How does it look for my BVA appeal to you?

[kent101]

I looked at my C-File and the reason they denied my sinusitis was that they said I had no treatment for it in my medical records. In one of my medical records it shows that I told my doctor I had sinusitis. The doctor didn't treat me for it after I told him about it. So the VA says because the doctor didn't treat me for sinusitis that it doesn't matter if I mentioned I had it. At my C&P exam the doctor said it was more likely than not that my sinusitis was caused during basic training. The C&P doctor said also that I had allergic rhinitis. On my last claim I applied for rhinitis and they denied that too. The C&P doctor years before then said that my rhinitis was more likely than not caused during my service too. It's been 5 years so far waiting for my BVA appeal. When I wrote the letter I said "How's it my fault that the doctor failed to treat me for sinusitis when I reported it"? Do you think I'll be giving this sinusitis disability rating or not?

[kent101]

On 2/27/2018 at 6:09 AM, broncovet said:

Based on what you posted, you should win this appeal.  

The criteria for service connection, is as follows:

1.  Current diagnosis (of sinusitis).

2.  In service EVENT or aggravation.  You dont have to have a in service "treatment" or an in service diagnosis.  This is a bogus denial, that some VA rep "made up".  There is no requirement for in service "treatment", but rather an in service "event".  There is a difference.  The Caluza elements makes the requirements clear.  

3.  Nexus, or medical link between 1 and 2, above.  

     VA does this all the time.  In my case they said it had been "too long" since military service.  Do you see "length of time since service" as one of the criteria?  No.  The VA has to rate on criteria, and the BVA and courts are required to enforce the Caluza elements for service connection.  

     This said, I did not read your file.  Is your nexus solid?  I dont know.  There are criteria for a valid nexus, too, and I dont know if you met that criteria.  

     The VA can not deny you because of "non criteria".  That is, they can not deny you because you have blue hair.  This is not one of the criteria.  That does not mean that they wont try, it means that the BVA/CAVC will stop this rinkus dinkus, but only if you timely  appeal and call em out on it.   

This sounds good. I think I'll win because I didn't have sinusitis before entering the service. The doctor saw my treatment record when I self reported sinusitis and was given medication for allergies/sinus problems. I had more than one record where I wrote down I was taking medication for allergies/sinus problems. Before I ever filed the claim I did my homework and made sure I got all the things I needed for the claim. That's why I didn't understand how they could deny me. The doctor at the C&P exam said it was more likely than not my sinusitis was caused during basic training. I read his C&P exam.