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VA Denial for Presumptive Conditions

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Chief1997

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I’m a gulf war veteran that was exposed to particular matter during military service in southwest Asia under the new pact act. My exposure in the golf war area is acknowledged by the VA and I am considered a veteran exposed to particulate matter in the new presumptive list has melanoma and any head face or neck cancers listed as presumptive conditions. I had a melanomas and a basal cell carcinoma removed from my right and left for head’s. The melanomas removed in 2013 and the basal cell carcinoma was removed in 2009. The VA has denied me service connection for the scars associated to these two cancers their reasoning for the denial is they requested an examination with medical opinion based on toxic exposure, they do acknowledge that there’s evidence that shows participation in toxic exposure. However, the medical opinion by the examiner does not show an association between my claim disability and in-service toxic exposure.

My frustration is I believe that a presumptive condition is supposed to be automatic approval, so I’m confused why they denied this claim and what should I do, when I appeal this should I go directly to the BVA or do a supplemental appeal?

I’ve been down this road before and here in Florida. It appears the supplemental appeals rarely get approved. It is if they just follow the local levels decision I have had better success at the board of veteran appeals , thoughts, ideas and recommendations are appreciated. Attached is the VA’s denial letter.

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Since you have a current diagnosis of this presumptive condition and the VA even concedes you have been exposed under the PACT ACT and you have this presumptive condition then with copies of all the medical and non medical evidence you will have to do one or all of the following procedures.

1. Get even more medical evidence from another specialist VA or private basically stating the same thing in a medical independent opinion that you have this presumptive condition and it is due to the exposures in the Gulf war.  You can use this in a Supplemental claim and later in a BVA appeal if necessary.

AND/OR

2.  Ask for a VARO senior rater HLR review based upon all the medical and other evidence of record now before the VARO raters and of course contest their denial decision in your HLR request.  You have 1 year from the denial decision date to file a Supplemental and/or HLR.

AND/OR

3. File an appeal with the BVA based upon all the evidence of record (ROA) and any new and/or material evidence you may obtain. You also have one year to file a BVA appeal.

AND/OR

4.  Find an experienced qualified DAV, VFW, Legion, AMVETS or Purple Heart VSO at a VA regional office to assist you with your claim/s and/or appeal/s. Their services are free to vets.

My experience has been over 30 years that asking for DRO and HLR senior rater reviews has been a waste of time as they simply rubber stamp the existing VARO denial.  Your mileage may vary tho.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

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Edited by Dustoff1970
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  • Greeter

I personally would request a BVA apppeal with new material evidence. Like dustoff said they only review existing records. The thing you need to do is gather more evidence in your favor and submit to the BVA. I’ve had much luck with the BVA as opposed to the HLR because they are like the VARO in deciding a claim and often ignore information. Granted a BVA appeal will take longer. But you will have more on your side when dealing with your claim as they look at the information more clearly. Please post additional questions if you have any and I or others will do the best of our ability to assist. Best of luck

Edited by Dot09
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44 minutes ago, Dot09 said:

I personally would request a BVA apppeal with new material evidence. Like dustoff said they only review existing records. The thing you need to do is gather more evidence in your favor and submit to the BVA. I’ve had much luck with the BVA as opposed to the HLR because they are like the VARO in deciding a claim and often ignore information. Granted a BVA appeal will take longer. But you will have more on your side when dealing with your claim as they look at the information more clearly. Please post additional questions if you have any and I or others will do the best of our ability to assist. Best of luck

Thanks, that’s what I thought myself get my own IMO and appeal directly to BVA. The VA claims reviewers are so messed up, it seems they spend more time trying to find ways to deny claims as opposed to helping a veteran get it approved. My claim sat in the “Regulatory or Procedural Review” for months.
My decision by VA excluded and had my conditions link to the incorrect exposures, they kept referring that the cancers were not a result of Herbicide exposure. I had to tell them twice the cancers were linked to Gulf War exposure and not agent Orange exposure. 

I have 3 choices for BVA appeal. I’m thinking of going with Evidence Submission Lane? Your thoughts on this lane or other lanes?

 

      • Direct Review Lane: The BVA directly reviews the evidence that was before the VA in the decision on appeal. The BVA has a 365-day timeliness goal for this docket. No new evidence will be considered nor hearing available for this option.

 

      • Evidence Submission Lane: Additional evidence can be submitted with a NOD and within a 90-day window following submission of the NOD, no later. The BVA does not have a duty to assist, no hearing is available, and the record is closed after the 90-day window.

 

      • Hearing Lane: A hearing will be scheduled with a BVA law judge in which the BVA will choose the type of hearing (video conference or in-person in Washington, D.C). Additionally, the appellant may submit evidence the day of the scheduled hearing and up to 90 days after. The BVA does not have a duty to assist and the record is closed.
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At the bottom of your box for posting a topic you will see the option to drag and drop your computer file/s under the choose files link.  Click on this link and when your file explorer on your PC pops up you then enter the search term for your file in the document search box and then click on the sought after file and it should then upload to the topic box you are posting in.  You must designate in file explorer if you are searching in documents or pictures.

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