I am in the process of tearing apart the SOC that I received on my case and submitting my VA 9. However, it is a personal goal in my life to come face to face with the idiots they call DRO's in Montgomery VARO. Therefore, I am willing to add the additional time to my appeal to make this happen but I do have a couple of questions: During the DRO hearing is it possible to receive an on the spot approval of the disabilities you are appealing? Is it possible that after the hearing there will be maybe partial grants of appealed items? If no changes are made after the DRO hearing will I receive a SSOC?

Ricky

I would say yes to each question but that doesn't mean they will do what they Could do-

Here is the DRO Job Description from M21-1:

I had to send it to my DRO- she didn't have a clue what she was doing- I was her first claimant as a DRO-
I had to have them rescind their first SOC and then prepare another- she messed that up to-
then I dropped a dime on them with the IG-they all hustled to do something- dont know what- with my claims-

Last week I had to tell them how to handle one of my claims- I was livid- it sat there for three years already- a legal issue that only VA counsel can decide---the dopes told me last week this claim was in appeals-
I fired back say what? they never gave me a decision on it to appeal-
I said it should be handled by the OGC-
The day after they got my letter it was sent to the OGC in Wash-

I am furious that I seem to be doing the DRO's work on my own claims.




I

Ricky

As Berta says, the answer is "yes" to each of your questions. If you have a spouse bring her so she can make a statement on the record about how your disabilities affect you. I think it is a good idea for you to go face-to-face with the DRO. It worked for me. Be ready to horse trade a little bit via your service officer. I think the DRO's are motivated (maybe just by their ego) to try and settle the appeal. Your service officer should present your case for you so that you don't have to argue with the DRO. If you can get what your really want out of this hearing it is worth the effort and time.

Berta, how did you get so fortunate to be her first claimant? It is amazing how some of the raters just don't know what they're doing. How did she take you sending her the job description? I love your tenaciousness.
Pearl

Thanks. Is there any documentation (VA generated) that details what must be in a SOC. I understand that it must contain the evidence reviewed, pertaintent laws and regulations etc.... However, I remember reading somewhere that they must at least include the rationale used to deny the claim. In my SOC the reasons for denial were very generic. the only info contained was "does not meet the requirements". No disucssion of my medical evidence submitted, no disclosure of VA held refuting my evidence etc. I thought that was what the SOC was supposed to do - provide info in which the veteran could use to sucessfully appeal his claim.

Ricky

Ps. John I do not have a service rep so it will be just me and the wifey who I am going to have to handcuff during the hearing to keep her from beating the crap out of the VA Rep.

I promise guys this is the last question. What part of CFR discusses disease's such as stroke, ms etc... that can affect a wide array of body systems and each system affected must be rated seperately?

Thanks

Ricky

Reasons and Basis is discussed in Gilbert.

89-53 Gilbert v. Derwinski USCVA

http://www.hadit.com/uscvagilbert8953.htm

Enjoy

sledge

Nice posting SLEDGE, I'll add this to my file of worth while information on claim adjudication. It gives nice explanitory segments for reason and basis and benefit of the doubt. Now if you can only get the VA to follow these rules, things would be a lot easier for the Veteran to see what he has to do to prove his claim.

Jim S.

Sledge, that was great. Thanks. I was up until 3 am last night working on this unnecessary appeal. After reading the ruling twice I think that I fully understand the requirements of the board but do the same requirements apply to the RO in production of the SOC? The SOC list three seperate sections laws, evidence, and reasons. However, in the reasons section it is lacking those "clear" statements required by the court of the board. There is no analysis of, mention of probative value/lack of etc....... Bottom line is you have : laws/regulations 38 CFR; evidence Doctors statement; reasons does not meet the requirements for disability with no explanation of how they came to that conclusion.

This ruling requires the BVA to provide such explanation but I fail to see the same required of the RO. Maybe I am just to sleepy or simply crazy.

Thanks Ricky

I tried to review the BVA rulings for the Montgomery VARO. The first 150 cases that I pulled up were all REMANDED CASES...... No wonder my SOC is so crappy.

Ricky

This is why I am not crazy about going to the BVA since you may wait two years for a remand back to the VARO and then wait another year for the same denial. This cycle can go on forever. If the DRO can sort it out then that is faster and better.

