My first appeal ever, please school me!

[Carl the Engineer]

OK everyone, take it easy on me.

I plodded along and got 100% P&T all by my self, many successes, some denials, all agree-able.

On my last claim, I was denied secondary service connection for Barrett's and Hiatal Hernia, claimed as from medication use.

I have attached my 21-526EZ, 21-4138 and the denials from my rating letter.

I claimed secondary to medication use.  The VA denied because of no medical link, but no mention of medications and use.  

My question is, with a supplemental claim, you are not supposed to re-submit evidence, but if they don't mention it, did they use it?  The medication and historic use was included in my claims, along with symtoms while in service. 

Do I, can I, submit medical "peer review" articles as evidence?

Also, in their statements, they say I do have the disabilities.  So, I guess I have to make the link.  NSAIDS causing Barrett's and or Hiatal Hernia.

Suggestions,

Hamslice

Keep in mind, I still have to peek at my C-File and see what it has to say.

IMG_20220125_0001.pdf IMG_20220125_0002.pdf IMG_20220125_0003.pdf

[broncovet]

HLR rarely works.  I would likely do 2 things (not necessarily in this order):

1.  File a nod for the BOA (board of appeals).  Rarely works to stay in the VARO which already denied you.  If you want to beat your head against the wall, so be it, but dont expect it to take the wall down.  

2.  "Fix" your appeal.  Get medical evidence of a doc statement that your condition is "at least as likely as not" due to medications for a sc condition.  

    "Peer review" articles dont mean too much.  You have to prove YOUR case..not those participants of the study group.  

    There can be a group of 40 people in a peer reviewed study who found that x=y (x causes y) "in those participants.  But you are not one of the participants, so you need to show that x caused y IN YOU.  This is done with medical evidence, often a medical opinion. 

Its one of the Caluza elements.  Get the Caluza's---get SC.

Fail to get the Caluza's...no SC.  Pretty simple.  Board decision after board decision states whether or not you"meet the criteria" of the Caluza triangle:

    The Caluza triangle becomes the Caluza double, with secondary, because you dont have to reprove your "in service event".  That is established by (another service connected condition)

    So, here are the Caluza double for secondaries:

1.  Current diagnosis.  

2.  Nexus linking your current diagnosis to an already SC condition.  

   You need not bother with Caluza element "in service event" because that is presumed by you SC condition(s).  

    In other words you need not reprove your already SC condition.  

 

[Whodat]

Well I do apologize for asking  and looks like that your mind is made up. You did come to the Hadit site and asked for advice and that's what we do and best of all, it's free. If supplemental is your decision then by all means, go for it. It's all a crap shoot. 

Everyone is different, I may have taken the HLR so that at least a different set of eyes is looking at my claim. More experienced eyes. Let them find the error and return it back to the AOJ for corrections. Maybe at that time, AOJ realizes that they did not properly go through your records. Oh and by the way, you may have more new evidence to add such as and imo. 

I don't know. I could be wrong. I am here for educational purpose as well. 

[pacmanx1]

2 hours ago, Whodat said:

Well I do apologize for asking  and looks like that your mind is made up. You did come to the Hadit site and asked for advice and that's what we do and best of all, it's free. If supplemental is your decision then by all means, go for it. It's all a crap shoot. 

Everyone is different, I may have taken the HLR so that at least a different set of eyes is looking at my claim. More experienced eyes. Let them find the error and return it back to the AOJ for corrections. Maybe at that time, AOJ realizes that they did not properly go through your records. Oh and by the way, you may have more new evidence to add such as and imo. 

I don't know. I could be wrong. I am here for educational purpose as well.

Supplementals, you can add additional evidence, HLRs, you can’t add additional evidence and as for Direct BVA appeal, it depends on the route you want to take. The thing to consider is that your claim was just denied by the RO and if you file a supplemental or an HLR, it stays at the RO and most likely will be rubber stamped as a denial. In the past when a veteran would file a NOD at the RO, the VA rep. would just walk it over or call a DRO down to ask them what they thought and then it would get denied. They don’t like over stepping someone they work with. Don’t get me wrong there has been some Supplementals and HLRs granted but they are very, very rare. Your claim your call. Here at hadit.com we have seen it a lot and I mean a lot that it is just rubber stamped as denied wasting the veteran’s time. Even a quick denial is still a denial.  Good or bad the RO is doing their job; I try to tell veterans to do their own homework. You have to figure it out on your own or get some legal help. Hamslice, you’re currently 100% and anything over that will push you closer to an SMC payment and in my opinion the RO doesn’t want that.

Appeals Modernization - Veterans Benefits Administration (va.gov)

[Carl the Engineer]

3 hours ago, Whodat said:

Well I do apologize for asking  and looks like that your mind is made up. You did come to the Hadit site and asked for advice and that's what we do and best of all, it's free. If supplemental is your decision then by all means, go for it. It's all a crap shoot. 

Everyone is different, I may have taken the HLR so that at least a different set of eyes is looking at my claim. More experienced eyes. Let them find the error and return it back to the AOJ for corrections. Maybe at that time, AOJ realizes that they did not properly go through your records. Oh and by the way, you may have more new evidence to add such as and imo. 

I don't know. I could be wrong. I am here for educational purpose as well. 

Whodat,

No apologies needed.  You have given me something to think about.  I think my evidence to win is already in the claim, and a different set of eyes may see it differently.

And, according to the cheat sheat (20-0998) they send with the decision, I can do either one first and then do the other.  And, I have time.

pac,

Not trying to get SMC, as I don't think I have a path for that, but just want it SC'd incase that is what takes me out,

Hamslice

It will probably fall out to whether I can get my C-File in time.  I don't need it for a HLR.  

 

[blahsaysme2u]

so i was going to do HLR on couple claims but i wanted to submit a 4183 to lay out my NOD and why the VA got it wrong. my lawyer emailed me back saying they wont even read that in a HLR. doesnt seem right(as in they should let you at least make a statement, but i guess they consider that "new evidence" and that seems wrong)

so maybe supplemental is the way to go unless you just want someone to look at your claim as is...but i still feel like you should be able to make an argument to the HLR. 

[Rivet62]

58 minutes ago, blahsaysme2u said:

so maybe supplemental is the way to go unless you just want someone to look at your claim as is...but i still feel like you should be able to make an argument to the HLR. 

From my understanding, make sure the attorney doesn't file a VA Form 9, otherwise all bets are off for the supplemental claim or any argument outside the issues going to the Board. Berta might be able to clarify this, but she provided a link to a case before the Board that denied claims raised in a concurrent supplemental claim and that those issues weren't properly raised at the Board as they should have been, and the RO didn't consider it because the Board appeal was chosen. Please Berta I hope you chime in here... Or anyone else with more experience than me.  My understanding is that VA Form 9 puts everything in front of the Board and so there is no new evidence that can be considered and no arguments of new issues. The HLR option is also voided by the filing of VA Form 9 as it is a request to go before the Board.  So be careful.

I know when I had my Board hearing my attorney warned me NOT to raise any new issue during the hearing is that would have kicked the whole thing back to the RO. VA Form 9 is a request to appeal existing issues already adjudicated at the RO level, and nothing more. Just make sure that he doesn't file a VA Form 9, so he can enter the Supplemental Claims path of appeal.

Edited January 29, 2022 by Rivet62