Claims Evidence

[Ricky]

"The Board has thoroughly reviewed all the evidence in the

veteran's claim folders. Although the Board has an

obligation to provide reasons and bases supporting this

decision, there is no need to discuss, in detail, all of the

evidence submitted by the veteran or on her behalf. See

Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)

(the Board must review the entire record, but does not have

to discuss each piece of evidence). The analysis below

focuses on the most salient and relevant evidence and on what

this evidence shows, or fails to show, on the claims. The

veteran must not assume that the Board has overlooked pieces

of evidence that are not explicitly discussed herein. See

Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law

requires only that the Board address its reasons for

rejecting evidence favorable to the veteran)."

I have searched high and low for both the Timberlake case and where the law requires only that the board address its reasons for rejecting evidence favorable to the veteran. Does anyone have any ideas? Also when it says the "Board" does that mean the VARO also? I think I read on Hadit before that a reference to the board also means VARO.

Thanks

[john999]

Ricky

The fact that the VA did not give reasons and basis for denying or accepting the conditions as service connected is appealable. The VA is supposed to give you reasons for what they do and not just ignore medical evidence or opinions. They really cheat on the effective dates.

[Objee]

Ricky,

Clearly the VA's flipping you the bird. I'll certainly defer to Berta's analysis of this, but it appears that you (and the rest of us) are in the delay and deny trap including the new "deemed denied" situation.

The decision letter is supposed to set forth the facts in evidence (even if the RVSR obviously didn't look at these facts.) My first decision letter was written in the same way as yours to give 10%. The evidence justified 60%. No matter, 60% wasn't going to happen on the first go-'round.

My NOD offered new "countering" evidence and summarized the facts already in evidence saying this existing evidence was also required to adjudicate the claim. The rules from the warms website were stated and basically, I adjudicated my claim myself in the NOD. Might have worked - I'll know in a month or so.

These decisions are a really frustrating SOB since they're so obviously phony. You could send a letter to the VARO before a NOD simply saying "I don't understand the entry that 'there was no active process present during the recent exam.' Please explain what you mean by 'active process'. I can't find any referral to this term in any medical dictionary." And see what happens. IOW, grind them a bit and see what they respond with. Then NOD for a de novo DRO review with a face-to-face with the DRO.

Ralph

Berta, my question centers around a SOC that was issued to me. In the claim, the C&P supported the claim along with IMO's. There was no negative evidence available in the claims file. However, the claim was denied and when the SOC was issued they simply stated "there was no active process present during the recent exam." There was no discussion of any evidence what so ever. In effect the SOC provided no basis for my appeal. In other words the only viable attack for the appeal was the fact that I did not have any ideal why the claim was denied. The claim was on my Jan 2005 stroke (CFR 38 provides a 100 percent rating for six months following a stroke). The C&P was in July 2005 so yep there would be "no active process" in July 05 since most strokes last somewhere between a few mins to a couple of hours. The way the SOC was written the rater wanted to see evidence of the stroke still occurring which would have been impossible. Evidence submitted was the MRI with the reading, IMO's from my neurologist' and treating Doc. The C&P started out "a review of the medical evidence provides that in Jan 2005 the patient suffered a right sided stroke within the thalamus". They service connected the stroke secondary to my DMII and hypertension but only rated it as 10 percent and not the required 100 percent for six months. The 10 percent was based on my residuals. Even this was not rated appropriately as the residuals effect my left face, left upper and left lower extermities. The C&P provided that they existed but did not discuss their level or effect on me. I have two IMO's from treating and secondary Neurologist they have caused loss of taste, loss of use of foot and hand coupled with constant level ten type pain. So not only did they rate the residuals low, they did not even properly rate them as they should have rated the face, upper and lower seperately. Anyway the problem is that the rating nor the SOC contained any discussion of the positive evidence in the file and why it was not accepted, nor did it discuss any evidence held by the VA that was negative to the rating. Thanks

[Berta]

"I have two IMO's from treating and secondary Neurologist they have caused loss of taste, loss of use of foot and hand coupled with constant level ten type pain. So not only did they rate the residuals low, they did not even properly rate them as they should have rated the face, upper and lower seperately. Anyway the problem is that the rating nor the SOC contained any discussion of the positive evidence in the file and why it was not accepted, nor did it discuss any evidence held by the VA that was negative to the rating. Thanks"

Ricky- did these IMOs state that for the 6 months after the stroke you were totally and permanently disabled by it?

This BVA case supports exactly what you said:

http://www.va.gov/vetapp04/files3/0421594.txt

"Also, the RO assigned an initial 10 percent rating for the

residuals of a cerebral vascular accident with hemorrhage

evaluated under 38 C.F.R. § 4.124a, DC 8009 (2003). This

rating code states that the vascular conditions are to be

evaluated as 100 percent disabling for six months.

Thereafter, the residuals are to be evaluated, with a minimum

evaluation of 10 percent disabling.

Since the veteran has contended that his heart disorder and

residuals of the cerebrovascular accident warrant higher

initial evaluations, the RO must consider whether ratings can

be assigned for separate periods of time based on the facts

found - a practice known as "staged" ratings. See Fenderson

v. West, 12 Vet. App. 119 (1999). "

The case was remanded because:

"As noted above, the veteran seeks a higher initial rating for

residuals of his service-connected cerebrovascular accident.

In his September 2002 substantive appeal (VA Form 9), the

veteran reported having "very serious residuals" of his

cerebral vascular accident that included chronic headaches,

dizziness, memory loss, impaired speech, and constant

fatigue. The Board notes that there is no citation to

diagnostic codes relating to residual impairment (eg.

