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@  chuck57thSig : (30 October 2014 - 05:51 PM) Sarti07, It's Under (Va Claims And Research) Http://www.hadit.com/forums/topic/59064-Prep-For-Decision-Phaseprovisional-Rating/
@  sarti07 : (30 October 2014 - 02:43 PM) Hello, I Just Posted A Topic About Prep For Decision.. I Have No Idea Where To Find It! Lol
@  carlie : (28 October 2014 - 03:42 PM) Reelnrod - Just Pick A Topic That Corresponds To Your Stuff And Post It
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@  red : (27 October 2014 - 12:14 PM) Anyone Heard Any Updates On Flying Space A For 100% Disabled Vets?
@  maxwell18 : (27 October 2014 - 10:49 AM) I Did Contact My Congressman Jeff Miller, Let's See What Will Happen
@  maxwell18 : (27 October 2014 - 10:48 AM) @britton
@  Tbird : (27 October 2014 - 04:26 AM) Thank You Larry S For Your Contribution To Our Funding Campaign
@  britton : (26 October 2014 - 07:33 PM) Everyone (Veteran's) Should Recive A Memo From The Dept Of Veterans Affairs ****notification Of Medication Scheduling Change****
@  britton : (26 October 2014 - 07:24 PM) Meds That Are Consider To Be Schedule Ii Narcotic...pain Meds Like Hydrocodone Ectt Ect,,
@  britton : (26 October 2014 - 07:22 PM) As I Understand We Only Can See The Va Dr's Every 28 Days To Renew Our Prescription Meds A New Law Went Into Effect Oct 6Th 2014....i Only See Problems Problems Problems With This...grrrrr
@  maxwell18 : (26 October 2014 - 03:52 PM) This Is Maxwell18 Would The Person Who Contacted Me (Vern2) Please Contact Me Again, I Attemped To E Mail You It Returned No Reply. Thanks
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@  Notorious Kelly : (25 October 2014 - 07:53 PM) Max- Contact Your Congressman- Dea Has Got Docs So Cowed They're Afraid To Dispense Tylenol
@  maxwell18 : (25 October 2014 - 07:10 PM) Anybody Having Problems Getting Pain Pills (Norco) Filled Us Navy Base (Nas Whiting Fld Milton Fl). Had A Prescription For 90 Norco Pills For 30 Days, 3 A Day For Pain, Got 30 For 30 Days. That Will Last Me 10 Days. Another Thing That Our Government Is Screwing With Us. I Don't Know What To Do, Don't Want To To The Va, Don't Know What They Will Either. Anybody Goy Any Ideas. 
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Appeal Status


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19 replies to this topic

#1 luvHIM

 
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Posted 18 July 2007 - 05:17 PM

My question is related to my claim that is in appeal status. I received a call from NSO (who BTW is not local and local chapter usually can't answer questions for me because they "don't know") informing me that my C-file is with the "Appeals Officer." NSO went on to suggest that this is good because "we" are right where we should be at this point. Stated "Appeals Officer" will review the file and has the authority to decide the claim, if I have a case, without the need for a hearing. I've been waiting to be assigned to the list for a travel board hearing. Did not make the list this year but was informed I should be on it for next January 08.

So, my question is: how often does an Appeals Officer or DRO, if the terminology is interchangeable, decide a claim in favor of the veteran without the need for a BVA hearing?

I've searched the hadit.com website in order to avoid a new thread on an old topic. But I was unsuccessful in finding anything that specifically addressed my question. So, if this is a repeat question, in advance, please forgive me. Thanks for your assistance.

Edited by luvHIM, 18 July 2007 - 05:20 PM.


#2 vaf

 
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Posted 18 July 2007 - 07:34 PM

Personally, I believe a DRO reconsideration or review is a waste of time, and the thing to do is to get the claim out of the VARO. Locally at our VARO, DRO's just cut and paste the original decision and deny it again.

The Board, and then the Court of Veterans Appeals are the best chance for remands, which would then for the most part go to the Appeals Management Center, where we have received more justice.

Of course, if you have the notion to hire an attorney after a claim denial and your notice of disagreement, you may get his/her assistance in trying to persuade the DRO decision to go in your favor. This is an avenue not previously available to veterans, and may make all the difference in the world. In my husband's case, we haven't had that opportunity yet, because all our appeals have pre-existed the new legislation allowing attorney representation after the first NOD.

If you're in a position where you can wait out the process, don't waste time with a DRO. Others may disagree, but I do think that the probability of a successful DRO review differs from VARO to VARO.

#3 luvHIM

 
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Posted 18 July 2007 - 08:07 PM

Personally, I believe a DRO reconsideration or review is a waste of time, and the thing to do is to get the claim out of the VARO. Locally at our VARO, DRO's just cut and paste the original decision and deny it again.

The Board, and then the Court of Veterans Appeals are the best chance for remands, which would then for the most part go to the Appeals Management Center, where we have received more justice.

Of course, if you have the notion to hire an attorney after a claim denial and your notice of disagreement, you may get his/her assistance in trying to persuade the DRO decision to go in your favor. This is an avenue not previously available to veterans, and may make all the difference in the world. In my husband's case, we haven't had that opportunity yet, because all our appeals have pre-existed the new legislation allowing attorney representation after the first NOD.

If you're in a position where you can wait out the process, don't waste time with a DRO. Others may disagree, but I do think that the probability of a successful DRO review differs from VARO to VARO.



I appreciate your response. The call from my NSO and what he had to say raised an eyebrow because I filed a Form 9 in November 2005. I have already been assigned a docket number and have been waiting to be placed on the list to go before the traveling BVA. I have already been through the whole VARO reconsideration/DRO process. I really am not sure what he (NSO) is talking about. I did check an area on this site that suggested that the Appeals Team has people in place to review a Claim before it goes to the BVA. It stated that a decision can be made on the Claim in appeal status eliminating the need for a veteran to appear before the BVA, if the claim is ajudicated favorably and the veteran is awarded his/her benefits. It is all becoming a little too much to absorb. But I do thank you for responding.

#4 vaf

 
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Posted 18 July 2007 - 08:55 PM

Whatever they want to call it, if it's happening at the VARO that originally denied the claim, you're wasting your time in my opinion. Do you have an attorney?

#5 JSM754

 
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Posted 18 July 2007 - 11:17 PM

My question is related to my claim that is in appeal status. I received a call from NSO (who BTW is not local and local chapter usually can't answer questions for me because they "don't know") informing me that my C-file is with the "Appeals Officer." NSO went on to suggest that this is good because "we" are right where we should be at this point. Stated "Appeals Officer" will review the file and has the authority to decide the claim, if I have a case, without the need for a hearing. I've been waiting to be assigned to the list for a travel board hearing. Did not make the list this year but was informed I should be on it for next January 08.

So, my question is: how often does an Appeals Officer or DRO, if the terminology is interchangeable, decide a claim in favor of the veteran without the need for a BVA hearing?

I've searched the hadit.com website in order to avoid a new thread on an old topic. But I was unsuccessful in finding anything that specifically addressed my question. So, if this is a repeat question, in advance, please forgive me. Thanks for your assistance.

I had a FLASHBACK while reading your question. If you reply please explain what the Heck does "BTW" mean. At any rate, I find it hard to believe that you are waiting on the Traveling Board, has no one told you about Video Conferencing? The Board is in Washingon and you are where you are. Your NSO never told you about this Option.??? Be that as it may,the Appeals Team/DRO, are indeed one in the same. Take a Fool's Advice, if you are not Satisfied with the Decision of the DRO, continue with your Issue on Appeal.

#6 Berta

 
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Posted 19 July 2007 - 05:26 AM

"So, my question is: how often does an Appeals Officer or DRO, if the terminology is interchangeable, decide a claim in favor of the veteran without the need for a BVA hearing?"


More often than we think---

and we have no way to get publiv records of how many claims are awarded at RO level and often due to DRO review-

But it boils down to one single thing-

medical evidence (and making sure the VA considers that evidence)

I have a local vet claim here-
the RO listed 8 pieces of evidence.

They refered to the C & P results and one other document he sent-

within what they listed but did NOT consider -in the narrative- is the key evidence that should have awarded his claim.

When I got a so called de novo DRO review (verbatim copy and paste job)
I raised such a ruckus I got an immediate conference between my rep in Buffalo and the DRO.

He (the rep) claims he presnted my IMos and or evidence and highlighted it all to the DRO.He said he was sure he could get an award from the DRO with the evidence I had.

The resulting SSOC states none of his rendition even happened at all- and then my IMOs were missing.

Most claimants however, getting a DRO conference and have a POA in their behalf-will make out better than I did- in over 4 years the VA has still failed -in any SSOC etc -to acknowledge and address my IMOs-
however they are doing that now-

I posted the DRO job description here many times-
I say hold them to it and NEVER accept a copy and paste "de Novo Review".

And contact the Director and/or the VSM and formally complain about a sameo sameo review-

I dont really understand the status of the claim here -Luvhim-

you are docketed at the BVA yet apparently the VA is still considering some evidence you sent since the BVA transfer?