I would rather work it out at the RO level also. However, the DRO is the one who issued the worthless SOC. My understanding is that now I must submitt the VA 9 for the board review. How do I keep it at the RO DRO level?

Ricky: The way to look at ruling that tell the BVA what they have to do legaly such as Reason and Basis for their decision, is that they are speeking actualy to the Secretary of the VA, and since the VA includes the VARO, that these rules are binding on them as well.

The problem with the VARO is that eather they are ignorant (they don't know how to apply the rule) It's all Greek to them, Their is no oversight at the VARO level to check each raters work for accuracy. Apparently they yet to figure out a way to check their own work as they process the information in the claim.

It's like Berta says, it's as if they refuse to read all the evidence, only assecing that information against approving the claim.

But yes, any presidential ruling by the court is binding in all procedural matters, whether it is at the VARO level, BVA level, or by any of the judges who may sit in judgement on the court.

Jim S.

The power word here is, "NO OVERSIGHT" at the VARO or BVA for that matter, but the BVA is better at knowing how things should work.

It's a shame that the Raters at the VARO cannot put the evidence on a questionaire. the questions would consist of such question as you see in this posting so the Rater can determine how to assess the evidence.
Is it a factual statement from a buddy who whitnessed the event, such as an accident while in service, but not noted in the medical files. Is the buddy witness to a chonicity of complaints after the event. or is the buddy trying to play medical doctor and providing medical summery of the Veterns condition as it relates to the event.

If their are more answers to yes, that the buddy was a witness to an event, that after the event he was made aware of the Veterans condition, and he could attest to some physical or visual event relating to the actual event, such as he was knock out, was unconscious for a period of time, or he appeared to be dizzy or disoriented to day and time, THAN to what appeared to be medical findings, like the Veteran had a concussion, that he cracked his skull open without seeing the actual wound in the head. That the event was the cause of the Veterans Migrains later on. etc etc.

Then if the Rater later gets a reversal or remand, he can go back and see where he may have gone wrong and better learn from his mistake.

Like I said, they need some type of OVERSIGHT so they can see where they made the mistake and learn how not to make the same mistake again.

Jim S.

p.s. Anyone want to make an offer to the Secratery for a pilot program for some form of oversight at the VARO level for new Raters or as a refresher for slow learners?

Ricky

Ask for a personal hearing with the DRO. Did you get a personal hearing the first time round or was it just a review?

No hearing the last time just a review, if you call it that of the NOD. In the evidence section they left off medical statements that supported my claim. But they said they did review my lab work in the CFile from 1986 - 2002, and medical info from my DMII claim all of which had nothing to do with this current appeal/claim. I will submitt my request for a DRO hearing on Tuesday. Hopefuly I will get one within the next two years. I assume that I still have to also submit my VA9 to meet the 60 day period. My appeal will be based upon the fact that all medical evidence in the file clearly supports my claim and no medical evidence is held by VA to the contrary.

Ricky

Ricky- that is a Very Good opening statement for the I-9-under # 10

"My appeal will be based upon the fact that all medical evidence in the file clearly supports my claim and no medical evidence is held by VA to the contrary."

That is exactly what I meant today-a strong statement to attack their decision---and catch their attention right away---
I just gave Josh some info on preparing the I-9s -I forget the topic???? Response??? Sec 1151?
It might help you-
Berta

Berta, in another post you were providing guidance on getting to the point and attacking the SOC when preparing the VA9. Below is one of the shorter responses going into my VA9. Is this what you meant? is it to the point enough or is it too whinny? I would appreciate any and all comments from my fellow hadit family. Thanks

ITEM UNDER APPEAL: Entitlement to an increased evaluation of 20 percent for minimal spurring at L5.

BASIS FOR APPEAL:

1) VA failed to apply the regulatory requirements of 38 CFR to this claim as required by law.

2) 38 CFR 4.6 provides that “Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.” The lack of any logical reasons or basis for their decision ( as required by NORMAN GILBERT, APPELLANT v. EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE) along with the lack of any negating medical evidence of record held or disclosed by VA provides proof beyond a reasonable doubt that VA failed to fairly evaluate the medical evidence of record in support of this claim.

