Appeal To The Board

[Chris Barnes]

Just received my third turn down from VA.  They say I can appeal to the board.  The reason for turn down is because “Not enough evidence to show service connection.”  They have records of me having physical therapy and sick calls for my back.  Isn’t any evidence some evidence?  Have people had good results from, “Appealing To The  Board?”

[Chris Barnes]

2 hours ago, LightofSolitude said:

In order to receive a grant of the benefit sought after a denial, you must first understand why the VA denied you. You must also understand the facts of your own claim. Observe the following two quotes below from your decision letter dated April 21^st 2020:

 

1. “To establish direct service connection for a claimed disorder, objective evidence must show a diagnosis of a current disability that is related to a disease or injury incurred in or aggravated during “active” service;”

 

2. “Veteran was in a motor vehicle accident 11/90 prior to his active duty and was treated during his active duty with physical therapy.”

 

Your medical records state that your car accident occurred on November 27^th 1990. Your active duty activation started on November 30^th 1990 just three days after. This means that your car accident occurred when you were in a “Title 32 status” with the Army National Guard, not “Title 10” which is federal active duty. Therefore, the VA is correct in saying that your injury did not have its “onset” in “active service.” If you were on orders traveling to / from a duty station (which you would have received travel reimbursement for by the government) then your accident would have been “covered under Title 10 federal orders.”

 

However, there is still an avenue for service connection and that is “service connection by aggravation.” After reading your records, I have found that the VA has violated two specific regulations in your claim. These violations are as follows:

 

38 CFR 4.6     “Evaluation of Evidence”

 

38 CFR 3.306 “Presumption of Aggravation”

 

Based on the records that you posted, I have found “four very important facts in your claim.” These are as follows:

 

A. Line of Duty Determination: Your “Chronological Record of Medical Care” or Standard Form 600 is your proof of an “in-service event / injury” for purposes of “aggravation” (This is your second element for service connection)

 

B. Referral to Physical Therapy: Demonstrates that an increase in disability occurred while on active duty

 

C. Sick call notations in service: Also aid in demonstrating that an increase in disability occurred in service

 

D. Buddy Statement: The fact that your buddy was with you while in physical therapy at the same location adds "probative value" to your claim

 

In my humble opinion, the negative VA medical opinion of record did not adequately consider the “degree of aggravation” of your disability. In order to rebut the “Presumption of Soundness” the VA must show by clear and unmistakable evidence that your condition was not incurred in active service AND was not “aggravated” during active service. The latter portion here is where you have highly probative federal evidence that demonstrates you having a meritorious claim.

 

Here is what I would recommend that you do:

 

1. File an HLR “High Level Review” (you cannot submit any new evidence with this option) and specifically point out the facts and evidence that VA overlooked (blatantly ignored) in your claim, which I have posted above for you. This is of course assuming the VA already has everything you have posted in this thread in your C-File.

 

Here is the form that you need: https://www.vba.va.gov/pubs/forms/VBA-20-0996-ARE.pdf

 

2. Obtain an expert medical opinion to rebut the negative opinion on record by VA. Take all the evidence that you have posted here (and more if applicable) and present it to a specialist in the field for which you are applying for disability (see an orthopedic surgeon, rheumatologist, neurologist, etc.)

 

If the HLR is denied, file a formal appeal with the BVA and then supplement your record with a positive medical opinion as suggested above. Going to the BVA without a positive medical opinion on record is like going to war without a weapon. I believe that this claim can be won at the Regional Office level; you just have to present it in the correct way. Make sure to cross all your T’s and dot all your I’s because the VA will never do this for you.

 

Don’t give up. Please continue to keep us posted. We are here to help!

I posted a thank you and I think it didn’t go through.

I want to thank each one of you for the help you are giving me.  It’s all overwhelming information.  I don’t understand why the VA makes it so hard.  I’ve read multiple accounts of people trying to get VA to make an approval.  I will keep y’all informed on what happens and I hope I can help any other veteran in the future.

Hell SSN disability wasn’t near the headache as this is.

 

[kanewnut]

2 hours ago, Chris Barnes said:

Hell SSN disability wasn’t near the headache as this is

100% agree! But don't give up, you'll get there.

[Buck52]

 

@ pacmanx1

I was going through my CD C-FILE and found some old Dr's medical notes I can't read  from sick call  from Jan 1970.while station in Germany 517th heavy Equip To Tompkins Barracks Military Base · Schwetzingen, Germany

 just about 12 clinks north of Heidelberg Germany  I must have recovered & Feb 4th of that same year I was in Vietnam.

Anyway on these medical notes from sick call from my Germany duty

  I seen my Temp was 101 % and Dr request off duty 3 days. bed rest and some of the other medical notes I can't make them out  looks like chicken scratch...and I have two blank sheets that are blank but has the VA date seal stamp  stamped about the lower part of the page...I got a feeling these are the records I need..but being blank  no chance they can use them.?

Yes GB Army, I Agree with ya great information from  LightOfSolitude & pacmanx1

Edited May 18, 2020 by Buck52

[pacmanx1]

Chris, unfortunately some veterans in order to win their benefits some veterans have to file appeals to BVA and or CVAC. If you truly want your benefits, you may have to fight for them. Long story short, VA denied one of my claims and after reopening the claim, VA and BVA denied my claim but when my claim went to CVAC it was remanded and then BVA granted it. All that took a little over twenty years but I did win. I had a lawyer at CVAC but I won the rest on my own, still waiting on that retro though. 

Buck, getting good legible copies from a CD maybe impossible. It's really sad that VA employees don't take pride in their work and be willing to do a good job for veterans. Some original forms need special treatment to copy like placing a black sheet of paper behind the original form to get a clearer copy of what is written on the page or placing a colored transparency page in front of the form to be copied to get a clearer copy. I have used green, blue, red, yellow, pink and even a clear transparency page to bring out the writing on a page but that was my job at the time.  Like I said without having the original page it may be impossible to find out what was actually on those pages.     

[Chris Barnes]

Update:

VA in my town finally opened back up and I had an appointment today.  Absolutely no help.  I knew more from learning things from you guys than the guy I talked to.  He is apparently just a “Filler out of basic forms” person.  Only been on the job for six months and two of them he was off because of the virus.  Soooo frustrating!  I can’t believe the VA makes things so tough.

 

 

[Fat]

OK, my two cents.

1. In service event/incident of lower back pain.

2. Current diagnosis ?????

  a. MRI confirmation

  b. CT Scan

3. Continuous treatment ?????

   a. Chronicity

4. Nexus Statement

 

The breakdown has occurred probably with a firm Nexus statement.

 However; sometimes the regional office simply just misses evidence.

I would visit a good orthopedic specialist for backs.

I would take all relevant medical records related to my back.

I would ask for a comphrehensive evaluation and for him to opinion the possibility of my initial complaints in the military in relation to my current diagnosis.

 

He doesn't have to be 100% sure, just rationalize the possibility of correlation in based on medical evidence

I don't think its a stretch an injury occurred in the service has manifested to a disabling point.

A Orthopedic Back Doctor will be the best opinion on such matters.