"I did check an area on this site that suggested that the Appeals Team has people in place to review a Claim before it goes to the BVA. It stated that a decision can be made on the Claim in appeal status eliminating the need for a veteran to appear before the BVA, if the claim is ajudicated favorably and the veteran is awarded his/her benefits."

True- but the VA -when a vet responds to an SSOC -used to consider the response and any further evidence-
these days they seem to ignore SSOC responses and tell the claimant -after BVA transfer-to send any addditional evidence directly to the BVA and not the RO-adding more problems to the backlog and getting out of RO responsibility-I dont remember any reg change that said this is supposed to happen these days.

I say send it to both places-and I highly recommend getting a decision at the RO level- if you can- because you might sit on a docket for 1-2 years and then only find out the BVA is remanding the whole thing back to the same VARO due to errors they made in the first place.

SOmeone caught an error in the 6 months they passed my claim from deck to desk in early 2006-
They sent it to the BVA and I got it right back-
due to legal errors but the VA filed a Motion at BVA for something else I had there-they asked for reconsideration.


Then the VA said they themselves would raise a CUE issue -a CUE they made- on another claim I have pending-
So my point is- and unfortunately I have always have to get tough with them-
they DO start to READ it all and the RO can make a favorable decision-after docketing at the BVA.If the vet and the rep aggressively prosecutes the claim-

One of my last two claims was docketed at the BVA in 1996 but I won this claim at the RO months later.DAV asked me to withdraw the appeal due to the award and of course I did that.

I was reading the VBM yesterday and NVLSP highly recommends that any agent, advocate, representative or attorney who represents a vet must aggressively prosecute to claim-
it doesn't mean to get angry and scream in their face- it means to
confidently state the claimant's position and evidence in a strong way- that leaves
the RO with no way out if they attempt to deny on a faulty basis.

And if a rep says they will rep you with a DRO and do this and that and then they dont- you can file a complaint with the General Counsel if their negligence has hindered your claim.








Isnt the video conferencing information on the I-9? I thought it was.

Edited by Berta, 19 July 2007 - 05:35 AM.


#7 luvHIM

 
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Posted 19 July 2007 - 02:29 PM

I had a FLASHBACK while reading your question. If you reply please explain what the Heck does "BTW" mean. At any rate, I find it hard to believe that you are waiting on the Traveling Board, has no one told you about Video Conferencing? The Board is in Washingon and you are where you are. Your NSO never told you about this Option.??? Be that as it may,the Appeals Team/DRO, are indeed one in the same. Take a Fool's Advice, if you are not Satisfied with the Decision of the DRO, continue with your Issue on Appeal.



BTW is "By The Way"

Yes, Video Conferencing was brought up and it was elected. However, when I called the 1-800 in early 2006 I was told that I was being scheduled to go before the traveling BVA. As far as my NSO is concerned, it is not a loving relationship. He was assigned to me by the PHX DAV National Service Office. I have never even met him. Back in 2005 when I filed my form 9, he gave me the impression that I did not even have a "VALID" claim and came across as if he was on the side of the VARO. Well, long story short, I went through my local chapter and filed a complaint against him with the supervisor in PHX. It didn't change him from being the one assigned to my case. At any rate, I have asked several times how I can expedite the process of going before the BVA. Apparently, it is too late to request a video conference because it has already been submitted as a request for a travel board hearing.

Lastly, I do not intend to quit or give up. I have the IMO of two private rheumatologists (one of which use to be the Chief of Rheumatology at the VAMC I'm enrolled at), the other is my current treating rheumatologist. I have three MD's in support of my claim for rate increase and I am on SSD based on the findings in my VA medical records. In fact, my last rating exam revealed that the rating examiner concurred with the VA rheumatologist that my "medical condition "most likely" began in service and radiographic evidence would not have appeared at that time, as the disease is progressive." I was STILL denied a rate increase and continued at 0%. So, NO...I don't intend to give up this fight.

Edited by luvHIM, 19 July 2007 - 02:31 PM.


#8 luvHIM

 
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Posted 19 July 2007 - 03:14 PM

Berta,

Thanks for your reply. I'm new to the forum and have never really introduced myself or gave a brief on my situation.

So, here it is. I was service-connected in 1984 for a back injury at 0%. I was married to military, as well, and continued receiving treatment for my low back pain that was progressing to my thighs, buttocks and feet. Condition seem to go into some sort of remission and I simply continued to use OTC for the intermittent flares. In 2000, I ended up in at a Urgent care facility with extreme neck pain for no apparent reason. In 2001, I had another reoccurring episode with my back and leg pain. This time my employer sent me to there docs. I was x-rayed and had physical therapy for 4 weeks. In 2003, I couldn't ambulate at all. My brother in law rushed me to the VAMC where I was diagnosed with Ankylosing Spondylitis and told that my SED/CRP was elevated; I tested positive for HLA-B27; my SI (sacroiliac joints) were fused bilaterally, sclerotic and eroding; I had severe osteoarthritis of the knees bilaterally and the cervical spine at C3-C4; and both shoulders showed synovitis, tendonitis and bursitis with a 50% tear in the right shoulder. I had a positive TB skin test but am not with the disease but on INH nonetheless. The condition is a progressive condition, which explains why it was not detected in service. Additionally, it is not "supposedly" common among women. Rating examiner noted that it would have been a difficult diagnosis to make and probably not made due to my gender.

Since that time (2003) radiographic evidence presented (2005-2007) active disease and progressing. But, for whatever reason, VA rheumatologist jumped on a different band wagon and began treating me for secondary Fibromyalgia and nothing else. So, I went outside the VA and have a new rheum treating the Ankylosing Spondylitis.

I filed a claim for a rate increase for sc back injury that the VA was describing as lumbosacral strain, chronic. Claim in 2003 was denied. I filed a motion to reconsider. It was again denied in 2004 (after the rating exam concurrence). I filed an NOD and requested a DRO hearing with my rep. Nothing. Then in 09/2005, I received an SOC and attached form 9. The SOC stated that there was a de Novo Review in July 2005. At any rate, I filed the attached form 9 to appeal in October 2005. I received a docket number in November 2005, which is when VARO said they received the form 9.

Now hear I have sat for almost two years, since the filing of the form 9, waiting on a hearing before the BVA. I have never received a SSOC. I have never had a hearing or meeting with the DRO and my vet rep. Nothing. When I inquire about the process, I get a bunch of rhetoric that makes no sense.

According to the Department of Veterans Affairs, Director Compensation and Pension Benefits Administration, I do have a "Valid" claim. Additionally, I have had the support of a LTC out of Washington and supplied all correspondence in support of my claim. My previous post to JSM754, indicates the IMO's I have supplied. Not to mentiion, I am also enrolled in the GERI chronic pain managment clinic. I was awarded SSD and declared Totally and Permanently disabled with the decision based in whole on my VAMCMR.

It appears that no matter how many of my physicians (VA and otherwise) have stressed the importance of understanding that this disease is progressive and can take up to 20 plus years (in some cases) before radiographic evidence appears abnormal, the VARO is still denying me a rate increase because they state there is no nexus. But according to Part 4 4.66, which states the lumbosacral and sacroilliac joints are to be treated as one anatomical region for rating purposes; and DeLuca v Brown (pain on motion) they are WRONG.

What makes it so bad is that I have a copy of my friend's decision out of WA and he had the EXACT same scenario and is now receiving 100%. He was sc for lumboscral strain. Found out he had Ankylosing Spondylitis; and was awarded sc for lumbosacral strain due to Ankylosing Spondylitis. So you talk about your VARO inconsistencies. I know all too well.

Again, thanks to all of you for responding. It is greatly appreciated. Berta, I will take your advice on possibly filing a complaint with General Counsel. I do believe my DAV rep has been a hindrance in my claim by his lack of support and or advisement on properly developing my claim.

Edited by luvHIM, 19 July 2007 - 03:15 PM.


#9 Berta

 
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Posted 20 July 2007 - 05:56 AM

This is most concerning to me. Glad you told us the whole 9 yards-

"Claim in 2003 was denied"

I am going to assume this claim was filed after Nov 2000?

If so

Did you receive a legal VCAA letter that clearly stated what you needed to send to the VA?

Did your rep give you a TDIU form 21 -8940 to make formal application for TDIU (100% rate) the SSA records should support that if solely for the Sc conditions.

I hope your rep knows that a vet can request TDIU even if they are "0" or NSC-and if the medical evidence warrants it the VA will award TDIU.

I helped a vet with NAda sc gets TDIU in 4 months.

The BVA I-9--I suggest you call the BVA-

1-202 565-5436-or the number they might have put on any correspondence to you-

and see what the status of the appeal is---if that number doesnt help I have plenty more for the BVA but I think that is the prime number I used last year when they illegally transferred me to the BVA.

The De Novo review- did they send you the actual results or did they fail to send a SSOC on the de novo review?

Has the VA acknowledged in any way at all -ALL of your medical evidence?