3) The 18 May 2005 Compensation and Pension examination used to make this rating decision shows that the objective findings by the VA medical examiner clearly meet the requirement of a 20 percent rating. In summary the examination provided objective findings such as: “he can flex his back 45 degrees, extension 15 degrees’ ; lateral bending 30 degrees to either side”; He walks with an abnormal gait”; “There was some increased limitation of motion in the lumbar spine with repetitive use but no increase in weakness or fatigability or in-coordination.” VA Xrays provide that partial scarring is seen at L5, otherwise normal.

4) 38 CFR 4.71a (5237) which was provided with the statement of the case, provides that for a disability under 5237 to be evaluated at the 20 percent level “Forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater that 60 degrees.” The 18 May 2006 Compensation and Pension examination provides that my forward flexion was limited to 45 Degrees.

5) The 27 January 2006 rating decision which denied my request for a 20 percent evaluation and assigned an evaluation of 10 percent provided that this was done based upon a difference of opinion due to the medical record of evidence being interpreted differently. It is beyond comprehension what the rater felt they were interpreting. The medical statement of “he could flex his back 45 degrees” contained in the 18 May 2005 VA examination is just that. It is a medical statement based upon scientific methodologies to gain exact measurements when limitation of motion are important in making a fair and just evaluation not simply an opinion placed upon the table for
interpretation. Neither myself nor the rater hold medical degrees or training of a “medical type” which would allow for such and interpretation of a medical fact. Such an interpretation would and has in this claim completely reverse the medical statement of a medical doctor which is why the VA does not allow such actions by lay persons.

6) 38 CFR 4.7 states “where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly
approximates the criteria required for that rating.” The SOC provided in the laws, rules and regulations section the requirements of the criteria for a 10, 20 and 40 percent evaluation under 5292 along with those required for an evaluation of 0-100 percent under 5327 both of which were directly preceded by a full quote of 38 CFR 4.7. It is assumed that the rater was attempting to show that they had considered both disability rating codes in determining the final evaluation for this disability. The examining VA doctor provided in his objective findings which are medical statements and not mere medical opinion, “veteran can flex his back 45 degrees” which not only approximates the criteria required for a 20 percent evaluation under 5237 but removes any doubt as to the level of evaluation and which disability code should be used in the evaluation. The VA doctors statement was absent of any wording such as severe, moderate, or slight which are required for an evaluation under disability rating code 5292. Once again he did however state the veteran could flex his back 45 degrees with is a clear stand alone scientifically obtained measurement meeting the criteria for an evaluation of 20 percent under disability rating code 5237.


ACTIONS TO BE TAKEN BY THE BOARD: Based upon the fact that the VA medical evidence of record in this claim shows undisputable evidence which meets the regulatory requirements of 38 CFR, Part 4, Section 4.71 Disability Rating Code 5237, I simply request the Veterans Administration, now being represented by the “Board” in this matter, comply with the mandated laws, regulations and internal operating manuals of the VA and issue a final rating decision on this claim granting an evaluation of 20 percent under disability rating code 5237 for this disability claim

EXCELLENT!!!!

Men and women-this is exactly what I meant-

Tell them exactly why their decision is wrong-
Tell them exactly why any VA medical statement is wrong-


HMMMM 38 CFR 4.6 ! Nice touch! I usually use 38 CFR 3.102-

but this is exactly how the adjudicators are supposed to determine and apply the Benefit of Doubt
doctrine and to weigh the evidence- Fantastic-38 CFR Book C.

Men and women-when you begin to overcome the enemy- always good idea to take any weapons and ammo they leave behind and use against them- this is what I mean

Ricky has used their words, their misapplication of the facts and their 38 CFR against their decision---

NVLSP recommends to add to appeals that you "take exception to" and are "preserving for appeal" all legal and factual errors, all misapplication of M21-1 , 38 CFR, due process regs, and any failure to discharge the duty to assist that the VARO made or that the BVA ,hereafter, could make in deciding your appeal.

As I said somewhere- I sent my appeal priority and got a email verification from the PO with the tracking slip- the VARO started working on it immediately-
that surprised me-
either they are taking the time to fold all my stuff into paper airplanes or-
because I raised hell a few weeks ago with them, they are actually reading it all-

They DO take the I-9 seriously and when they know that you know how to access 38 CFR Book C (which is what they are supposed to do) they are on the defensive and have to consider appeals like this
conscientiously.

Most I-9s never get to the BVA- I think they would rather resolve an excellent I-9 like this at the VARO so the BVA never knows how lousy some of their regional decisions are.


