Fm 9

[Scottyp65]

Looks like my wife will have to put in a FM 9. I would really like some help here as it is a bit tricky for me to understand just what it is I need to do. Of course I don't have all the particulars with me at the moment but the gist of it is as follows.

My wife as active duty for four years and then had a break in service and came back in as a reservist.

She was sent to the Desert, PSAB, for her annual tour of duty. On her return she had some breathing problems and was diagnosed with Reactive Airway Disease. No problems prior other than rhinitis which is service connected.

The part mixing things up is she went to the military hospital for treatment and diagnosis when she had the time to which happened to be durring the week so all of her visits were in and on her dependent record.

Now the VA in the DRO NOD decision said:

1. The see where she has reactive airway disease diagnosed

2. It occured in the time/period of service

3. It could have been from her time in the desert

BUT

4. As there is no mention in her military medical record she is denied!

So they admit she has a diagnosis, it happened while in service ....

anyway it is tricky with all the rules, and I am sure there is a reason why,,,,, but very frustrating. To top it all off her unit would not let her participate in Drill if she were on the meds and not world wide qualified.

So there she is. Any suggestions?

[Berta]

"To top it all off her unit would not let her participate in Drill if she were on the meds and not world wide qualified"

proof of that from her personnel record will help her claim-

I sure would think that her present disability is secondary to her service connected one.

Did the DRO base the denial statement on medical rationale from a C & P doctor? or did the DRO just make that up? They arent doctors.

Did a VA doctor say this was "more than likely" ? was a C & P given for this breathing problem ? DO you have a copy of the C & P?

Did your wife get a VCAA letter telling her exactly what evidence she needed?

There is considerable info here as to the I-9- I suggest you search for a post I made as to a statement regarding preserving all errors on appeal-

The i-9 can call attention to another look see by the VARO-

in the olden days it sure did but things have changed.

The 1-9 Right on the first page in the limited area they give should immediate state what errors they made in assessing her medical evidence properly.You can attach additional page but the first page is all they might read-it should be a strong statement-

I suggest you get copy of the above that you mentioned and send that to the VA with a cover statement on a 21-4138 (your vet rep has this form-they are at the VA site too).

She might have to consider getting an independent medical opinion.

Now is the time to consider that.

That is a pretty bizarre decision-

what possible rationale did they use?

based on the decision seems to me they should have made an award.

Did they seem to think she was in a desert as a civilian?

Bizarre-

Also- I suggest that you file a request for reconsideration of this- before you send the I-9 - but watch the clock on the I-9 deadline-do you still have some time left before formally filing the I-9?

You could refer to and attach the additional evidence of the duty restrictions if you have it- or at least call their attention to this in her personnel records.

Edited March 20, 2007 by Berta (see edit history)

[Pete53]

The Form 9 does not require that you specify your case. Just a general denial of the VA denial and anything you want to put on record.

Example;

I disagree with the VARO denial because they failed to apply the proper regulations and did not consider all evidence before them.

If I am wrong please post a correction.

If you don't have it already ask for a Full Statement of the case.The Statement of the case can be used as a blueprint on what is needed to win your claim.

[carlie]

On the Form 9 - I would also list the date of the Rating Decision that I am appealing along with each individual issue I am appealing, example:

Rating Decision Dated 00/00/0000 granted XXXX SC at the 30 % level - the evidence listed on this rating decision shows my evaluation, going by the Schedule of Rating Disabilities falls into the

50 % level of disability. The effective date provided for this disability on the Rating Decision is

listed as 00/00/0000 - the evidence shows a timely NOD was filed, no new evidence was presented

and the effective date for this should SC at 50% is 00/00/0000.

The example above, regards 1 SC disability - with 2 issues covered.

It is not necessary to go into this much detail - this is just the way I would approach it and

I do suggest this, if you are representing yourself.

There is also a box you can check on the form 9 that just says you are appealing the decisions.

jmho,

Hope this helps a vet.

carlie

[Scottyp65]

Berta, Pete, & Carlie,

Thanks for the assist. I will tear into the SOC using the information you supplied and see what approacj to take based on what they have said. I agree with you Berta, it does seem strange. I will also have her contact her unit to see if they have any records on not letting her drilll.

I am interested in seeing if the Reactive Airway Disease can be classified as secondary to the SC rhinitis? That may well be the avenu to take. Again I do appreciate the inputs and advise. Inparticular asking them to reconcider.

Have a Great Spring Day!

ScottyP

[Scottyp65]

Here is a synopsis of the SOC. I appoligize for the length.

Service connection will be granted if it is shown that an individual has a disability resulting from and injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury or disease in the line of duty, in active military, naval or air service.

Where the determinative issue is a service connection claim involves a medical diagnosis, competent medical evidence is required. This burden cannot be met by lay testimony because lay persons are not competent to offer medical opinions.

Review of your discharge document shows you were on active duty with the Air Force… Available service medical records for this period of time do not contain complaints, findings or diagnosis of reactive airway disease. The records do show, however, you were treated for sinus and allergy conditions.

And, available dependent records as well as reserve military records for the period … indicate ongoing treatment for sinus and allergies, along with a clinical diagnosis of reactive airway disease around December 2001. (I will have to see this date in the record?) As you have periods of active duty for training in the Air Force Reserve, you may be service connected for a claimed chronic condition if there is probative medical evidence of a current disorder that is causally related to either an incident or your active military service, or and injury or disease that occurred during your active duty for training.

The available service medical records are without reference to complaints or findings indicative of the presence of reactive airway disease during active duty or your Reserve active duty for training.

You filed a claim for service connection for reactive airway disease and contend it started while on active duty for training. Military records establish you were on temporary duty assignment in Saudi Arabia. We requested service medical records for this period of training from the Medical Squadron at Office (their exact spelling is wrong) AFB and received a response that no records were available.

Findings from the February 21, 2006, VA examination include a diagnosis of reactive airway disease. The examiner provided the opinion that the symptoms had their onset in and around the time frame immediately following your deployment to Saudi Arabia.

Although information of record does show you have been diagnosed with reactive airway disease, the evidence does not establish the claimed disability was incurred in or aggravated in the line of duty during military service either during active duty or reserve periods of service. Service records do not show treatment for the respiratory condition during active duty, and there are no available service records for the period of active duty for training…., which shows you were treated for this claimed disability. The opinion provided by the VA examiner was based upon your history and not substantiated by information in your claims file. Therefore, service connection for reactive airway disease is denied as the evidence fails to establish that this condition either occurred in or was caused by military service.

She is service connected at 30% for Allergic Rhinitis. From her prior service time in the late 80’s.

[Vike17]

Scotty,

It appears the veteran is already service-connected for the "ongoing treatment for sinus and allergies" with a 30% evalutaion.

Furthermore, in short the VA is denying the claim because there is no nexus or "connection" between the current diagnosis of reactive airway disease and the veteran's militray service. Apparently, there is no records or the VA is unable to locate medical records from Saudi Arabia to substantiate the claim. Also, the C&P doctor opined that the symptoms had there onset in Saudi Arabia based on the veteran's own words, as there isn't any actual medical records from that time frame. This is where a probative IMO comes in. An IMO, in order to carry any significant weight, must be based on objective findings, not subjective evidence of merely what the veteran stated.

This SOC and its reasons are pretty cut and dry.

The veteran will probably need to secure any records from Saudi Arabia or any other records from while in the service that show reactive airway disease and then have a doctor review those records and write a probative IMO. The IMO could make the connection based on direct service-connection or being secondary to the Allergic Rhinitis if there is such a medical link between the two.

I hope this helps!

Vike 17