Diagnostic Codes 8045-8207). In this case, a VA examination

is necessary to determine the nature and severity of any

residuals of his service-connected cerebrovascular accident

residuals. "

I assume you definitely appealed this decision-stating the appeal the way you did here.

Which makes complete sense-

I think you meant DC 8009?

"However, the SOC simply stated "denial continued due to the lack of an active process or disease". The only assumption that could be made is that they wanted me to be having an active stroke during the C&P" yeah and then give you the C & P date for the EED!

You are right on the residuals too---

This is as bad as some DMII claims I have seen where they give the EED as the date of C & P -probably because they possibly misdiagnosed the vet prior to that-

I had a local vet they pulled this and I prepared a Section 1151 claim for him- as they were saying-in essense-that he got diabetes at the C & P exam- then meantime they did give him the proper diabetes EED on the NOD we sent.

I wonder if he sent the 1151 in or not- forget-maybe it is still pending???

Of course this was a frivoulous claim- but when the VA makes ridiculous statements, they deserve to be called on it.

Edited January 29, 2007 by Berta

[Ricky]

Berta - thanks for the post as I have done many searches on CVA and never found one that is close to mine like this one is. All that I have seen is where the vet had a stroke several years ago and is now claiming disabilities due to the residuals of the stroke.

To answer your questions - no the IMO's did not state that I was totally disabled. As CFR 38 reads there is no need for such a statement. The disability codes that cover CVA's simply states "rate at 100 percent for six months, then rate residuals." There is no requirement for any other ancillary disabilities during that six months and no requirement for this "active process" that VA sited in the rating and SOC. My claim that was submitted asked for SC for the stroke secondary to DMII and Hypertension, with an initial rating for 100 percent for six months - and since the residuals of the centeral nerve damage had occured and was present {Dejerine-Roussy Syndorme-thalamic pain syndrome, central pain syndrome} it asked for SC for it secondary to the stroke. Their rating provided only approval for "residuals of stroke-Dejerine-Roussy Syndrome". It totally ingored my claim for the initial rating of 100 percent.

Since the assumption of me and the doctors was that they were referring to the time line of the stroke and expected to see some type of "cva process" during the C&P process and wanted the C&P doctor to state "yep he is having a stroke now" the IMO's especially the one from the hospital radiologist, who is a 24 year board certified guy" centered in on the process of stroke and his MRI report. When I first had the stroke I had several CT scans, which were negative, and many other tests. The MRI was conducted 3 days after my symptoms began. In his MRI report he diagnosed "a sub-acute right-sided thalamic infarct. He provided an excellent discussion- He started out with "in order to understand and use information provided by a medical doctor, one must be familiar with medical terminology and its use. The term sub-acute in the MRI report for a CVA refers to a CVA accident that occured with days to several weeks within the actual CVA. Mr. H's symptoms first occured on 21 Jan 05 and the MRI was conducted on 23 Jan 05. At the time of the MRI his infarct had completed and was well within the time period of his symptoms. There was no evidence of medical record that indicated that his CVA was chronic (more than six months old). He then provided a very good explaination of the process of a stroke due to a thrombosis.

The Neuro statement provided that "after a personal review of Mr. H's MRI films and a medical examination blah blah blah (neuro guys get long winded) it is my opinion and diagnosis that he suffered a right thalamic infarct (CVA) in Jan 05. As a result of the location of the infarct (the thalamus) he now suffers from severe center nerve damage which has resulted in Dejerine-Roussy syndrome". He went on to fully describe Dejerine-Roussy Syndrome and how it affected my face, hand and foot. He provided that it could resolve within six months or it could get worse and affect other parts of my body. When I filed my NOD in Aug 05 he provided another opinion along with his diagonsis which stated that the Dejerine-Roussy had gotten worse and resulted in the loss of functional use of the left leg and foot and arm and hand. He further stated that based upon current medical blah, blah, blah -and that it was his opinion since it had spread vs resolving during the past six months it was permenate and would not resolve.

All of this has been at the RO since Jan 05 via formal appeal (VA 9). I am going it alone cause of the SO's in this area are not to swift. I am getting ready for my BVA hearing and plan to attack the way the rating and SOC was written (no discussion of evidence) then flow into the violation/application of the regulations used by the RO. Hopefully I will win.

I think it is clear cut but I guess that is because it is my claim. However, when the law and regulations says WHEN X HAPPENS, THEN RATE AT X AMOUNT FOR X AMOUNT OF TIME, THEN RATE RESIDUALS. other areas of the regulation provided that when rating a disability such as CVA etc.... then make sure that all body systems affected are rated seperately. Hell that is pretty clear to this old Alabama redneck guy!!!!!!!

THANKS GUYS

[john999]

One thing to realize when dealing with the VA rating office is that they have no special medical or legal knowledge. If the doctor does not state everything in the simplest terms they will simply ingore it because they do not understand it. If your doc does not say you are 100% or IU then the VA will assume you are not. If your doc does not say a condition is secondary they won't make it secondary. Even in the most obvioius cases you have to spell it out for them in terms a 2nd grader could understand.

[Objee]

One thing to realize when dealing with the VA rating office is that they have no special medical or legal knowledge. If the doctor does not state everything in the simplest terms they will simply ingore it because they do not understand it. If your doc does not say you are 100% or IU then the VA will assume you are not. If your doc does not say a condition is secondary they won't make it secondary. Even in the most obvioius cases you have to spell it out for them in terms a 2nd grader could understand.

Add to what John says the fact that VBA simply can't communicate half the time.

Here's a GAO report from 2002 on the communication problem:

http://www.gao.gov/new.items/d02395.pdf

Ralph