 

[Berta]

Right....MFR is only regarding a decision from the BVA.

A request for reconsideration is what a claimant can file on a VARO decision.

New and Material evidence is required and the Request must be filed within the one year NOD time frame, and then, if not acted upon, the NOD must be filed in timely fashion.....within one year after the decision.

[broncovet]

Chris Attig says MFR's are not good.  I have not used one, at any level of appeal.   The difference between a "Request for Reconsideration" and 

"Motion for Reconsideration" should not be used against the Veteran as Roberson requires a "sympathetic reading" be given to all Veterans filings.   The OP brought up MFR, even when most Vets advocates do not recommend their use.  I think the danger to Veterans is to view (erroneously) that their MFR is a NOD, and fail to timely appeal within the year.  Apart from that, the MFR or RFR should not hurt, but likely wont help, but they COULD help.  I think its a mistake to view the VA as a "unified body", where if you do x "VA" will do y.  Its a group of employees, that VA has admitted are untrained/poorly trained.  If you give the same set of circustances to 3 different VA employee decision makers, you are likely to get any number of results.   I really think its important, when dealing with VA to remember the "teenager" rules:  If mom says no, ask Dad.  If Mom and Dad both say no, ask Grandpa.  Most of the decision VA makes "on us" are subjective.  Another decision maker could easily have arrived at an entirely different result.  

 

There are 2 procedural mistakes that Veterans make on their appeals that wont be overlooked, tho:

1.  Timely filing of the NOD, within a year.

2.  Timely "perfecting" the appeal, by filing an I9, Appeal to the BVA.  

     Failure of the Vet on either of these 2 result in automatic denials.  

There is even a procedure for VA to follow if the Veteran's NOD issues are unclear:

M21-1, Part I, Chapter 5, Section B which states:

 

"If it is uncertain whether a communication from the claimant is a Notice of Disagreement (NOD), request clarification from the claimant.

 

Reference: For more information on requesting clarification from a claimant, see M21-1, Part I, 5.B.4.b."

The regulation continues:  

 

Veterans Benefits Administration (VBA) policy is to consider all claims sympathetically or liberally by generously construing the evidence and resolving any ambiguities in the appellant’s favor.

 

Department of Veterans Affairs (VA) employees should liberally evaluate all evidence and statements from appellants to ensure all appealed issues are addressed. This does not require reading into the record an argument that has not been made. 

 

Important: Effective March 24, 2015, VA will only accept issues listed on a timely VA Form 21-0958, Notice of Disagreement, if required, as part of the appeal submission for compensation. Any additional evidence or statements suggesting appealed issues will be considered a request for notice of disagreement.

 

Exception: There is no standard form requirement for an NOD which contests a pension decision.

References: For more information on

• construing appeal submissions, see

• Harris v Shinseki, 704 F.3d 946 (Fed.Cir. 2013) and

• Comer v. Peake, 552 F.3d 1362 (Fed.Cir. 2009)

• documenting the sympathetic review of appeal submissions, see

• M21-1, Part I.5.D.2.a, and

• M21-1, Part I.5.D.4.d, and