Quoting Va Law

[Bigdawg678]

When filing a claim, would you suggest quoting VA law and submitting similar BVA cases to your disability you are claiming. Such as medical rational?

[broncovet]

Well, yes its okay to cite regulations which support your arguement, but it is a bit redundandt since VA is supossed to both know and follow its own regulations.  

Im not sure its necessary however, to cite BVA cases, to include "medical rationale", as medical rationale is Veteran specific.  

In other words because a doctor opined, for example, that YOUR sleep apnea was related to YOUR PTSD, it does not mean that MY sleep apnea is related to my depression.  Here is what I would suggest instead:

Diagnosis:   The Veteran was diagnosed with the disorder xxxx on May 18, 2004 in an exam by Dr. P.  (Enclosed).

In service event:  The Veteran experienced an in service event on June 4, 2003.  (service records documenting in service event attached)

Nexus:   Dr. z, in an exam dated May 19, 2006 stated, "The VEterans condition is at least as likely as not related to service".  May 19, 2006 exam enclosed.  

This completes the Caluza elements required for Service connection of xxxx condition.  

[Richard1954]

There really isn't any cut rules on how to submit a claim except now you must do it with the correct forms. I have cited va regulations in some of my claims,  I do this so that the reviewer knows that I know what I am talking about... to me  it alerts  the rater  that I am not stupid and they better do their best work. I sometimes have also included many articles concerning the condition that I am claiming,  I want the raters to have the facts in front of them about the condition and yes they  are supposed to read and accept them as evidence even if they don't agree with the articles they have to list them as evidence.

In certain cases I have also cited BVA cases to make a point, for instance the VA almost never awards a separate rating for sleep apnea if the veteran in question has already been rated for asthma, COPD  or some other respiratory case. (This is because of special rules for respiratory diseases which I won't go into here) However there are some cases listed on the BVA cite that show separate ratings for asthma and sleep apnea  and while the va won't admit it at the local level,  asthma and , COPD have different symptoms and causes for the diseases and they do overlap,  sleep apnea, symptoms and reasons for sleep apnea do not overlap with asthma or Copd or that matter any respiratory disease. Sleep apnea is classified as a sleep disorder by anyone but the VA.    If course I am talking about citing cases that are similar in scope to the case you have filed.   It just wouldn't do you any good to cite cases that do not appear to mirror the case you are presenting.

So as you can see it depends on the case being filed and how you want to present the case. 

Of course your still want to show a nexus, a doctors diagnoses with a current disability and if possible and independent medical opinion , not to be confused with an independent medical examination.  You want such an opinion to state it is as likely or not,  or it is more likely than not  that a condition is intertwined to your military service  and  with reasoned and acceptable medical references.

[Bigdawg678]

Thanks for the response. 

 

[Berta]

BVA cases are not precedent cases...I actually saw that point made at the bottom of a decision I read this AM.

However I used a BVA statement in a decision rendered moot by the BVA because I had already won the claim at the RO level and did not know I had to withdraw my appeal.Actually it was so lomg ago, I think I had a POA then and they were the ones who should have withdrawn the appeal.

The statement I used was a legal statement. My RO refused to consider it.It was regarding an offset refund under the FTCA.

When I called the OGC, they ordered the VA to pay me the refund.It was a very unusual situation and I have never seen a refund of an FTCA offset since.

Still, the BVA's statement was a legal statement, they should have honored it.

A BVA case might seem to look exactly like your claim and the BVA decision might be want you also want but the fact is each claim is different because it is unique to the veteran filing it.

But I sure agree with Richard above-

He said:

"  I do this so that the reviewer knows that I know what I am talking about... to me  it alerts  the rater  that I am not stupid and they better do their best work." It also gives us confidence in the outcome of the claim.

I never have filed a claim that I felt I could not win- based on my evidence and applicable VA case law.

That does not mean I didn't get many denials, however. And those denials were all due to ignoring my probative evidence. My whole C file is under a review due to an audit error I believe they made.

I clearly stated why the audit was wrong and used the historic rates charts etc to tell them why. I also reminded them that they had made monetary errors in the past to include the FTCA offset situation, to the tune of over 98, 000,000, and I sent them that specific older audit that showed the large payments they had to make, supported by evidence in my C file ,and I stated  it was "as  likely as not" they buggered the "estimated "audit I have questioned them about.  All I can do now is await the outcome and it is all with a VSO at my RO AOJ.And I pray he/she knows how to read, and that someone there can add, subtract, and multiply.They do have computers to calculate awards etc, but it takes a human to feed the calculator the info it needs.

The smallest financial error they made was due to an audit the RC ordered.They sent a payment but I checked it over against the rate charts and found they had forgotten an entire year of DIC.I sent my hand written math calculations to them,with a very brief letter responding to the amount they sent that was wrong. That was fixed right away.

I guess I got off topic here but question- my AO IHD death Nehmer award covered 2 CUEs they had, and the AO IHD payment.

The Nehmer decision said I could expect an "estimated amount of "....I  forget how much. ???

Did anyone else here get an "estimated amount "of retro under Nehmer 2010?

If so did you check the ausit they sent with it?