Sounds like the run a round I have gotten up here in NY-


Matter of fact I have to get off here and prepare for a potential battle today with my POA-

You might not have gotten a legal VCAA letter-and the rep knows it and this allowed him to sit back and not be supportive because he knows it will take years for a remand to occur-

I am concerned as to the status of the appeal- if your VCAA notice was deficient you might get that back fast- and you could use my template to do it-

hard to say- the original claim had to fall under auspices of the VCAA-it appears that it should have- what is date you filed that claim-that they denied in 2003?

#10 luvHIM

 
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Posted 20 July 2007 - 02:33 PM

This is most concerning to me. Glad you told us the whole 9 yards-

"Claim in 2003 was denied"

I am going to assume this claim was filed after Nov 2000?

If so

Did you receive a legal VCAA letter that clearly stated what you needed to send to the VA?

Did your rep give you a TDIU form 21 -8940 to make formal application for TDIU (100% rate) the SSA records should support that if solely for the Sc conditions.

I hope your rep knows that a vet can request TDIU even if they are "0" or NSC-and if the medical evidence warrants it the VA will award TDIU.

I helped a vet with NAda sc gets TDIU in 4 months.

The BVA I-9--I suggest you call the BVA-

1-202 565-5436-or the number they might have put on any correspondence to you-

and see what the status of the appeal is---if that number doesnt help I have plenty more for the BVA but I think that is the prime number I used last year when they illegally transferred me to the BVA.

The De Novo review- did they send you the actual results or did they fail to send a SSOC on the de novo review?

Has the VA acknowledged in any way at all -ALL of your medical evidence?

Sounds like the run a round I have gotten up here in NY-


Matter of fact I have to get off here and prepare for a potential battle today with my POA-

You might not have gotten a legal VCAA letter-and the rep knows it and this allowed him to sit back and not be supportive because he knows it will take years for a remand to occur-

I am concerned as to the status of the appeal- if your VCAA notice was deficient you might get that back fast- and you could use my template to do it-

hard to say- the original claim had to fall under auspices of the VCAA-it appears that it should have- what is date you filed that claim-that they denied in 2003?



I am going to assume this claim was filed after Nov 2000?
YES, it was. I filed the claim in May and VARO received the claim 05/29/2003.

Did you receive a legal VCAA letter that clearly stated what you needed to send to the VA? If that is the same as the "duty to assist" letter, then I did receive them. However, I always addressed these letters with my SO (at initial filing in May it was Arizona Department of Veterans Services). But my rep always said "don't worry about them because they are system generated and VARO can review your VA medical records." I merely took her at her word on the matter. I did, however, provide her with a list of all medical treating facilities w/addresses. She even returned that to me saying it wasn't necessary.

Did your rep give you a TDIU form 21 -8940 to make formal application for TDIU (100% rate) the SSA records should support that if solely for the Sc conditions.
NO! In fact, I just recently submitted a TDIU form 21-8940 on my own, after visiting this site. My SSA decision letter states that I was awarded disability on the basis of "severe" Ankylosing Spondylitis; and chronic low back pain.

I hope your rep knows that a vet can request TDIU even if they are "0" or NSC-and if the medical evidence warrants it the VA will award TDIU. I don't even know if my rep cares. Like I said, there has been no assistance in developing my claim from either of the veteran service organizations (I now have DAV).

The BVA I-9--I suggest you call the BVA- I have called the number you provided and was told that they DO NOT have my claim file. It is still at the PHX VARO. They did show a docket number for me but have not received the file, as yet, so had no other status info to give me. I was advised to call the PHX VARO.

The De Novo review- did they send you the actual results or did they fail to send a SSOC on the de novo review?

I have never received anything on the actual results of the de novo review, other than the SOC I mentioned dated September 2005. It was merely a "copy and paste" of the decision letter.

Has the VA acknowledged in any way at all -ALL of your medical evidence?

According to LTC P, they acknowledged my medical evidence when the rated me for Ankylosing Spondylitis, instead of the lumbosacral strain.

I applied for rate increase for the worsening of my sc medical condition and the VARO rated my claim on residual Ankylosing Spondylitis. Totally wrong and incorrect adjudication.

In the SOC it reads, "Although your BACK CONDITION is severe in nature, your problems are the result of your ankylosing spondylitis, which is not related to or caused by service. Therefore, in the absence of any evidence that your LUMBAR SPINE condition has worsened your 0 percent evaluation of CHRONIC lumbosacral strain is confirmed and continued."

NOW CORRECT ME IF I'M WRONG BUT THE LUMBAR SPINE/LUMBOSACRAL REGION IS YOUR BACK. HOW CAN ONE PROBLEM EXIST WITHOUT THE OTHER BEING A PROBLEM? ANKYLOSING SPONDYLITIS (AS) AFFECTS ON THE LUMBOSACRAL SPINE IS A CLASSIC SYMPTOM. IN FACT, A PERSON WOULDN'T EVEN GET AN AS
DX IF IT WEREN'T FOR THE RADIOGRAHIC EVIDENCE OF FUSION OF THE SACROILIAC JOINTS W/EVIDENCE OF LUMBAR DEGENERATION (WHICH ARE BOTH MEDICALLY DOCUMENTED ALONG WITH RADIOGRAPHIC PROOF IN MY VAMR). IN ADDITION, BECAUSE THE SI JOINTS ARE WEIGHT BEARING JOINTS IT CAUSES EXCESSIVE STRAIN TO THE LUMBAR SPINE. I JUST UNDERWENT A HYSTERECTOMY ON JUNE 5, 2007 HOPING TO RELIEVE SOME OF THE PELVIC/GROIN PAIN IT WAS SO BAD. MY RHEUMS ARE SO AMAZED BY WHAT THE VARO IS OVERLOOKING HERE, IT IS ALMOST LAUGHABLE. IT IS ABSOLUTELY CRAZY. I TELL YOU, IT MAKES NO DARN SENSE TO ANYONE BUT THE PHX VARO.

http://www.medifocus...RH001/index.php here is a website if you would like to know a little more about AS. you may get some future vets your way with the same battle I am having.

You might not have gotten a legal VCAA letter-and the rep knows it and this allowed him to sit back and not be supportive because he knows it will take years for a remand to occur-

What does this mean, exactly. Can you break it down for me?

I am concerned as to the status of the appeal- if your VCAA notice was deficient you might get that back fast- and you could use my template to do it-

I'm not clear on this statement either. Can you elaborate?

the original claim had to fall under auspices of the VCAA-it appears that it should have- what is date you filed that claim-that they denied in 2003?
Again, it was received by them 05/29/2003.

I know there is a lot to read here. But I do appreciate you taking the time and getting back to my posts. I know there is something that can be done. I just don't know what it is and where to begin with the process. Thanks very much for your help, or at least getting me pointed in the right direction.

Edited by luvHIM, 20 July 2007 - 03:53 PM.


#11 Berta

 
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Posted 20 July 2007 - 03:07 PM

Sounds like you got the generic VCAA letter like I did-

If so you might be able to get a remand in weeks not years and get your claim moving-

Did the VCAA letter-yes that was it- specifically state in CAPS or underlined or in highlighted typing- exactly what evidence they needed from you?

It is a statement well beyond the stuff you mentioned -on the VCAA form- this is just a form letter that the VA is supposed to type onto giving you statement of what evidence you need to send them- specifically geared to your claim and also a Dingess Hartman Statement-possible EED and rating etc-

I think you fall into Dingess Hartman-not sure-
I did- filed in Jan Feb 2003- never got it either-


there is a article under the search feature I did re Dingess Hartman-and also there is a real VCAA letter here somewhere-

if your claim was transferred to the BVA and the VARO failed to send you a legal VCAA letter -you can tell the BVA this and get the claim remanded in weeks-
at least it worked for me----

Make sure that the VCAA letter was illegal-

Did they acknowledge you medical evidence at all?

I suggest also you send an Iris inquery to the VSM or Director of this RO (at the VA web site) make it a service complaint-
Tell them you want a new de novo review and that they should CUE the last review as it was a copy paste sameo sameo job or words to that affect-

I got one of those, raised hell through Iris and got another review.

But the DRO still didnt know how to read-long story but check out the posts here under VCAA-use the search feature at the top and make sure you put on the hadit button- then use the google for the web to get more info on the VCAA.

I cannot tell if you got a real one or not-
you can check it our here under the search-

The lack of legal VCAA letters is the biggest VARO scam since Nehmer retro snookering tactics.

SOs and reps are helping that scam to be perpetuated.


Also you often have to tell them like they are ten years old how-medically one disabilitiy is connected to another one-
this could take a very strong medical statement in the long run but the VCAA letter should have advised you to get an independent medical opinion if that is what is needed to nexus-connect all this stuff.

You have only about 3 months from the BVA transfer letter to request remand due to violation of the VCAA- if that is the case here-

otherwise the BVA will docket at some point and the remand will take years-and more than likely they would remand due to VCAA violation

GOOD FOR YOU- the TDIU claim is filed- have you checked at 800-827-1000 to make sure they have it? that could take a week or two more for it to get from mail room to the PCs there.


This sounds like my RO Buffalo- but probably not-

Edited by Berta, 20 July 2007 - 03:12 PM.


