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]

Vike, yep as I stated any insight is a great help. I will keep the meeting short and to the point. Hopefully it will work out. Once again thanks

[Vike17]

Ricky,

Now things are a bit clearer with the dates. There are just a couple of things I want clear up for you though.

"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"

Since your back is already service-connected the SMR's are a moot point. The VA Form 9 should be the date of your increase.

"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......" "

Yes and No, alot of it also depends on what the rest of the C&P exam states. The old criteria was very subjective, that's why the vA cjanged them as of Sept. 2002. At any rate this is also a moot point becuase it wasn't appealed within the one year and there wasn't a CUE made. I say this because the C&P exam aslo sates that you didn't have any additional limited motion and so forth due to pain. The rating could have either gone 0% or 10%. Actually sice your orginal claim was done before the changes and you applied for an increase afterthe changes, both criteria have an affect on you, for the better. The VA will use whichever criteria (either the old or the new) that results in a higher rating. I suspect the new criteria would probably result in better results, first becuase of the objective findings and the possibility of being able to receive additional ratings due to neurological abnormalities. There was great confusion whether this could be doen withthe old rating criteria.

"Now I could not find such wording that required "pain to be present"

This is the deluca criteria which came in to being, I think, in 1992.

"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"

It's not a matter of difference of interpretation, it was simply a judgmental call on the raters part, which, as you stated, is also not a CUE.

"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"

Actually to be affored a 20% rating, forward flexion of "greater than 30 degrees bur not greater than 60 degrees" must be measured. According to your first measurements, you would qualify for the 20% evaluation. However, you need to find out what the "additional limited range of motion upon use" was. Perhaps with that additional limited range of motion you would qualify for a 40% rating???? Also do you have any documented incapacitating episodes by your physician that might qualify you for ahigher rating????

"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"

This what I meant above in my prior paragraph, they'll use whichever criteria results in a higher rating. I'm willing to be that, even though they didn't state it in the reasons and basis of the SOC, which they should have, they still took by rating criteria into consideration. My guess is someone just missed this.

You also said that a few weeks after receiving the SOC, the VA sent you a rating decision with an increase. It sounds like someone caught a portion of their mistake but made another i.e. the wrong percentage and the effective date. At any rate, you could have sent a NOD on that rating decision or just kept this appeal in the works. It would six to one, half dozen to another. The only thing is by you keeping this appeal active, you're probably getting it resolved faster than if you were to let this one drop and persue the later on.

I hope this has helped you in some way!

Vike 17