GREAT JOB- Ricky is the hadit appeals EXPERT in my mind!!!

Most SOs and vet reps will not prepare appeals like this-they dont know how-
a simple statement of disagreement just wont do it-
even a supporting statement that many vet reps prepare to attach to the appeal usually doesn't cover much.

If the VA doctor or the C & P results are wrong- do not hesitate to tell them why.
Excellent work Ricky- I know this involved leg work but that is often the key to success!

Thank you Berta but I really think that you give me credit for being smarter than I really am. Any simple minded old vet like me could have read through the SOC one time and been able to tear it apart since it was written by incompentent idiots. In my appeal for the temp six month 100 percent rating for my CVA they keep referencing "lack of recent disease". Has any one found a VA definition of RECENT issued by the VA? If so a link to that information would be greatly appreciated. Once the VA9 is submitted and if it is effective I would be willing to post it as an example on Hadit if needed.

"...incompetent idiots"... just the words I was looking for!

Oh, yeah, I forgot--Berta said name calling won't work!

Ricky, I hardly ever save something on the computer but this post will be saved for future reference.
One of the most well thought out and well prepared appeals I have ever seen and I have seen several that Attorneys have wroitten and none of those can touch that one. Great Job

Morgan,

Also be careful of using the term VA Law in any official paper work because it is definitely an oxymoron if I ever heard one.


Ricky

ps. is the following to childish. I just wanted to poke at them one time since they are the ones that are keeping me up late at night typing this unnecessary appeal.

8) All medical evidence of record associated with this claim supports the fact that a CVA occurred in late January 2005, symptoms of a current and active disease were present then and continue to date. The only evidence of record supporting the VA’s claim is the interpretation and opinion of a non-medical trained rating employee. As such the use of their “evidence” to deny the claim brings to light other issues of non-compliance of 38 CFR. Surely the VA is not trying to show their 1 piece of non-medical evidence against my 5 pieces of medical evidence meets the preponderance rule. In any game, even the games played by the VA, 1 Vs 5 does not meet the common or legal definition of “preponderance of evidence”. The bottom line is that the preponderance of evidence in this claim is truly in favor of the veteran and demands the approval of this claim.

Anyone Care To Add To The Discription Of The VA Rater Just a way to release some of that pent up whatever that seems appropriate.

Incompetent Idiots

Ignerant, Incompetent Idiots

Ricky- maybe you could do what I did regarding their interpretation of "recent"

Use any real good on line dictionary and copy and paste their definition of 'recent'
right into your argument in the appeal---the one that makes the strongest point you need-

I did this because a VA doc said my husband was "certainly at risk" for diabetes-in 1992 yet felt the VA never diagnosed him because he showed no symptoms (I sent them a long list and all of his chem charts)-and he died of DMII complications in 1994 - so I highlighted "Risk" as defined in Wikipedia-and
when it was pasted into the I-9 ,the type was bigger and darker than my Arial type and it sure sticks out- they can't miss it-
Obviously even with the few pages of the med recs this doc could determine his being at risk- so I made that point too-

WORDNET states this: RECENT

"The adjective recent has 3 meanings:

Meaning #1: being new in a time not long past


Meaning #2: of the immediate past or just previous to the present time
Synonym: late


Meaning #3: near to or not long before the present"


It IS a war of the words- "lack of recent disease"-ridiculous-
a stroke (CVA) is an event of brain damage-
even the mildest forms of brain ischemia can have profound long term consequences.The VA cannot cure brain trauma like this.It doesn't miraculously disappear.

Do you have the actual MRI results Ricky? or any narrative at all by a Neuro doctor regarding this CVA? As to what part of brain etc?
Are they giving you meds specifically regarding this CVA?(further proof of continued disability) any anti clotting meds?

Even Thiamine- (B 12) can be given for any neuropathy due to a stroke---

Berta, thanks for the advice. I hung my hat on the word "subacute" which in the medical world means - recent - within the past several days. Also hit them on the fact that stroke is not a disease but rather an injury to the brain resulting from a disease such DMII or hypertension. They service connected the CVA to my hypertension but failed to rate it properly. attached is my VA9 response to their denial. Its kind of long but maybe it can help someone else. I am open to any suggestions from all. Thanks girls and guys.