#12 Vike17

 
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Posted 21 July 2007 - 10:05 AM

luvHIM,

"If that is the same as the "duty to assist" letter, then I did receive them. However, I always addressed these letters with my SO (at initial filing in May it was Arizona Department of Veterans Services). But my rep always said "don't worry about them because they are system generated and VARO can review your VA medical records." I merely took her at her word on the matter. I did, however, provide her with a list of all medical treating facilities w/addresses. She even returned that to me saying it wasn't necessary."

The VCAA letter is specific to your claim. What your rep probably meant was that certain portions of the letter are computer generated. For example, The VCAA letter probably listed each condition you claimed and then listed what specific evidence what was needed by VA to grant that claim. That portion of the letter stating the specific evidence you needed sometimes comes from pre-programed sentences that are then put in the letter, such as "Pharmacy prescription records" ect... One must keep in mind that there isn't a VSR at your RO actually typing every single word of that letter for each and every claim. However, the VSR that produces the VCAA letters do go through each claim to see what evidence would be needed for that particular claim and then list it mostly from pre-programmed sentences and paragraphs.

"Now hear I have sat for almost two years, since the filing of the form 9, waiting on a hearing before the BVA. I have never received a SSOC. I have never had a hearing or meeting with the DRO and my vet rep. Nothing. When I inquire about the process, I get a bunch of rhetoric that makes no sense."

You won't receive a SSOC from the RO if you requested a BVA hearing. However, if you requested a hearing through the DRO review you should have had a hearing and either been issued a SOC/SSOC. If I'm not mistaken, your claims folder will remain at the RO until your BVA hearing is held (either the traveling board or the video conference), and once that BVA hearing is conducted, then your C-file is sent to Washington.

"I have never received anything on the actual results of the de novo review, other than the SOC I mentioned dated September 2005. It was merely a "copy and paste" of the decision letter"

If you received a SOC from the DRO, then that was the resultes of the DRO review. Also, I'm willing to bet the SOC wasn't a "cut and paste" job, but rather a more in depth analysis of the prior denial. Also if it seemes like a "cut and paste" job, then It looks like the DRO decided pretty much the same thing as the RVSR did, meaning in the DRO's eyes the prior decision was correct!

"According to LTC P, they acknowledged my medical evidence when the rated me for Ankylosing Spondylitis, instead of the lumbosacral strain...I applied for rate increase for the worsening of my sc medical condition and the VARO rated my claim on residual Ankylosing Spondylitis. Totally wrong and incorrect adjudication...In the SOC it reads, "Although your BACK CONDITION is severe in nature, your problems are the result of your ankylosing spondylitis, which is not related to or caused by service. Therefore, in the absence of any evidence that your LUMBAR SPINE condition has worsened your 0 percent evaluation of CHRONIC lumbosacral strain is confirmed and continued."...NOW CORRECT ME IF I'M WRONG BUT THE LUMBAR SPINE/LUMBOSACRAL REGION IS YOUR BACK. HOW CAN ONE PROBLEM EXIST WITHOUT THE OTHER BEING A PROBLEM? ANKYLOSING SPONDYLITIS (AS) AFFECTS ON THE LUMBOSACRAL SPINE IS A CLASSIC SYMPTOM. IN FACT, A PERSON WOULDN'T EVEN GET AN AS DX IF IT WEREN'T FOR THE RADIOGRAHIC EVIDENCE OF FUSION OF THE SACROILIAC JOINTS W/EVIDENCE OF LUMBAR DEGENERATION (WHICH ARE BOTH MEDICALLY DOCUMENTED ALONG WITH RADIOGRAPHIC PROOF IN MY VAMR). IN ADDITION, BECAUSE THE SI JOINTS ARE WEIGHT BEARING JOINTS IT CAUSES EXCESSIVE STRAIN TO THE LUMBAR SPINE. I JUST UNDERWENT A HYSTERECTOMY ON JUNE 5, 2007 HOPING TO RELIEVE SOME OF THE PELVIC/GROIN PAIN IT WAS SO BAD. MY RHEUMS ARE SO AMAZED BY WHAT THE VARO IS OVERLOOKING HERE, IT IS ALMOST LAUGHABLE. IT IS ABSOLUTELY CRAZY. I TELL YOU, IT MAKES NO DARN SENSE TO ANYONE BUT THE PHX VARO"

From the looks of it, you sent VA medical records of a complete different diagnosis that affected an additional body etiology. In short, you are rated for a lumbar condition and you sent them medical evidence that showed a disability that affected the entire spine! The RVSR and the DRO's are not medical personnel and cannot by law make a medical determination. It may be common knowledge in the medical community that the two are related, but not to just an average lay person. You'll need a medical statement or an IMO from a doctor that states your Lumbar strain at least as likely as not cuased the "ankylosing spondylitis." As a side note, the spine is rated based on range of motion (how far you can bend over) or incapacitating episodes (number of weeks of bed rest prescribed by a doctor over the past 12 months), whichever results in the higher evaluation.

I hate to say it, but it looks like the RO has done everything it was suppose to do so far. If you are able to get that medical statement or IMO, you'll more than likely prevail in your claim. The bottom line is you're missing the nexus between the lumbosacral strain and ankylosing spondylitis.

Vike 17

#13 luvHIM

 
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Posted 21 July 2007 - 03:12 PM

Vike17,

I appreciate you responding. So, let me see if I can properly respond back to you. For starters: When I filed my claim in 2003, I was already service connected (according to my HINQ report) for a back injury sustained in service.

When the VARO adjudicated the claim, they did so using codes 5240 and 5242, which is the rating criteria for residual ankylosing spondylitis. My condition is active disease and according to Department of Compensations and Benefits should have been rated using diagnostic codes 5002, 5003, 5240, and DeLuca v. Brown (the extent of functional loss due to pain "on use or due to flares ups.") This was established by my C&P rating examiner (I have a copy of the rating exam) and the VARO ignored it.

My claim, although adjudicated for ankylosing spondylitis, resulted in a denial and medical description for lumboscaral strain, chronic. VA rating examiner noted consistent treatment of chronic lower back pain from SMR's. I received a permanent physical profile that listed lumbosacral facet syndrome as the diagnoses, with permanent restrictions of NO PROLONGED STANDING, SITTING OR WALKING; NO HEAVY LIFTING (MORE THAN 10LBS), NO BENDING, TWISTING, OR EXCESSIVE REACHING. This profile was given to me AFTER several times of being treated for lumbar strain by a military Orthopedic DR.

As far as the VCAA letters are concerned, I supplied all the medical evidence VARO needed to adjudicate my claim. The nexus is in my record. Lumbosacral facet syndrome is an arthritic degenerative syndrome effecting the joints. You don't get any more nexus than that. However, the VARO chose to omit these findings in adjudicating my claim when they over the diagnosis of my VA physicians and established my medical condition as lumbosacral strain. After the VA physicians addressed the question in their IMO's at my request "How has veteran's lower back condition worsened?" Question was taken straight off the VCAA letter VARO sent me.

Vike17, I would also like to make clear that I was already service connected. I didn't need to establish that. The chronicity factor for low back condition should have awarded 10%, if nothing else. You are almost coming across like the VARO. I'm not trying to prove I had a low back condition. That was already established before I got of the military. I was asked to show how my condition had worsened.

I DID THAT!

VARO DECIDED my medical condition was lumbosacral strain, chronic. NO ONE else has stated that. In fact, my SMR's indicate "chronic low back," and gives creedance the back injury. VARO is using the early/initial treatment notes of my back injury from my SMR to say my condition was/is lumbosacral strain, chronic. That is not what they say. My VA C&P rating examiner shot that alleged assertion down in his seven page rating examination report. NO, my dear, VARO was hoping I would go to sleep on this claim. Not going to happen. There are blatant errors throughout what I've been put through, which is why I asked for a hearing (in writing) with a DRO. But I have never got one. Yes, it was a copy and paste de novo review. The only thing the different was that instead of giving a bunch of regulation numbers, it was actually spelled out. But here's a clincher for you, even they were copy and paste jobs because I went to the eCFR and discovered they took a paragrapgh and added a paragraph or sentence from an entirely different CFR part number. I was amazed.

I put the decision letter side by side with the SOC decision and it read word for word. None of the IMO's that had been submitted were addressed. My permanent profile was ignored. Not even the rating examination was accurately conveyed. It was like reading the decision letter all over again.

VARO even went so far as to send me a letter stating that they requested my Army SMR from NPR and had been notified that my records were lost and nowhere to be found. They sent this letter, unaware that I had also requested my Army SMR and had received a letter almost 2 months prior from NPR stating that my "...Army SMR has been loaned to the local VARO in your area. You may contact the local VARO in your area to obtain a copy." Well, I had already done that and the records were probably in route while they were typing up the falsified letter they sent me.

I do not have just one IMO. I have five. I have three from all of my VA docs and they are scanned in my VAMR. I have one from the VA rheum (also scanned in my records); I have a C&P rating exam concurring with the findings of my VA rheum and addressing limitation of motion, spinal changes even from the first C&P exam I had, as well as pain on motion. I have two IMO's (one recent) from outside rheumatologists.

