hypertension Up Coming Dro Hearing

[Ricky]

As I prepare for my upcoming hearing which should be in Apr 05 according to IRIS I would just like for someone to give me a quick sanity check on the reason for my argument of EED on a Back Issue:

2002: File claim for back strain.

Feb 2003 SOC issued: Disability SC'ed at 0 % effective 2002.

Feb 2004 - Being the dumb butt that I am I failed to timely file VA 9 (mixed up the one year requirement for a NOD with the 60 day requirement to perfect appeal). So I filed the VA For 9 at this time.

July 2004 - VA sent me a letter saying hey dummy, sorry but the VA 9 was not filed in a timely manner. However, being the good guys that we are, we will use your VA form 9 dated 17 Feburary 2004 as a reopened claim it you want us to.

August 2004 - Sent VA a letter told them that yes I wanted the VA 9 to be used as my request to reopen the claim.

August 2004 -May 2005 - received those stupid "we are working on your claim letters"

May 2005 - Had C&P for increase in rating for hypertension and back strain.

July 2005 - Received strange rating letter. 0% for back strain continued with an effective date of Feb 2004 ( 0% had already been awarded in 2002 so I don't know how or why they changed it).

Aug 2005 Filed NOD

27 January 2006 SOC received - 0% is continued with an effective date of 31 January 2005?????? (Once again they continued the rating but changed the effective date)

30 January 2006 Blue rating form received - It stated that due to a different interpertation of the evidence the disability rating is increased to 10% with an effective date of JANUARY 31 2005????? Now I am really confused. Do I perfect the appeal per the SOC or do I NOD this rating? Well I did both. In Feb 06 I perfected my appeal and included the back rating percentage and the effective date.

In August 2006, after consuming much rum due to the confusion caused by the floating effective date, 0% continued by the SOC and the 10 percent awarded I filed a NOD to their 27 Jan 06 rating. Even though, as stated above, I had already perfected my appeal and included the back issue on the VA 9, I could see the VA just dropping the issue cause the regulation states that I must first file a NOD upon receipt of a rating decision to start the appeal. Hell I don't know casue by now they have me totatly confused. My NOD consisted of (1) based upon evidence (to include the May 2005 C&P) the disability met the requirement for a 20% rating (2) The EED should have been Feb 2004, the date of the reopening of the claim by VA.

Well now they have decided to give me the DRO hearing that I requested. I wanted the hearing cause I do not feel this cluster f#$%^ can be straightened out with only the written word. So at my hearing my arguments will be:

1- increasing the percentage to 20 percent. I will focus on the fact that the C&P in May 05 provides that forward flexion is limited to 45 degrees. The regulations provides disability ratings, as of 2002, for the back that are firm and in black and white. In general it states that if forward flexion is XXX the the rating is YYY. No if's and buts about it. I do not see any need for other IMO's on this one for the C&P verifies the forward flexion. I guess that I could additional IMO's that provide the forward flexion is limited to 45 degrees but 45 degrees is 45 degrees no matter what doctor says it. Now if it was a question of I claimed a greater amount of limitation of motion then I could see getting an IMO but this is not the case. I simply want them to use the evidence their doctor provided.

2 - The EED issue is and will be a ball of confusion to unravel. 0 percent was effective 2002. They officially reopened the claim in Feb 2004. Since the original filing they changed the effective dat twice without any ryhme or reason. Upon increasing the rating they once again reset the effective date to the date the rating decision was issued. Title 38 and CFR 38 provides that the effective date is the date the disability began and is normally the date of receipt of the claim (my interpertation). Its pretty plain to me....Claim was officially reopened effective Feb 2004, no dates were missed, therefore, the Effective date is to be set at Feb 2004. My plan is to present the prevailing law and regulations, and walk the idiot through the time line. Any additional ideals from you guys will be appreciated.

Sorry for the long post.

Edited February 9, 2007 by Ricky

[Ricky]

Wow, I just did a serach on the BVA site for EED and my RO. There were a lot of appeals in this area, however, the first 25 that I opened were either remanded or the vet died waiting on appeal.. Looks like I may have my work cut out for me if I am to win this thing before I die.

[carlie]

Ricky,

If you haven't had your hearing yet ------ I don't think it will happen in April 05 !!!

I'll read your post now to see what it's about. lol

carlie

[Ricky]

Carlie, the Apr 06 date is based upon a reply to an IRIS inquiry that I sent Monday. They said my request for the DRO hearing is set to be place on April 06 calander. However, I agree with you and will not hold my breathe until I get the official notice in writing via snail mail. Being placed on the "April 06 calander" could mean many things. Maybe it is just the time it will scheduled and the april calander could contain hundreds of cases scheduled for hearing.

[Ricky]

oops, I see what you mean now. The date should read April 06 Not April 05!!!!!!!! Brain Fart on my part hahahahahahahaha

Gez.... if I keep going here I am going to have a hundred replies to this post from me to me!!!!

