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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Confused - Appeal to BVA or Higher Level Review EED


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Hello Vets. Long time reader, first time posting. I hope I can get some advice on my situation as many of you have helped me over the years without even knowing. Thank you!

History - I submitted a claim January 19, 2016 for Increase to SC Ankylosing Spondylitis (Thoracolumbar) Rated at 20%, New Claim - Hip Pain secondary to Ankylosing Spondylitis and Leg Pain secondary ankylosing spondylitis. C&P March 11, 2016, Decision March 24, 2016. No increase for AS (20%) and denied for all secondary claims

Filed NOD February 03, 2017

Opted in to RAMP July 27, 2018 with the RAMP Claim Nov, 25, 2018. C&P January 30, 2019, Decision March 8, 2019. Granted 50% Unfavorable Thoracolumbar Spine, 10% Right Hip, 10% Left Hip secondary to Ankylosing, denied leg / knee pain. My EED of January 30, 2019, not what I was expecting

Present - I was going over my C&P exams trying to understand why my EED wasn't January 19, 2016, since that is when I put in the original claim. I also wanted to know what was the difference between the March 11, 2016 exam and the January 30th, 2019 exam that got me the increase for my Thoracolumbar and both Hips being rated since they used the same XRAYS and MRI in both exams.

Well I noticed that on the March 11, 2016 exam the examiner answered:

 9. Ankylosis    -----------    Is there ankylosis of the spine? [X] Yes   [ ] No       [X] Favorable ankylosis of the entire thoracolumbar spine

This is from the January 30th, 2019 exam and I was awarded 50%

 9. Ankylosis    -----------    Is there ankylosis of the spine? [X] Yes   [ ] No       [X] Unfavorable ankylosis of the entire thoracolumbar spine

It seems like they should have at the very least increased my SC Ankylosing Spondylitis to 40% from 20% on the March 24, 2016 decision based on the spine ratings. But they didn't give me an increase.

So I wasn't sure what to do and took this information to my County Veteran service organization and they put in an NOD BVA appeal. When I didn't see my appeal showing up on VA.GOV I called them and they said they gave my appeal form  my POA VFW, ok so I call the VFW and they confirm they submitted it, fine.

My BVA appeal shows up and I had a question about it so I called my VSO at the VFW and ask my question and then say: "Oh you don't want a BVA appeal for this, we need to cancel this appeal and put in for a Higher Review request"

This is where I'm at two weeks ago they had me sign a form VA FORM 21-4138 canceling my BVA appeal and submitted VA FORM 20-0996 Decision Review Request: Higher Level Review.

I'm so confused if this was the right approach. Any advice would be much appreciated. If you all think I should post my decision letters to really help, I can do that as well.

Here are the spine ratings:

Rating

Cervical Spine

Thoracolumbar Spine

100%

Entire spine frozen in an unfavorable

 position.

 

50%

 

Entire thoracolumbar spine frozen in an unfavorable

position.

40%

Entire cervical spine frozen in an unfavorable

 position.

Flexion measures 30° or less. 

-OR- 

Entire thoracolumbar spine frozen in a favorable

position.

30%

Flexion measures 15° or less.

-OR-

Entire cervical spine is frozen in a favorable

 position.

 

20%

Flexion measures more than 15° but not more than 30°.

-OR-

Combined ROM is 170° or less.

Flexion measures more than 30° but not more than 60°.

-OR-

Combined ROM is 120° or less.

10%

Flexion measures more than 30° but less than 45°.

-OR-

Combined ROM is between 175° and 340°.

Flexion measures more than 60° but less than 90°.

-OR-

Combined ROM is between 125° and 240°.

0%

Flexion measure 45° or more.

-OR-

Combined ROM measures 340° or more.

Flexion measures 90° or more.

-OR-

Combined ROM measures 240° or more.

 

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Your effective date is the later of the "facts found" (this means the date the doc said you became disabled), or the date of claim, with some exceptions.  

The only time I suggest filing a "higher level review" request, is WHEN YOU ARE CERTAIN VA HAS ALL YOUR EVIDENCE.   Otherwise, opt for the alternative, supplemental claim lane.  Mostly we dont know what evidence the VA has.  Even if we got a copy of our claims file last week, we dont know what "new" evidence just arrived.  Your evidence can be checked in real time with a VBMS review.  Vets dont have this access, only attorneys and accredited representivives have access to the Veterans VBMS file, and only then if the representative jumps through the Va hoops to obtain access.  

I concur that it appears you have sufficient evidence as of your c and p exam, however, I dont know if Va has that c and p exam in their possession.  

Do you know if your VSO has VBMS access??  Did your representative review your file to ensure all the evidence was there?  Otherwise, you should always opt for supplemental claim lane and not HLR.  

If you got your information from ebenefits or Va.gov, then you may or may not have accurate information.  Your decision letter from Va should be accurate, tho.  

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Thank you broncovet for your reply.  My VSO does have VBMS access. I know this because after I brought up the issues with the first C&P  exam compared to the second C&P exam, she pulled up that exam and found where the examiner marked: Ankylosis  and check Favorable. 

Since they submitted a Higher Level Review and had me cancel the BVA claim I believe the evidence is in the file, other wise I don't understand why they would have choose that lane since it seems like that lane is not one that should be picked based on your answer. 

I believe I did see where I can still submit a supplemental claim lane if I get denied from the Higher Level Review lane. Just frustrating since I feel I was given the wrong advice. 

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15 hours ago, BAM_ said:

other wise I don't understand why they would have choose that lane since it seems like that lane is not one that should be picked based on your answer. 

just an opinion here and my own recent experience with my VSO which is the American Legion and I was at the VARO building where they have an office.

The woman literally stated "...we work for the VA..." as she was trying to dissuade me from filing an Appeal and from asking for records of my latest C&P's, DBQs, Code Sheet, Letters to and from the VA/C&P provider and Dr's notes.

this has been an on-going war with VA and my VSO over this.

If you want to add or be able to add, new information go Supplemental Lane. If you think the VA has all your evidence the HLR would be faster but their denial rate is huge, so it is basically the dog wagging the tail for many vets.

 

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GeekySquid that is a scary statement "we work for the VA..."

I think I'm going call and try to talk with the VSO at the VFW Monday to see if I can get a better feel for what their strategy is, at the same time I think I may need to take more control, just not sure how at this point.

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2 hours ago, BAM_ said:

that is a scary statement

you might imagine trying to control my shock and immediate outrage that the person with my POA said that to me.

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