In conclusion to your reponse, the etiology from in-service supports the diagnosis of Ankylosing Spondylitis. Every IMO has meticulously addressed how they can be certain this condition began in service and connect the dots. Secondly, lumbar strain does not cause Ankylosing Spondylitis. BUT Ankylosing Spondylitis does cause lumbar strain. And, for the record, Ankylosing Spondylitis does not just attack the spine. It is medically proven to be a systemic disease, especially when left untreated. And the prescribed treatment for Ankylosing Spondylitis is MOST DEFINITELY NOT bed rest.

I have supplied a link to anyone wanting to know more about this condition in a previous post. The 38 USC 1155 has been changed to reflect how this condition is suppose to be properly adjudicated. For years the VARO was been adjudicating Ankylosing Spondylitis based on residual critieria. IT IS INCORRECT. The Director of Compensation and Pension Benefits Administration addressed the issue back in 2001 based on a Board of Veterans' Appeals decision made in 1995. IN FACT, I was sent a copy of the letter addressing the matter and filed it as new evidence in my claim. But not all VARO's are adjudicating in accordance with the updated version of 38 USC, as it pertains to Ankylosing Spondylitis.

Nonetheless, I have a copy of everything. Everything the VARO has ever sent me (so, I know exactly what they asked me to provide and for what). Everything in my military SMR's. Everything in my VAMR, to include actual films of every X-ray, MRI, Bone Scan, CT Scan and whatever else. I'm just waiting on a full copy of my C-File. I even have documentation of how other VARO's adjudicate claims like mine. How the VARO should adjudicate a veteran's claim when they are treated for lumbosacral strain in service and the veteran discovers years later he/she actually has Ankylosing Spondylitis.

I DID NOT PRESENT ANYTHING NEW TO THE VARO. THE VARO SIMPLY DECIDED TO DISMISS WHAT THE VA PHYSICIANS WERE ESTABLISHING AS MY WORSENED "BACK CONDITION", which is how it appeared in my records until the VARO gave it a description. I DIDN'T KNOW ANYTHING ABOUT LUMBOSACRAL STRAIN, CHRONIC UNTIL MY CLAIM WAS DENIED AND THIS WAS THE MEDICAL CONDITION VARO HAD OUTLINED IN THERE REASON FOR DENIAL.

I'm not trying to get defensive, although I'm sure I have a tad bit. Nevertheless, my claim began on a bad note. Whether the VCAA letters were system generated or not, no SO should ever tell a vet to disregard them. And before anyone responds to that statement, let me assure you I can hear very well and I know what she said.

Further more, I have a service connected disability of the back. Albeit, rated at 0%. But that condition has worsened is unmistakeable. The fact that my VA physicians are saying that my medical condition has always actually been Ankylosing Spondylitis should not be for me to prove. I am not a physician either. But if the VA raters are not physicians, and we know they are not, they should not be going over the head of medical experts to suggest their own etiology and diagnosis, either. I don't believe the burden of proof is actually on my shoulders. I honestly believe it is on theirs. If it takes the next how ever many years to prove that the VARO incorrectly adjudicated my claim, then so be it.

I don't know how I ended up defending the legitimacy of my claim, because I just wanted to know how common/uncommon it is for the Appeals Officer to review a vet's claim before sending it to the BVA and if they ever decide the claim before sending it off.

#14 luvHIM

 
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Posted 21 July 2007 - 08:06 PM

Vike17,

Let me be the first to say I stand corrected. I have submitted many medical statements supplied by my VA physicians and private rheumatologists. But I just discovered, after spending a pretty full day reading through the Electronic Code of Federal Regulations that an IMO is quite different than what I presumed.

#15 Vike17

 
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Posted 22 July 2007 - 01:41 AM

luvHIM,

There are a couple of things with your claim that don't really add up and I'll try to address both of them in terms that you can understand.

First of all, you said you are already service-connected for a "back injury" since 1984 at 0%. I'm assuming this is for the lumbar spine. If this is the case, you were rated under the old rating criteria (prior to Sept. 2002) and from the looks of things you were probably assigned DC 5295 Lumbosacral strain, which in all likelyhood was correct because, generally, Ankylosing Spondylitis takes time to develope and probably wouldn't have shown up on an x-ray back then (even your doctors stated this). This in turn maybe would warrant the VA to assign DC 5289 Ankylosis of the LUmbar Spine. At any rate the rating criteria for a 0% evaluation under DC 5295 calls for "With slight subjective symptoms only." Depending on what the C&P examiner stated back in 1984-85 and what the x-rays showed as far as degenerative arthritis, the VA could have also assigned a 10% rating under DC 5003 (your disability would then be hyphenated and would be 5003-5295). The X-rays would have needed to show arthritis involving "2 or more major joints or 2 or more minor joint groups. For VA purposes each disk segement is considered a minor joint and multiple disk segements are considered a minor joint group. But since Spondylitis takes time to actually develope on x-rays, there probably wasn't sufficient evidence back then to assign the 10% evalutaion under DC 5003. Also since there wasn't sufficient evidence back then to warrant a diagnosis of Spondylitis, that means any rating under DC 5002 wasn't warranted, such as 10% due to limited range of motion when there is a non-compensable rating of motion under any other DC concerning that particular joint affected.

So now if you are already service-connected for your lower back, then normally any subsequent diagnosis made regarding it is actually a moot point in the eys of the VA. And since you applied for an increase in 2003, your back would be rated either under the old criteria or the new criteria (post 2002) with DC's 5235 through 5242, whichever results in the higher evaluation. Under the new criteria it's all about range of motion (DC 5243 Intervertebral Disc Syndrome also entails incapacitating episode, which do not apply to you), meaning how far you can bend your back without pain. Taking into account pain, fatigue, and weakness is called the DeLuca Criteria which stemmed from the Court case you cited in your prior post.

Your assumption that;

"The chronicity factor for low back condition should have awarded 10%, if nothing else"

is not correct. The 10 evalution under the old criteria is "with characteristic pain on motion," and under the new criteria it is "Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees."

Having said all of this, I come to the second part of my analysis. After reading through your posts, I am to wonder if you are even service-connected for your lumbar spine at all. I say this because you keep referring to;

"although adjudicated for ankylosing spondylitis, resulted in a denial and medical description for lumboscaral strain, chronic. VA rating examiner noted consistent treatment of chronic lower back pain from SMR's. I received a permanent physical profile that listed lumbosacral facet syndrome as the diagnoses, with permanent restrictions of NO PROLONGED STANDING, SITTING OR WALKING; NO HEAVY LIFTING (MORE THAN 10LBS), NO BENDING, TWISTING, OR EXCESSIVE REACHING. This profile was given to me AFTER several times of being treated for lumbar strain by a military Orthopedic DR"

If you are already service-connected for your lumbar spine anything in your service-medical records are irrelevant in regards to a claim for an increase! It's all about how your back is currently doing and any medical evidence since your last C&P exam and rating!

"VARO even went so far as to send me a letter stating that they requested my Army SMR from NPR and had been notified that my records were lost and nowhere to be found. They sent this letter, unaware that I had also requested my Army SMR and had received a letter almost 2 months prior from NPR stating that my "...Army SMR has been loaned to the local VARO in your area. You may contact the local VARO in your area to obtain a copy." Well, I had already done that and the records were probably in route while they were typing up the falsified letter they sent me"

Also, if the RO had to request your SMR's then that leads me to believe that there is more to this claim than whats being presented. If you were already service-connected back in 1984, the RO would have already requested those records and they would already be in your C-file. They wouldn't have needed to request them for a claim for an increase, unless you told them about some clinical (impatient) records that aren't a part of your SMR's!

"Vike17, I would also like to make clear that I was already service connected. I didn't need to establish that... You are almost coming across like the VARO. I'm not trying to prove I had a low back condition. That was already established before I got of the military. I was asked to show how my condition had worsened...I DID NOT PRESENT ANYTHING NEW TO THE VARO. THE VARO SIMPLY DECIDED TO DISMISS WHAT THE VA PHYSICIANS WERE ESTABLISHING AS MY WORSENED "BACK CONDITION", which is how it appeared in my records until the VARO gave it a description. I DIDN'T KNOW ANYTHING ABOUT LUMBOSACRAL STRAIN, CHRONIC UNTIL MY CLAIM WAS DENIED AND THIS WAS THE MEDICAL CONDITION VARO HAD OUTLINED IN THERE REASON FOR DENIAL"

Furthermore, just because something is in your SMR's doesn't mean it is automatically servic-connected by the VA. Did you actually file a claim in 1984 and did you receive a actual rating decision from VA stating that your lower back was determinded to be service-connected with a 0% evaluation being assigned???