Edited February 9, 2007 by Ricky

[Vike17]

Ricky,

There are a couple of questoins; what date in 2002 did you file for the lower back? What date was the rating decision awarding 0% service-connection. What date in Feb. 2003 was the SOC issued affirming the 0% rating (I assume this is the senario)? Even if you filed the original claim in January 2002, this seems like a really short period of time for the VA to work a claim, issue a rating, have a veteran submit an appeal, and then have VA issue a SOC (only 13 months for the whole thing??). Are you sure you received a SOC and not the actual rating decision in Feb. 2003???

"July 2004 - VA sent me a letter saying hey dummy, sorry but the VA 9 was not filed in a timely manner. However, being the good guys that we are, we will use your VA form 9 dated 17 Feburary 2004 as a reopened claim it you want us to"

With the senario you presented this would be correct on VA's part.

"July 2005 - Received strange rating letter. 0% for back strain continued with an effective date of Feb 2004 ( 0% had already been awarded in 2002 so I don't know how or why they changed it)"

Are you sure the rating didn't say that the 0% is continued at 0% from Feb. 2004"

At any rate, if they said the actual effective date is Feb. 2004 at 0%, this is incorrect as the 0% should be effective the date of the original claim in 2002. However, it's actually a moot point because your 20% would only go back to Feb 2004 (the date you re-opened your claim), and there wouldn't be any further monetary compensation. As far as the 0% evaluation, this would normally be a CUE, unless there was some range of motion measurements in your medical records other than the C&P exam that the RVSR decided was a more accurate assessment of your disability. When and where did the claim for hypertention come in?

If you could clarify the few questions I asked, maybe I can shed some more light on this.

Vike 17

Edited February 9, 2007 by Vike17

[Ricky]

Vike - sorry but as you can see I was having a problem with dates last night. The claim was actually filed in Mar 2001. The rating awarding the 0% was received in Jan 2002 at which time I filed a NOD. The SOC was issued in Feb 2003 which reaffirmed the Jan 2002 0% rating. Basically I added this info just to show how their later decisions was kinda of whacko when they changed the effective dates. I fully understand their decision on the VA 9 (July 04 letter) so up until this point there was no problem.

Yes sir, the July 05 "strange" rating decision states that the 0% rating is continued with an effective of Feb 04 the date of the claim. As you stated this is a mute point since it was a 0% rating and no actual money was involved. It is just strange that they would change the effective date.

The hypertension was part of the claim. This is the very first claim that I filed upon retirement. The claim contained a request for service conntection for - hypertension, skin disorder, Spuring of the lower back (L5) and hemmroids. Hypertension received 10 percent, all others received 0 percent.

The evidence of record for the back claim is: SMR's documenting injury while in service, my original statement of the effects of the disability, the original C&P, the worthless (due to my error) VA 9 outlining my lay statement as to the the increase and the C&P from May 05.

The original C&P stated "mild limited range of motion, but no pain present". This is what started the ball game. Under the old general rating formula for injuries of the spine, the subjective term "mild" should have received a 10 percent rating. The general rating formula was changed in 2002 so it does not pertain to my claim since it was reopened in Feb 2004. The wording from the denial provided that "although there was a mild limitation of forward flexion present, there was no pain present during the examination......" Now I could not find such wording that required "pain to be present". This would not meet the CUE standards as the word mild is too subjective therefore it would fall under the "different interpertation" rule that my VARO likes to throw around so this is water under the bridge as far as I am conserned.

The second C&P which was conducted based upon my statement claiming that the back problem had increased since the last C&P provided that "forward flexion was 45 degrees, with additional limited range of motion upon use." All other measurments were 5-10 degrees shy of normal. As I stated the original denial used the old general formula (pre 2002). However, this one should have been rated under the new general formula which provides that "forward flexion greater than 30 degrees but less than 90 = 20 percent. Now when they issued the SOC in the area where they list the requirements that must be met for a paticular rating they provided the rating criteria for both the old and new general formula. However, in the reasons and basis they did not provide any explanation for that action nor did they provide any details on which formula they used (they did not provide any explaination at all for their actions in the SOC nor the Jan 06 rating decision). Looks like they applied the old general formula and was looking for the word "Moderate Limitation of Motion". However, as I said the only thing in the reason and basis is the wording from the last C&P and it was word for word.

There is no other evidence in the file concering the range of motion or anything else pertaining to the back disability.

Sorry I confused everyone with my original post and now I have submitted another full length book. The bottom line is - Claim was reopened in Feb 2004, 10 percent was approved in Jan 06 with an effective date of Jan 06. Now I am off to a hearing due to the fact I believe the rating meets the 20 percent rating level and the effective date, per the law and regulations is, the date the claim for reopen is. Thanks for any input and I promise not to persent my whole blasted claim again. I know all of you is wondering why I am not using a SO. The state SO, a one man show in my area, said he could not handle any more claims, the other three major ones, one which was so drunk when I went there I could not understand him, said, you are doing ok, just file your NOD and see what happens!