ITEM NUMBER ___ UNDER APPEAL: Entitlement to a 100 percent evaluation for Cerebrovascular Accident (CVA) for a period of six months.

BASIS FOR APPEAL:

1) VARO Montgomery clearly failed to apply 38 CFR Part 4 Section 4.124a in this issue under appeal. 38 CFR Part 4 Section 4.124a states the following:

8007 Brain, vessels, embolism of.

8008 Brain, vessels, thrombosis of.

8009 Brain, vessels, hemorrhage from:

Rate the vascular conditions under Codes 8007 through 8009,
for 6 months 100
Rate residuals, thereafter, minimum 10

2) VARO Montgomery has erroneously continued to lump the occurrence of my CVA and its residuals into one issue in an effort to escape the required rating and payment of disability compensation at the 100 percent level for six months. My 14 March 2005 letter clearly requested that new claims be opened for 1)CVA and 2) Dejerine-Roussy Syndrome. However, VA has continued to refer to this claim as residuals of CVA with Dejerine-Roussy Syndrome. Although service connection was granted with a 10 percent evaluation for residuals, 38 CFR, PART 4 SECTION 4.124a Schedule of ratings-neurological conditions and convulsive disorders (8008) Brain, vessels, thrombosis is clear in that it requires an initial rating of 100 percent for a period of six months, THEN a rating of residuals thereafter, minimum 10 percent.

3) 4.124a requires that two separate evaluations be established for disabilities covered under 8007-8009. The first requirement being an evaluation of 100 percent, for the occurrence of a CVA, followed by an evaluation of 10 to 100 percent for residuals. VA’s continued denial to allow for the 100 percent for six months for my CVA is based upon their determination that there is an “absence of a recently active disease, specifically, there is no evidence of any recent active process.” However, as you can see from the above schedule neither is required for the initial evaluation. There is no mention of Brain, vessels, thrombosis of with; or Brain, vessels, thrombosis of and. The 100 percent evaluation is simply based upon the occurrence of a CVA.

4) VA’s continued denials based upon the statements of “no signs of a recent or active disease” and “Specifically, there is no evidence of any recent active process” are totally unfounded and indicative of a system that is incapable of using available medical evidence to make just and sound decisions concerning disability claims.

a. The 24 January 2005 MRI report in support of this claim provides - images reveal a small oval shaped focus of restricted diffusion involving the right thalamus with associated faint increased T2/FLAIR signal. This is compatible with a small subacute right thalamic lacunar infract. Impression: A small oval shaped focus of restricted diffusion is seen within the right thalamus and is compatible with a subacute right thalamic lacune.


b. In understanding the medical evidence one has to understand the meanings of the words used in a medical sense. Subacute, according to various medical dictionaries (Dorland, Merck and Medterms.com) refers to an incident that is “rather recent or somewhat rapid changing.” Therefore, the use of the word subacute in my diagnosis provides that the CVA was recent (more likely than not within the past few days). Subacute is further described as the opposite of acute which means current or ongoing; and is to be used “somewhere” between acute and chronic. Chronic being described by the American medical community as long lasting normally meaning longer than three months. Various other definitions provide that Subacute is a recent onset, being between acute and chronic, more proximate to acute than chronic; normally within days. Although not needed per the rating schedule, the need of a “recent” medical occurrence by the rater has been met by the diagnosis of a Subacute right thalamic lacune due to a subacute right thalamic infract (recent right-sided thrombosis of the thalamus.) (lacune – lesion from an infract)

c. CVA or stroke is an injury to the brain and not a true disease in the medical sense. Medical research and opinion (Merck, Dorland, University of Virginia) provides that CVA is the resulting injury to the brain from an ongoing active disease such as hypertension, diabetes, atherosclerosis etc.. with those occurring of small lacune resulting more likely than not from hypertension. I have had hypertension and DMII for many years. During the examination at Crestwood Medical Center 20 January 2005 at which time I displayed the symptoms of stroke it was also determined that I had severe chronic hypertension which required immediate medical treatment. Although not required by the rating schedule, if the need of the original rater was that of an active disease then this requirement has also been meet as the hypertension was active at the time it caused the stroke.
d. CVA or stroke is a brain injury that according to medical authorities “evolves” and is not one of long lasting active process or one with recurrent process. Stroke (under 8008) begins with an infarct (thrombosis) resulting in the symptoms of one sided numbness, weakness of the limbs, blurred or double vision etc… evolution normally last from hours to several days. However, once the infarct is resolved, either medically or naturally, the stroke is considered to be completed and no other evolution of the CVA itself will exist beyond that point outside of those disabilities caused from the brain damage suffered during the evolution of the stroke. Cedars-Sinai Stroke Center describes this process as: Most strokes happen suddenly, develop quickly and damage the brain within minutes. In rarer cases, a stroke may continue to worsen for several hours to a day or two as a steadily enlarging area of the brain dies (stroke in evolution). Therefore the VA’s DRO’s statement that their denial was based upon “Specifically, there is no evidence of any recent active process” is ludicrous and not applicable to this claim as there is no known medical active process that continues upon completion of the stroke which happens within days of the occurrence outside of those caused by the resulting brain cell damage.

