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VA "bogus reasons for denial"


broncovet
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PLEASE POST your "bogus reasons for denial" to help other Vets, who often get similar bogus reasons.  Im gonna post at least 3 of mine, please also post yours.  If you have "overcame" your bogus denial, please give the method in which you did this, if possible.  

Bogus denial number 1.  Year 2002.  Hearing loss was denied because "it was too long since military service".  Its bogus because "time since military service is not one of the criteria, and VA has to rate on the published criteria.  An appeal to the BVA reversed this denial.  

Bogus denial number 2.  Year 2009.  "TDIU is moot".  Bogus.  I also appealed to the BVA arguing TDIU was "not moot" because:

a)  It could result in an earlier effective date, if awarded.

b)  Bradley vs Peake allows tdiu to be one of the "100 percent" in 100 plus 60 statuatory SMC S.  

I appealed to the BVA using the reasons, above.  The Board agreed with me and specifically stated, "Tdiu is not moot" and ordered consideration under 38 cfr 4.16B (Tdiu when the percentages in 4.16a are not met).

 

Bogus denial number 3:  Year 2020  SMC L was denied because my symptoms "did not present a COMPLETE need for A and A".  Bogus.  Read 38 CFR 3.352 which states:

https://www.law.cornell.edu/cfr/text/38/3.352

Quote

......It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. 

Because of this sentence, above, I do not have to have "ALL" the A and A symptoms for a favorable rating.  I dont need to have a "complete" need, the denial contradicts the regulations.  

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The VA's favorite reason for denial of service connection for a lot of my claims is: " No diagnosis of the condition was found in service medical records".

A diagnosis of a condition in service is NOT a legal requirement to establish service connection.

This rationale will NOT prevail.

 

I had to overcome this hurdle by obtaining independent medical examinations from private medical professionals that opine that the symptoms found in my service medical

record  "at least as likely as not"  established the onset in service of a current diagnosed medical condition.

 

Edited by 63Charlie
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The VA does not even use their rating criteria correctly.

For example, the NP who did my C&P exam stated that my migraines are not chronic in nature - meaning I do not have 15 migraines or more per month. But yet my SMRs and VA treatment records specifically state I have between 5-7 prostrating migraines per month (going on for 7 years) that can last between 1-3 days, which is the criteria for rating migraines.

The rater used the same rationale by the NP in denying service-connection for my migraines and did not even mention the IMO from a board-certified specialist. I am pretty close of doing a CUE myself but worried of how it will affect the relationship with my attorney.

I am no fool to know that my claim is a slam dunk (law firm paid for the IME w/IMO), and understand it is in my attorney’s best interest to drag it out as long as he can for a bigger cut of the retro pay.

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I had my claim for aggravated pes planus denied because the examine opined that I did not seek medical treatment enough times for my foot problems while on active duty.  My entrance exam showed that I had flexible pes planus but it was asymptomatic at the time and it worsened during my time on active duty. There is no requirement that a person in the military need to seek treatment for a disability for a certain number of time for it to be service connected.  It was clearly in my SMRs that I sought treatment and was given shoe inserts and Motrin.  I asked for a de Novo review and it was overturned by a DRO.  

 

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