Another thing that struck me was the fact that the VA was asking for a nexus between your lumbosacaral strain and your current Spondylitis. If your SMR's showed low back pain and lumbar strain and you aren't service-connected for that, and you have Spondylitis now, these are two complete different conditions and would need a nexus from a doctor. You also said that have 5 IMO's from three different doctors. Well, if those doctors didn't review your medical records and didn't give a full rational for why they came to such a conclusion, then the VA will assign little to no weight to them when deciding an issue, regardless if it a VA doctor doing a C&P exam or a private doctors. Having said this, if what you said as far as;

"the etiology from in-service supports the diagnosis of Ankylosing Spondylitis. Every IMO has meticulously addressed how they can be certain this condition began in service and connect the dots. I have two IMO's (one recent) from outside rheumatologists...None of the IMO's that had been submitted were addressed"

...the VA may not have received those IMO's for a number od reasons, especially if they aren't even listed as evidence in a rating decision or SOC! You may need to check to see if they even had them to consider.

"Secondly, lumbar strain does not cause Ankylosing Spondylitis. BUT Ankylosing Spondylitis does cause lumbar strain. And, for the record, Ankylosing Spondylitis does not just attack the spine. It is medically proven to be a systemic disease, especially when left untreated. And the prescribed treatment for Ankylosing Spondylitis is MOST DEFINITELY NOT bed rest"

Like I said before, this would have to have been addressed by a doctor in an IMO. It may be common knowledge within the medical community, but the VA needs something in writing from a doctor saying YOUR Spondylitis has caused some other medical condition! The RVSR and DRO cannot make that determinatiion.

"I even have documentation of how other VARO's adjudicate claims like mine. How the VARO should adjudicate a veteran's claim when they are treated for lumbosacral strain in service and the veteran discovers years later he/she actually has Ankylosing Spondylitis"

It doesn't matter what anyone elses claim shows. Each claim is unique to that individual person as far as medical records, the nexus, and symptoms are concerned. If you're arguing the merits of your claim based on what and how someone elses was decided, you're going to be one frustrated veteran!!! The VA will decided your claim on your evidence ect..., not how they may have decided someone elses claim.

One thing I also noticed was that you said you have 'severe osteoarthritis at C3-C4." did you claim your cervical spine also?? If you did, the cervical spine is generally rated seperately from the lumbar spine and you would need an IMO from a doctor stating that your lumbar spine condition (either the lumbar strain or the Spondylitis has some how caused your cervical spine disability.

I could go on and on about the inconsistancies of how you presented your claim. The bottom line is if you're already service-connected for your lumbar spine, which I'm having serious doubts of, then any other subsequent diagnosis is irrelavent. And if you're already service-connected for the lumbar spine and you claimed the cervical spine as secondary to your lumbar spine, or any other condition for that matter, as I said before, you'll need an IMO to make the connection. If you are not service-connected for your lumbar spine, you'll need an IMO making the connection between your inservice lumbosacral strain and your current Ankylosing Spondylitis.

Vike 17

Edited by Vike17, 22 July 2007 - 03:34 AM.


#16 luvHIM

 
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Posted 22 July 2007 - 09:38 PM

So now if you are already service-connected for your lower back, then normally any subsequent diagnosis made regarding it is actually a moot point in the eys of the VA. And since you applied for an increase in 2003, your back would be rated either under the old criteria or the new criteria (post 2002) with DC's 5235 through 5242, whichever results in the higher evaluation. Under the new criteria it's all about range of motion (DC 5243 Intervertebral Disc Syndrome also entails incapacitating episode, which do not apply to you), meaning how far you can bend your back without pain. Taking into account pain, fatigue, and weakness is called the DeLuca Criteria which stemmed from the Court case you cited in your prior post.

Your statement is not totally correct, which makes it incorrect. What you stated is not the complete and accurate or correct adjudication protocol for rating ankylosing spondylitis active disease. Please take note of the word ACTIVE. What you are referring to is residual ankylosing spondylitis only.

AND, I'm not sure why you think incapacitating episodes would not apply to me?

DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, D.C. 20420

August 31 2006

xxxxxxxxxxxx
xxxxxxxxxxxx
xxxxxxxxxxxx

Dear xxxxxxx,

I am pleased to respond to your letter to Secretary Nicholson regarding VA's rating evaluation process of Ankylosing Spondylitis (AS).

You suggest there is a problem with how VA evaluates the residuals of AS.
Ankylosing Spondylitis is currently evaluated in accordance with 38 USC Para. 1155 using the Schedule for Rating Disabilities. This schedule evaluates AS by constitutional manifestations of impairment of health, incapacitating exacerbations, and disability of the joints, muscles and nerves. However, some of these residual disability residuals may indeed overlap. As a result, the law precludes (or prohibits) the AS active disease process residuals to be combined with residual ratings for the limitation of motion or ankylosis.

Thus, the disability evaluation most advantageous to the veteran (be it the constitutional manifestations, limitation of motion, or ankylosis) will be assigned the appropriate percentage evaluation.
This percentage evaluation represents the overall disability evaluation of the AS by the Schedule for Rating Disabilities, using Diagnostic Codes (DC) 5002 and 5240.

If AS becomes so severe as to affect entirely different body systems, such as neurological deficits of bowel and bladder, these deficits may be evaluated under appropriate DC’s, rated as separate disabilities,
and incorporated in the combined overall disability evaluation of the AS.

For your information, however, the rating criteria for AS can be obtained in the VA’s Schedule for Rating Disabilities (38 CFR, Part 4) via our web site at
http://www.va.gov.

I hope this information is useful to you.

Sincerely,

Renee L. Szybala
Director
Compensation and Pension Service


If you are already service-connected for your lumbar spine anything in your service-medical records are irrelevant in regards to a claim for an increase! It's all about how your back is currently doing and any medical evidence since your last C&P exam and rating!

That is basically the same thing the SO said back in 2003.
I am service connected and continued at 0% disabling.

Originally (03/03) 1-800 rep simply stated I was service connected for a back injury 0% disabling. I asked if I could still file a claim (2003) because my back problems were worse. I was told yes and it was suggested I use a VSO to help me.

I went to Department of Veteran Services and the SO filed my claim (have copy of original form 21-4138. It states: "Please consider veteran for an entitlement to increase for her service connected back injury. Please request medical records from SAVAHCS."

As of 10/03/06, HINQ shows Service Connected disability 5237-Lumbosacral or Cervical strain 0% Orig Eff Dt Jan 18, 1979. Service Connected low back disorder 0% Orig Eff Dt Apr 20, 1984. Combined %=0


I was encouraged to file a claim by my VA primary and the SO. What led to me filing claim for increase:

Results of test:
HLA-B27 positive
Elevated WESTERG
Elevated CRP
Positive TB skin test with negative findings for active disease.
X-ray of Lumbar spine 03/05/03 Complete osseous ankylosis of the sacroiliac joints. This appearance is most suggestive of an inflammatory spondyloarthropathy. There is severe periarticular sclerosis in the pubic region consistent with Osteitis Pubis. There is DJD and facet arthropathy of the lumbar spine.

MRI: L3-L4 moderate hypertrophy of the facets; L4-L5 moderate bulging of intervertebral disk and moderate hypertropy of the facets; Degenerative facet sclerosis seen at L5-S1 with moderate spurring seen adjacent to the superior end-plate of L5.


Rating Examination 10/04 (in part):
Objective Finding:
Lumbar spine is flattened which is consistent with progression of moderate to severe ankylosing spondylitis. Flexion is to less than 15 degrees; extension is less than 10 degrees; flexion to both right and left laterally are each less than 10 degrees; right and left lateral rotation of the thoracic spine are each less than 5 degrees. Rating examination and x-rays in 08/03 showed no scoliosis. She now has mild scoliosis of the upper and mid thoracic spine. There is decreased range of motion in her cervical spine with flexion to 25 degrees and extension to 40 degrees; right and left lateral tilts are less than 5 degrees each. Pain is noted during range of motion with any motion and repetition of either the lumbar, or cervical spine. Repetition was not asked of this lady considering the diagnosis.

Impression: Ankylosing Spondylitis as shown by Dr. Bode at this rheumatology clinic.

Symptoms began in 1978 and appeared to be due to lumbosacral strain and repeated many times. AF/Army SMR's show care during service for lumbar strain and chronic low back pain.

"AF and Army SMR's, C-file and examination of the back are the basis of saying that her ankylosing spondylitis was most likely beginning in service in 1978 but not then recognizable as such. I conclude that the cause of ankylosing spondylitis is unknown. The onset of ankylosing spondylitis beginning in 1978 is most likely but the only manifest injury was said due to strain. Her ankylosing spondylitis is not caused by or a result of her low back strain suffered in 1978. Her low back disorder in 1984 described in service as chronic low back pain is most likely due to the progression of her ankylosing spondylitis.

ADDENDUM: THE DEGREE OF PAIN WITH MOTION EITHER THE LUMBAR OR CERVICAL SPINE IS SUCH THAT SHE IS EFFECTIVELY INCAPACITATED DAILY DURING THE PAST YEAR OR MORE.

NO DIAGNOSTIC STUDIES WERE DEEMED NECESSARY FOR THIS ESTABLISHED DIAGNOSIS."
(Caps are not mine)

Vike17,

I almost want to laugh and cry, you are raising every point that has been raised and continues to be the most baffling case my NSO has ever seen.