5) VARO Montgomery failed to review the medical evidence submitted with and in support of this claim. 38 CFR 4.6 provides that “Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board”. Their failure to fully review and weigh the medical evidence of record in this issue is evident by the omission from the SOC the Medical treatment records from the Crestwood MRI study; 1 August 2005 Statement from Dr. Cooke, my 14 March 2005 letter and my 18 October 2005 letter (with attached evidence), which was in direct response to VARO Montgomery’s 6 October 2005 Request for Information. However, they were quick to note in the SOC that they had been extremely thorough by listing that they used and reviewed laboratory results from Fox Army Hospital for the period 23 December 1996 through March 11 2005 and medical treatise extracts on diabetes complications and peripheral neuropathy in support of my NOD, NONE of which had anything to do with this issue or any issue in my current NOD. The DRO also listed that he had reviewed and used the same statement from DR. HICKS to help make a decision on the issues contained in the NOD. Statements of Dr. Hicks were also used by the original rater to initially deny the claim. I truly hope to speak with this Dr. HICKS some day but as of now I have never been treated by anyone named Dr. Hicks. The SOC is absent of any wording describing the weight, acceptability probative or non-probativeness of any of the medical evidence of record supporting my claim and it does contain any reference to medical evidence of record obtained or currently held by VARO or laws and regulations which would negate any of the medical evidence of record which supports my claim.

6) VARO Montgomery has rated this disability using the wrong rating code. In the SOC the RO supplied an extract from Section 4.124a emphasizing the requirements for a 100 percent rating for Disability Rating Code 8009 Brain vessels, hemorrhage. I did not suffer a hemorrhage of a brain vessel I suffered a thrombosis of a brain vessel. This is an inexcusable error that provides proof that the NOD was not read and evidence that the rater, DRO and Service Center Manager at the VARO Montgomery lack the competence needed to rate disabilities covered under 4.124a.

7) All medical evidence of record associated with this claim( 20 Jan Crestwood treatment records, 24 Jan 05 MRI, Statements of Dr. Cook and Dr. Boyer) supports the fact that a CVA occurred in late January 2005. The only evidence of record supporting the VA’s denial is the interpretation and opinion of a non-medical trained rating employee. As such the use of their “evidence” to deny the claim brings to light other issues of non-compliance of 38 CFR. Surely the VA is not trying to show their 1 piece of non-medical evidence meets the preponderance rule. In any game, even the games played by the VA, one Vs five, does not meet the common or legal definition of “preponderance of evidence”. The bottom line is that all evidence in this claim is without doubt in favor of the veteran and demands the approval of this claim.

8) Not only does the evidence support the claim for the 100 percent evaluation, the veteran filed a timely claim for the CVA. Although a time limit is not specified by 38 CFR Part 4 Section 4.124a it would be understandable that if the veteran filed a claim for a CVA which had occurred over a year or more ago that the passage of an extreme amount of time could possibly negate the need for the 100 percent evaluation. However, in this case the veteran filed the claim less than 45 days after the occurrence and confirmed diagnosis of the CVA. Various sections of 38 CFR were written to support the veteran in times of emergency need. Section 4.124a is one of those sections designed to assist the veteran and his family upon the occurrence and during the worst six months of the disability. One would think that VA would respond by following those regulatory requirements to support the veteran. However, I now find my self, 13 months post CVA, having to deal with one of the most severe residuals of CVA that becomes worse with stress, still fighting with the VA over a very well medically documented claim that should have resulted in an approved award over a year ago.


