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Using a VA appeals court case as further evidence for claim review

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jh8232

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I've filed a claim for my kidney condition and have gotten it service connected, but not at the rate I feel it should be.  I have researched VA appeals cases on the VA website and have come across a case very similar to mine where the Veteran received the rating that I feel I should be at.  My test results are actually worse than the Veteran's, but they gave him his rating based on one word, "lethargy." 

Now, I've suffered from fatigue (similar to lethargy) from my condition for the last eight years and have it well documented in my records, but not the word "lethargy."  So, I had my nephrologist write a letter stating that I suffer from lethargy and submitted my claim to be reviewed again, but to no avail.  Like I said, I not only do I match a the Veteran's complaints, I exceed them but was assigned a lower rating. 

My question is has anyone ever submitted a VA appeals court case decision as evidence when requestig a senior level reviewer? 

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To receive a disability from the VA, you need to have 3 elements. First is a current medically diagnosed  condition that can be rated, The second is an injury or disease while you were in the service that is the same or closely related to your current condition and then what i called a nexus, or connection between the two. It is likely that your nexus wasn't strong enough. That is your doctor's opinion in his letter didn't use the magic VA words  "it is more likely than not", " or "it is as likely as not"., or "your in-service injury did cause your current disability. With out seeing your doc letter, that is my guess as to why you were denied.

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22 minutes ago, jh8232 said:

My question is has anyone ever submitted a VA appeals court case decision as evidence when requestig a senior level reviewer? 

To answer your question. Yes, I have cited many BVA  case for various claims...but  claims granted at the BVA do not set precedence  as such they hold little weight if any at all.

What you need is a Doctor to write a Strong  Medical Opinion that is  justified...its not enough to use key words, but to go beyond them....   

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1 hour ago, jh8232 said:

My question is has anyone ever submitted a VA appeals court case decision as evidence when requestig a senior level reviewer? 

@Richard1954 is mostly correct. Single Judge decisions are not precedent setting.  Panel Decisions, though rare, are precedent setting.

Now on to reality. You can cite any damn thing you want in your appeal. It just needs to be relevant and on point. Throw in a bunch of irrelevant stuff and they will deny you out of boredom.

As Richard said, a strong medical opinion is your best friend.

I am kind of a nerd so I would pull up a Thesaurus and cite Lethargy Synonyms that appear in my medical Records.

I would also do a deep-dive into the DBQ and the appropriate statute and identify the keywords they list. I would also make a point that your medical records DON"T have to have word for word diagnosis to match what the DBQ or Law says.

There are analogous conditions and that means various words are KNOWN to mean the same thing. various conditions are essentially the same thing. not everything can be listed so analogies are okay.

The entire PDR is incorporated into the law by reference.

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Well, it was a rather lengthy letter that was written that happened to include the terminology.  He stated the disease, when it started, how it affects me now, etc.  Also, in the BVA case they used lay statements provided by the Veteran himself as basis for the decision.  I just figured that the doctor's letter would be more than enough compared to that case.  I've also stated the fatigue to every other doctor that I see, which is quite a few.  The citation # for the case is 18112751. 

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My opinion is you LOOK at the BVA case, but then "cite" the precedential CAVC/Federal cases that the BVA case sites.  Its the best of both worlds..you back up your case with precedential decisions, but you get them from the Board case(s).  

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I have looked up synonyms for lethargy online and found that fatigue is definitely one of them, which is stated dozens of times in my records, dating back to December 2010, when my kidney condition was discovered.  Just look up fatigue and the first word listed is lethargy. 

 

Quote from 38 cfr " §4.115a  Ratings of the genitourinary system—dysfunctions - or, generalized poor health characterized by

lethargy, weakness, anorexia, weight loss, or limitation of exertion"

Quote from BVA - "The Board is affording the Veteran the benefit of the doubt that he now suffers from lethargy as his NOD and his December 2016 VA examination report both document that symptoms.  Based on his symptoms of lethargy, the Board finds that the Veteran is entitled to an 80 percent rating, effective the date of the NOD which alleged symptoms which approximate the requirements of that level."

Quote from Doctor Letter - "Patient has stage 3B chronic kidney disease and anemia.  Both of these conditions can cause chronic fatigue/tiredness/lethargy, which the patient has reported to me and other providers."

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