YOU STATED: Also, if the RO had to request your SMR's then that leads me to believe that there is more to this claim than whats being presented. If you were already service-connected back in 1984, the RO would have already requested those records and they would already be in your C-file. They wouldn't have needed to request them for a claim for an increase, unless you told them about some clinical (impatient) records that aren't a part of your SMR's!

The RO DID NOT have to request my SMR's. They sent me a letter with an attached form (that showed Records could not be found). I was informed that it was not even a form VARO uses. It is one that the clinics would have used a long time ago. I think someone took it out of my SMR and copied it and then sent it to me because I had requested my SMR's.

Now, I know you probably don't think that way of the VARO. But I don't put anything pass them anymore.

At any rate, VARO did have my SMR's because they sent them to me. I requested my SMR's from RO, after I received the letter from NPRC in 03 stating that's who had them. I received a copy of both AF/Army SMR's in February 05, AFTER the 10/04 rating exam and AFTER the second denial (requested reconsideration in August 04 after the first decision letter denying me in June 04).

Furthermore, just because something is in your SMR's doesn't mean it is automatically servic-connected by the VA. Did you actually file a claim in 1984 and did you receive a actual rating decision from VA stating that your lower back was determinded to be service-connected with a 0% evaluation being assigned???

I'm not stupid. I did not have my SMR in my possession when I filed the claim. So, I got the information regarding my service connection from VA by calling the 1-800 number. The rep not only told me of my SC status but he was also the one who told me I could get a copy of my HINQ from the VAMC Eligibility Office. I did that. I did not service connect myself on a presumption just because I injured my back in service. I ASKED VA if I was service connected. As, I stated, yes I received an actual rating decision that my lower back was service connected and 0% disabling.

Another thing that struck me was the fact that the VA was asking for a nexus between your lumbosacaral strain and your current Spondylitis. If your SMR's showed low back pain and lumbar strain and you aren't service-connected for that, and you have Spondylitis now, these are two complete different conditions and would need a nexus from a doctor.

I never said the VA was asking for a nexus. I was merely being sarcastic in saying the "nexus" is in the medical evidence that is already in my C-File.

You also said that have 5 IMO's from three different doctors. Well, if those doctors didn't review your medical records and didn't give a full rational for why they came to such a conclusion, then the VA will assign little to no weight to them when deciding an issue, regardless if it a VA doctor doing a C&P exam or a private doctors. Having said this, if what you said as far as;


It is actually five different doctors. But three of them are VAMC physicians. Well, I have the copies and from what I've read, they were more thorough than expected.

It doesn't matter what anyone elses claim shows. Each claim is unique to that individual person as far as medical records, the nexus, and symptoms are concerned. If you're arguing the merits of your claim based on what and how someone elses was decided, you're going to be one frustrated veteran!!! The VA will decided your claim on your evidence ect..., not how they may have decided someone elses claim.

Yes, every claim is unique to the individual. I am not arguing the merits of my claim based on anything other than the Federal Code of Regulations which have been misapplied in my case. Your proclamation, however, is interesting given the fact that many veterans due win there claims on the basis of established BVA and Court of Appeal decisions made prior to their claim being adjudicated.

The bottom line is if you're already service-connected for your lumbar spine, which I'm having serious doubts of, then any other subsequent diagnosis is irrelavent.

Well, you can doubt all you want. I'm not appealing to you. Besides, I don't know what else to tell you. I have not claimed anything but what I've stated. I requested an increase for my service connected back injury.

I could go on and on about the inconsistancies of how you presented your claim.

I presented my claim just the way it has been and is.




#17 Vike17

 
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Posted 23 July 2007 - 01:06 AM

luvHim,

I know exactly how ankylosing spondylitis is rated, I was trying to explain how you were possibly rated back in 1984 (now it appears it's 1979 as an effective date). And from the looks of it, I was correct in that assumption. If you were service-connected, now back in 1979, for lumbocaral strain, in all likelyhood the DC would have been 5295, and when you applied for an increase your DC was changed to the new rating criteria with a DC of 5237. I was also trying to explain the different senarios of why the VA assigned that DC and not combining it with either DC 5002 or 5003.

As far as the letter from the VA, let me try to explain this again so you understand. Ankylosing spondylitis is a form of rheumatios arthritis, not degenerative arthritis (I mentioned DC 5003 in my prior post in the event that back in 1984 there wasn't any evidence of rheumatiod arthritis but degenerative artritis due to the lumbar strain) and would warrant either the assignement of DC 5240, or both by being hyphenated as 5002-5240. Normally you would be rated under 5240 due to the limitation of motion or DC 5002 if the rheumatiod arthritis is active, whichever rating would result in the higher evaluation. However, if the limitation of motion does not warrant a compensable evalution under 5240, meaning that there is forward flexion greater than 85 degrees, and the disease is active, then you would be given a 10% evalution under the criteria of DC 5002 because there is objective finding of limitation of motion such as muscle spasm or swelling. When the VA hyphenates a DC with another, it identifies the body system affected by the arthritis! Furthermore, you cannot be assigned a 10% or 20% rating under DC 5002 and another 10% or 20% under DC 5240 beacuase, as the letter from VA states, this would by pyramiding. Also as I noted in my prior post, as did the letter from VA, if you have ankylosing spondylitis in another bodily etiology, you can obtain service-connection for that also.

"AND, I'm not sure why you think incapacitating episodes would not apply to me"

If you would read my prior post, you would notice that I was reffering to the incapacitating episodes under DC 5243. If your ankylosing spondylitis is an active process, then you could be assigned a rating of 20% or higher under DC 5002 due to "incapacitating exacerbations." These are two totally different rating criteria between the two.

One other thing that doesn't add up with your claim is that you said;

"As of 10/03/06, HINQ shows Service Connected disability 5237-Lumbosacral or Cervical strain 0% Orig Eff Dt Jan 18, 1979. Service Connected low back disorder 0% Orig Eff Dt Apr 20, 1984. Combined %=0"

You cannot have two rating for the lower back, provided that "HINQ shows Service Connected disability 5237-Lumbosacral or Cervical strain 0% Orig Eff Dt Jan 18, 1979,' means lumbocasral strain and not cervical! If this is the case, then someone at VA screwed up and enter both into the computer. Having said that, why would the VA assign a 0% evaluation for a lower back condition in 1984, which is a bit over 4 years after you were orginally service-connected. Did you apply for an increase in 1984 which prompted VA to enter something in the computer????? Are you service-connected for the cervical spine also (maybe in 1979????).

"I never said the VA was asking for a nexus. I was merely being sarcastic in saying the "nexus" is in the medical evidence that is already in my C-File"

Then what does this mean????? ; "the VARO is still denying me a rate increase because they state there is no nexus."

"The RO DID NOT have to request my SMR's. They sent me a letter with an attached form (that showed Records could not be found). I was informed that it was not even a form VARO uses. It is one that the clinics would have used a long time ago. I think someone took it out of my SMR and copied it and then sent it to me because I had requested my SMR's...Now, I know you probably don't think that way of the VARO. But I don't put anything pass them anymore...At any rate, VARO did have my SMR's because they sent them to me. I requested my SMR's from RO, after I received the letter from NPRC in 03 stating that's who had them. I received a copy of both AF/Army SMR's in February 05, AFTER the 10/04 rating exam and AFTER the second denial (requested reconsideration in August 04 after the first decision letter denying me in June 04)."

If you were service-connected and the VA requested additional records friom the the NPRC in St. Louis, then my geuss is you made some type of remark to tyhem that there mught be additional medical records that they didn't have. Even though you were already service-connected at the time and any subsequent SMR's from the DoD would actually be a moot point, the VA MUST obtain any of those brought to light by the veteran in accordance with the VCAA of 2000.

After re-reading everything in these posts, I have to say that your claim is so muddled up. You aren't giving any straight answers as to what is what and you are adding things to each post such as acuisations and so forth, which actually have little to no bearing on your claim what so ever. Before I keep going on and on about this, I will say these things in my obsevations;

1) In all likely hood your problem lies within the statement from the C&P examiner in which he states;

"I conclude that the cause of ankylosing spondylitis is unknown. The onset of ankylosing spondylitis beginning in 1978 is most likely but the only manifest injury was said due to strain. Her ankylosing spondylitis is not caused by or a result of her low back strain suffered in 1978."

Then he contradicts himself by saying;

"Her low back disorder in 1984 described in service as chronic low back pain is most likely due to the progression of her ankylosing spondylitis."

2) The VA has assigned two ratings for the lower back, which appears to be adding to the confusion. What was the reason for them to assign another rating in 1984, 4 years after the initial rating???? Did you apply for an increase back then, and if so, what were the findings from the C&P exam?????

What does the actually rating decision state from 1979 AND 1984. Not just the DC's but the actaul decision. The older rating decisions probably wont have the "evidence" or "reasons and Bases" section, but rather in a format with the letters "a," "b," ect..., and they are on, I think, VA form 21-679 and 21-679b. They also may be on VA Form 21-6789 too!