ACTIONS TO BE TAKEN BY THE BOARD: Based upon the fact that all medical evidence of record in this issue provides undisputable proof which meets the regulatory requirements of 38 CFR, Part 4, Section 4.124a Disability Code 8008 for a 100 percent rating for six months and proof beyond a reasonable doubt that the CVA occurred during the 20 January 2005 hospital episode, I request that the Board issue a final rating decision without remand on this claim and establish and evaluation of 100 percent for a period of six months for this disability with an effective date of March 2005 (date of claim) through August 2005

Yes- the improper rating codes-good that you highlighted this as this is art of their problem-
a BIG part-

They see diagnostic codes in the med recs or try to determine them based on medical evidence ad -if they use the wrong one- it can continuously support the wrong decision.

Ricky- you sure have revealed your anger at their incompetence here-

This appeal will hopefully be resolved at the VARO level-anyhow-

I think this statement is a little strong-

"and evidence that the rater, DRO and Service Center Manager at the VARO Montgomery lack the competence needed to rate disabilities covered under 4.124a."

I would suggest that you put instead that the rater, the DRO and the VSM failed to properly apply the proper rating schedule in 38 CFR 4.124 (a) and failed to adequately follow M21-1 as well.

Dont get me wrong- I make strong statements too to the VA-

but I try to tell them they are idiots in a diplomatic way-

by clearly telling them and referencing-as you did- the regs they have broken or how they misinterpreted medical facts.
For example-
One VA doctor's statement -she questioned my interpretation of a known medical symbol- I rebutted by simply saying "I use known medical texts and dictionaries such as Medilexicon, also a cryptologist from the USAF decifered many of the veteran's handwritten medical records. It says what it says and the VA examiner's statement as to interpreting this specific medical abbreviation is wrong. I succeeded in my FTCA claim by studying VA's medical symbols in the deceased veteran's medical record."

Maybe some of you remember that I found DVD in Rod's records 2 years ago and didn't know what the heck it meant. It meant Diabetic Vascular disease.
The VA doc said it meant something else-it doesn't .



That shut them up on that.

Other than the above statement ----- and maybe others will say Let it stand as it is----
I think it is perfect and I certainly understand the residuals of strokes.

They needed a good medical lesson in CVAs and you sure gave it to them.

Ricky,

You made a statement in another post that keeps coming to my mind. It was something to the effect that something in your medical evidence was a medical statement not a mere medical opinion. Can you explain that further? Do you know of something in the regs or something else that distinguishes between the two and gives reason for stating it like that?

Morgan, I do not know of anything in the regs that would distinguish between them. However, after having to read hundreds upon hundreds of pages of medical stuff and a discussion with my neurologist that is what I came up with. The conversation came up when I requested my treatment records. He said that the medical treatment records contained statements of medical fact based upon scientific origin. He told me that a statement issued by him such as the one he gave me for service connection for the CVA was his opinion. In that opinion he provided the medical basis for his opinion such as hypertension = CVA, therefore based upon medical fact it was his opinion that my CVA was directly connected to my already service connected hypertension.

The post you are talking about is my VA9 statements to the fact that VA denied my request for an increase for my back problem. In the C&P results the doctor stated "his forward flexion is limited to 45 degrees". That was a fact based upon the appropriate and required VA tools were used to determine the amount or range of motion. It was not his opinion such as "moderate limited movement was seen" etc..... My point was that scientific methods were used to come up with the figure 45 and there was no room for interpertation by the rater as they said in the rating decision "the results of the C&P exam had been interperted differently by them therefore, a 20 percent rating was not warranted.

Bottom line is I guess it is simply a play on words. If it is contained in the medical treatment records then it is normally based upon approved medical doctrine, if you get a statement that says "in my opinion" then it is an opinion which the rater can and will twist to deny your claim. Hey it makes a good argument does it not. I will research the issue and report back after I get my VA9 on the road to Montgomery.

Berta, good point and I will tone it down a little bit. That statement came after I emailed the VSM asking for a meeting. His reply (if it was his probably some worker bee) said that I had been provided all the services required to be provided and issued a statement of the case which would allow me to contiue my appeal if I really felt that the appeal was needed. He also said that if I wanted to meet with any of his staff all I had to do was request a hearing via the VA9 and he would act on it immediately. I responded to the email and asked why he had provided bad info in that the hearing requested via the VA9 would be at the BVA level so his intent must have been to confuse me and deny me my right to a hearing at the VARO. that was 3 weeks ago and no response as of yet. Just a little bad blood between us. hahahaha

That makes sense, Ricky. It is a very good argument and the better we get at playing these words, the better we can stand up to them for doing the same.

