TDIU, SMS S Opinions greatly appreciated.

[ArNG11]

I wanted to ask and receive input on the wording of my last form 9.  Any suggestions or critiques would be greatly appreciated.

"I disagree with the 02172016 decision.I disagree with the evaluation fo the neck injury as medical evidence of symptoms and severity are greater in degree than the 10% awarded. 20% would satisfy my appeal. I disagree with the effective date of the neck injury.  The injury was sustained in service and was a result of the HMMV ejection that occurred in the line of duty. I contend the VA had the DUTY TO ASSIST me in developing and including the neck injury as part of my initial back claim 08/02/2012.I disagree with the Special Monthly Compensation.I am housebound, my service connected injuries prevent me from being substantially gainfully employed. While I can leave my home for medical care I cannot leave my home for substantial gainful employment.I also contend that my injuries are permanent in nature and are not likely to improve.I contend that this would qualify and classify me as totally and permanently disabled.I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter might and could make in deciding this appeal.This includes all legal errors, all factual errors, failure to follow M21-1, all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR."

I feel this is complete, however, I wanted some opinions on the wording if possible.  Never give up. Slow is smooth and smooth is fast.   

Thanks in advance.

 

[john999]

I think you need and want medical evidence to support every contention you make.  The VA will say any secondary conditions or new conditions not presumptive or supported by medical evidence is just speculation which is something the VA is great at doing to the Vet, but not when the shoe is on the other foot.  I had medical evidence for my AO conditions to have a strong DX with no doubt especially regarding DMII and secondary conditions.  You just have to lock it up so they is no wiggle room .   I had a IME/IMO from my old psychologist  for bipolar condition and in the IMO my doctor mentioned I had chronic pain and was treated with opiates from the VA and my claim for higher percentage was denied.   The VA blamed my MH symptoms on the opiates ignoring the accepted Bipolar  DX.   I overcame it but it meant another IMO to explain what the first IMO said.  Time.......!!!!!!

[ArNG11]

Good point seminoles.  Insight is greatly appreciated.   I don't worry too much than I should on VA's medical opinion's as I can easily counter with contemporary records, however, I do see your point.  It is a very good one.  If the bozos don't ignore my private medical records like they have done countless times, I might be forced to get an IMO to counter if my medical records alone do not succeed.   

[ArNG11]

19 hours ago, john999 said:

I think you need and want medical evidence to support every contention you make.  The VA will say any secondary conditions or new conditions not presumptive or supported by medical evidence is just speculation which is something the VA is great at doing to the Vet, but not when the shoe is on the other foot.  I had medical evidence for my AO conditions to have a strong DX with no doubt especially regarding DMII and secondary conditions.  You just have to lock it up so they is no wiggle room .   I had a IME/IMO from my old psychologist  for bipolar condition and in the IMO my doctor mentioned I had chronic pain and was treated with opiates from the VA and my claim for higher percentage was denied.   The VA blamed my MH symptoms on the opiates ignoring the accepted Bipolar  DX.   I overcame it but it meant another IMO to explain what the first IMO said.  Time.......!!!!!!

Holy crap, yeah that would be time and money, if the VA doc wouldn't write a counter opinion.   I really do need to really measure if all this is worth the time and aggravation.  Frankly Im tired and get carried away when angry and emotional.  This whole ordeals just burns me up every time there are road blocks and traps along the road to victory.  

[Navy04]

• This Highway of Hell sure does have alot of speed bumps along the way. We just have to keep up the good fight.

[Lemuel]

What does your Medical File look like?  Have you read it thoroughly?  I'm finding many VA physicians put the right stuff in the file.  It is just ignored by the adjudicators in favor of the C&P examiners report which often fails to note the "objective" reports on radiographic studies.  Your case with your neck.  Also the neurologist's orders.  Did one order minimum exertion?

If you have a "Prime" account on "eBenefits" you can download your information from the "Blue Button".

My attorney said we couldn't challenge the "Duty to Assist."  But the BVA Judge in her 05112017 Decision noted, in her 37 page decision, that I hadn't raised the issue of "Duty to Assist."

Hopefully someone will give us some decisions here on the subject of "Duty to Assist."

Personally, I think most "Duty to Assist" failures become CUE's because of failure to consider evidence.

However, in my NOD for reopened claims I am claiming both.  CUE and Duty to Assist failures.  Don't want to leave something out. 

The Judge gave me a remand for most of my issues including a revision of a date for tinnitus from "Noise Trauma".  I thought there was a failure to consider tinnitus in my 07191975 claim for hearing loss.  But not so.  There was a liberalization that granted tinnitus due to noise trauma on 03161976.  That is apparently as far as it goes back instead of the 12091989 date an RO finally granted it based on the "hearing loss" claim.

[ArNG11]

1 hour ago, Lemuel said:

What does your Medical File look like?  Have you read it thoroughly?  I'm finding many VA physicians put the right stuff in the file.  It is just ignored by the adjudicators in favor of the C&P examiners report which often fails to note the "objective" reports on radiographic studies.  Your case with your neck.  Also the neurologist's orders.  Did one order minimum exertion?

If you have a "Prime" account on "eBenefits" you can download your information from the "Blue Button".

My attorney said we couldn't challenge the "Duty to Assist."  But the BVA Judge in her 05112017 Decision noted, in her 37 page decision, that I hadn't raised the issue of "Duty to Assist."

Hopefully someone will give us some decisions here on the subject of "Duty to Assist."

Personally, I think most "Duty to Assist" failures become CUE's because of failure to consider evidence.

However, in my NOD for reopened claims I am claiming both.  CUE and Duty to Assist failures.  Don't want to leave something out. 

The Judge gave me a remand for most of my issues including a revision of a date for tinnitus from "Noise Trauma".  I thought there was a failure to consider tinnitus in my 07191975 claim for hearing loss.  But not so.  There was a liberalization that granted tinnitus due to noise trauma on 03161976.  That is apparently as far as it goes back instead of the 12091989 date an RO finally granted it based on the "hearing loss" claim.

Good points.  I agree with Duty to Assist failure's eventually leading up to CUE's, however, if it can be brought up in a manner not CUE you have more regulations on your side to aid in your claim.   I will be curious to research the regs back in the seventies.  

So curious is your decision both for tinnitus and hearing loss?  Those can be rated separately if I am not mistaken.

I would advocate for an NOD/Form 9 over a CUE, however, there are points in time where CUE might be your only alternative.  Thanks for the insight.