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?”

[kanewnut]

3 hours ago, Chris Barnes said:

The hand written are from sick calls where I went in for my back during service.

IMO you might want to type up what those hand written notes are saying. They can be a little difficult to read. I have a similar situation from when I was in. Mine are pretty hard to read. I have been working on typing up what they say that is important for my case. That might help the raters with seeing that your issue began in service. 

[Buck52]

Chris Barns

You need to head over to the BVA if you don't choose the DRO Hearing at your R.O.?

My advise either way you choose to go HRL OR THE hearing or BVA

You need to go get you a IMO/IME from a specialist to examine you and read those records you put on here, the myhealthvet notes  and the notes from sick call you can use all of those for evidence....why they never consider them is anyone's guess?

but on this IMO you need to tell the Dr what you need  he needs to read your medical records and also those from Myhealthvet  but those in service medical records are crucial as for as getting service connected..but they will not take a veterans word on it although the records do show you had an in service event that caused your medical problems today   the IMO Specialist needs to give is medical opinion as to ''I have examine this Veteran and read his medical records and medical notes from the military while he was on Active Duty.''..he needs to word it carefully  and say something like this ot to the tune of it

''I have examine this veteran and read his medical records  and it it my professional opinion it is likely as not his  injury to his Back IS CAUSED BY OR related to his military service ''.(name what happen?)

he needs to go in more detail about it medically  and just how bad your condition is?  and what you may need in the future for your Back problems..ect,,,ect,,,  with your medical notes and records you have   if you presented this all of these as your evidence when you filed your claim? and was denied they may have committed CUE   Because they look to me like that is a good cause for service connection  and  they never did that.

    Even if it was service connected at 0% Thats a good start  because once you prove service connection  its just a matter of increase as you go see different Dr's for your condition  and ask the Dr's to give their medical opinion as to how bad your injusty are..look up the rating criteria for what your claiming and use that CFR  # Regulation that show  what you need to be fairly rated.

I am not sure what the criteria for your Back injust are but you can look it up  for the type if injury you have and what your medical records reflect...  if you been denied more than 2 times for this   you just might have a CUE.

You need a good IMO from a Specialist in this Field of Medicine  that  is the main thing you need.

(JMO)

Edited May 17, 2020 by Buck52

[pacmanx1]

Chris, Buck, Kanewnut, and any veteran that have service medical records or any medical documents that are hard to read, I suggest that instead of trying to type or explain the meaning of those records/documents is to take these records/documents to a doctor, lawyer or a medical records/document transcriber and have them to transcribe them and certify them as true transcribed copies and then notarize them.  It seems most doctors write like chickens scratch and records transcribers have to put their scratches into English.  According to VA, these records/documents are considered legal medical documents and should not be altered in any way but they can be transcribed and place in your VA folder as transcribed legal copies.  Just a thought and trying to help.  Many years ago, I found out that I had several Meritorious awards left off my DD 214 and I had to have my records amended to reflect them and after waiting about a year or so, I finally got my DD 215 with my awards.

[GBArmy]

Good advise from Pacmanx1. Interurpretation of medical records/documents are not something a veteran is qualified to do in the eyes of the VA. So, you get another medical expert review and submit their opinion of that data. It's like an IMO of someone else's IMO if you want to think that way. I don't know if you have to notarize it, but it is cheap enough or free from a lot of sources. Then you submit as additional evidence. It is an extra step, but if your in service records are critical to proving s-c, do it.

[LightofSolitude]

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!

[GBArmy]

Grear advise from LightOfSolitude Fair chance of winning at BVA; not so sure about HLR though. IMHO, the VRO isn't going to agree because he has enough "gray" areas to justify confirming the denial. I hope I'm wrong, however.