I have enjoyed your perspective on this thing called non-adversarial adjudication.

Can I claim CUE in the VA9 that I am now submitting? If so what effect will it have on my appeal? ie...will it gurantee a remand or could the board say yep cue happened and we are going to fix it. The below is my thinking.

In my my Mar 05 claim for 100 percent for six months for the CVA 4.124a (8008) I asked that two new claims be opened. 1-cva, 2-Dejerine-Roussy syndrome (residuals from the stroke).

I asked for both at the same time cause I knew that at the end of six month period I would have to submitt a claim for the residuals. In the rating decision they rated it as "residuals of CVA with Dejerine-Roussy syndrome and gave me a 10 percent rating. They said the 100 percent was denied due to a lack of a recent and active disease.

Now 8008 says they have to rate the cva for 100 percent for six months. Then rate the residuals at least 10 percent. The way I see it they did not even discuss my claim for the cva as evidenced by their rating decision letter which said "residuals of cva with dejerine-roussy syndrome. Therefore, they failed to open and rate my claim for the cva and improper application of 4.124A. is this cue?

Although they did attempt to rate the residuals they applied the generic 10 percent rating. The dejerine-roussy syndrome was the residuals which is why I do not understand both the rater and the DRO when they state "residuals of cva with dejerine-roussy syndrome. In my request for the dejerine-roussy syndrome and the medical treatment records, dr. statements and the CP exam, all provided that the syndrome affected the left side of the face, the left arm and hand and the left leg and foot. No where in the rating decision or de novo review does it say they gave me or denied me a rating for the face, arm/hand or leg/foot. 38 CFR provides that all disabilities resulting from a disease or injury such as cva are to be rated seperatly. Therefore, I should have received a rating or denial for my face, hand and foot. who knows maybe they gave me 3.3333 percent for each one hahahha. They did not do this. Is this cue?

I feel that both are cue's. They totaly failed to properly apply 4.124a and rate/deny the cva and did not even discuss my claim for the cva in the rating decision. Although they did stated the 100 percent was not warranted due to the absense of a recent and active disease (which is not a requirement of 8008) that was discussed under the rating for residuals of CVA with dejerine roussy syndrome. although they did provide a 10 percent rating for residuals there was no discussion as to whether it was for my face, hand or foot.

Thanks Ricky

I feel that it is.

Ricky- if you have "loss of use of" the affected hand and /or foot, that could be ratable under 38 CFR 1114 k--
there are many residuals of a stroke-

and it appears they did overlook them in your decision.

If a veteran has functional loss of use of hand or foot- due to SC -the VA should rate this as Special Monthly Compensation.

Loss of use of hand is defined as inability to grasp coins, use tools, etc. Loss of use of foot can be that a stroke has caused severe balance problems and numbness due to neuropathy in foot causes additional disability.

There is a lot of CUE info in my blog at hadit.

A CUE can only be called on a past final VA decision-when a vet is still in the appeals process- this is the time to raise all issues of legal errors in the adjudication of their claim.

A final decision is one that was never NOdded in the year after the decision-or even if Nodded and then denied and never appealled -this is a final VA decision.Therefore -because it is a final VA decision ,it can only be changed by findings of CUE-clear and umistakable error-in the misapplication of legal regs and criteria in 38 CFR.

Sometimes the VA itself can CUE itself-but that is extremely rare.
It happened to me two years ago-
I had CUED something and was denied and let it go-like a dope----never appealed it-
Regional Counsel found the CUE when I reopened my claim and the VA rectified it.

At this point I believe your entire claim is still in the appeals stage and these issues can be raised on appeal-

I believe you would have the right- if you have sent them the I-9 already, to add an addendem to it if you feel your I-9 did not cover all issues-
They need to know exactly what residuals you have-
I am curious as to what Diagostic code they gave you for 10% "residuals".

In my husband's case they rated him at 100% for "residuals" under upper and lower extremities and brain
deficits but the rating codes were all wrong.10% for residuals seems ridiculous when one has had brain damage -which is what a stroke really is.