3) Like I said before in my previous posts lubosacral strain and ankylosing spondylitis are two different animals and since the VA examiner in part couldn't asociate the two in his findings, this is probably where your problem lies. Having said this, as I said before, normally once you're service-conmnected for a certain bodily etiology, then any subsequent diagnosis is actually a moot point. Depeneding on what the other 3 - 5 IMO's state (I can't tell how many you have as you have contardicted yourself on this) and how thoroughthey where with their rationals, they may not have been enough to orveride the C&P examiners findings. Hell, from the looks of things, the VA didn't have these IMO's before them to consider.

4) The only thing that comes to mind is the VA may have had enough medical evidence to seperate the two and determined (with the medical evidence in front of them, meaning minus the IMO's) that the AS was infact causing the increased disability and not the lumbar strain. I have never seen this happen, but I suppose the VA could do this depending on the medical evidence before them.

If this is the case, you need to get the IMO's to the VA that state the disabilty noted in your SMR's was in fact the early manifestation or the aggravation of AS. I say aggravation because, generally AS begins in childhood and takes year and years to maifest itself!

5) You need to read the entire SOC. There is a "reason and bases" section, which in all likely hood went into more detail as to why the claim was denied than the first rating decision did. If it is a compltete cut and paste job, which I doubt it was, of the first rating decision as you said it was, then go back and read the entire rating decision.

6) If the VA was able to seorate the two condition as I said in number 4, then the bottom line is you're missin g the nexus between the two!

I'm willing to bet that there is much more to this situation that is being presented. I say this because each post by you brings to light something else. Furthermore, since your claim was also reviewed by the Appeals Team, the chances of them overlooking something as simple as you have presented it is actually pretty remote. I'm not saying it couldn't happen, but the chances aren't in your favor.

I wish you the best of luch in getting this resolved.

Vike 17

Edited by Vike17, 23 July 2007 - 01:39 AM.


#18 luvHIM

 
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Posted 24 July 2007 - 12:07 PM

Vike17,

I appreciate you explaining it better. But we can end it here, unless you can think of something that might help me out.

Having said that, why would the VA assign a 0% evaluation for a lower back condition in 1984, which is a bit over 4 years after you were orginally service-connected. I don't know.

You cannot have two rating for the lower back, provided that "HINQ shows Service Connected disability 5237-Lumbosacral or Cervical strain 0% Orig Eff Dt Jan 18, 1979,' means lumbocasral strain and not cervical! If this is the case, then someone at VA screwed up and enter both into the computer.
I called the 1-800-827-1000 this morning, just to affirm everything. Per the VA rep: I am service connected for a back injury in 1979. I am, as known, still rated at 0%. DC is 5237 for Lumbosacral or Cervical strain.

Did you apply for an increase in 1984 which prompted VA to enter something in the computer????? I did apply for an increase but I didn't pursue the claim. The VA Decision in ‘79 is unchanged. It is not known why a HINQ in '06 is showing a back disorder for '84. Concluded it is a definite error. Claim in '84 did not change decision in '79 because I didn't move forward with the claim. It was suggested I go back to VAMC E&E and request another HINQ because it should show current status.

Are you service-connected for the cervical spine also (maybe in 1979????). NO.


I have absolutely no reason to fabricate anything. I'm giving it to you as straight as I know.

Have total and permanent fully favorable award for SSD from SSA (retroactive February 2004) based my VAMR and statement from VA rheum. I know...two different organizations. But, I'm just saying...SSA took to heart the same statements VARO claim in the SOC under Evidence that they have also reviewed.

The only physician statement RO would not have been able to review before I appealed is the one from my new rheumatologist, which was sent recently certified return receipt on May 4, 2007. It was received by NSO and forwarded May 9, 2007 to Appeals Office for placement in C-File.

Then what does this mean????? ; "the VARO is still denying me a rate increase because they state there is no nexus." Perhaps I have used "nexus" out of context. VARO is suggesting by there decision to deny me a rate increase that there is no "nexus" or connection between the ankylosing spondylitis and lumbosacral strain. I have not been asked by RO to provide a "nexus" or specifically asked by RO to provide an IMO from a physician which gives a "nexus."


SOC is about 12 pages of CFR definitions. Reasons and Bases for decision is EXACTLY what was written in the Reasons and Bases for decision in the December 04 decision. It begins with RO overview of the evidence. Then it gives C&P exam findings. Then it states: "The examiner concluded by stating after a review of your medical records and claims file the cause of your ankylosing spondylitis is unknown; however your anklosing spondylitis would not have been caused by or the result of your strain in service. Therefore, although your back condition is severe in nature, your problems are the result of your ankylosing spondylitis, which is not related or caused by service. Therefore, in the absence of any evidence that your lumbar spine condition has worsened your 0 percent evaluation for your chronic lumbosacral strain is confirmed and continued." SOC concludes with "condition is noncompensable unless your ankylosing spondylitis is...(and then it gives the whole limitation of motion based on the flexion and so on, which I won't write out) [RO referenced 4.71a (5242) (08/03) 5242 Degenerative arthritis of the spine (see also diagnostic code 5003)]."

If you were service-connected and the VA requested additional records friom the the NPRC in St. Louis, then my geuss is you made some type of remark to tyhem that there mught be additional medical records that they didn't have. Even though you were already service-connected at the time and any subsequent SMR's from the DoD would actually be a moot point, the VA MUST obtain any of those brought to light by the veteran in accordance with the VCAA of 2000. I did include in my statement of the claim my prior dependency status (by marriage) to active duty military and that I did not have my dependent medical records. But that is totally different Record Holding Facility. It has nothing to do with my SMR.

After re-reading everything in these posts, I have to say that your claim is so muddled up.
Agreed.

You aren't giving any straight answers as to what is what and you are adding things to each post such as acuisations and so forth, which actually have little to no bearing on your claim what so ever. Sorry you feel this way. You are right, I am in defense mode. This claim has drug out for a long time and if I didn't have a "valid or legitimate" claim it would have been nice to have my VSO/NSO point out why. I have gotten more info on the possibility of why from you than I have heard in the past four years since the initial filing of my claim.

Before I keep going on and on about this, I will say these things in my obsevations;

1) In all likely hood your problem lies within the statement from the C&P examiner in which he states;

I can see that a lot more clearly now.

Depeneding on what the other 3 - 5 IMO's state (I can't tell how many you have as you have contardicted yourself on this) I have not meant to contradict myself. I have stated that 3 were from VA docs (to include the VA rheum) and two were from outside private rheumatologists, one of which is my current treating rheumatologist.

This is copied from

luvHIM

Posted Jul 21 2007, 04:12 PM

I do not have just one IMO. I have five. I have three from all of my VA docs and they are scanned in my VAMR. I have one from the VA rheum (also scanned in my records); I have a C&P rating exam concurring with the findings of my VA rheum and addressing limitation of motion, spinal changes even from the first C&P exam I had, as well as pain
on motion. I have two IMO's (one recent) from outside rheumatologists.

This sentence
"I have one from my VA rheum" was just me merely pointing out that my VA rheum's statement should have been given definite weight...C&P exam report stands alone...I was not adding anyone else to the list.

If this is the case, you need to get the IMO's to the VA that state the disabilty noted in your SMR's was in fact the early manifestation or the aggravation of AS. I say aggravation because, generally AS begins in childhood and takes year and years to maifest itself! Are you suggesting I send them (under separate cover, again? All of the ones from the VAMC are in my VAMR, which RO has access to. I have provided everything to RO through my NSO, which he has verified by letter (have all of those). I received letters from the NSO stating what action was taken with anything I have provided them. Why wouldn't RO not have them? Better yet, why would they list them under EVIDENCE if they didn't really review them already.



As you mentioned, the claim should have been presented as service aggravation. However, I don't believe that is really addressed in any of the statements I have provided to RO from medical physicians, at least not using the word "aggravation" specifically.

Partial from VA rheum’s letter: "A positive HLA-B27 indicates that the likelihood of her developing AS while in service is more likely than not. It clearly supports that she had as much a propensity for developing active AS disease as not. It is my opinion that her AS pre-existed her enrollment in service in 1978 and went undetected. This disease is known to manifest in a person's early teens to early 20's and seemingly tends to go into remission. So, it is most likely that her AS manifested as bilateral sacroiliitis and was misdiagnosed as lumbar strain. The occurrence of bilateral sacroiliitis at her age of 18 is most accurate. She first began to present with persistent low back and leg pain in service, after her back injury. She continues with persistent low back pain and pain radiating into her lower extremities bilaterally. Radiographic evidence supports long standing inflammatory arthritis and it undoubtedly began in service at the age of 18, as her sacroiliac joints are now bilaterally fused, sclerotic and eroding. I plan to do a workup for Ankylosing Spondylitis and start her on Azulfidine and Methotrexate.

Partial from new rheum’s letter: "AS most certainly can occur in women and progress over time. AS most certainly can be severe in women, as well. It is very possible to go years without an AS diagnosis, especially for women, who have their symptoms applied to other conditions (eg., Fibromyalgia). X-rays changes in the sacroiliac joints is, unfortunately, the normal point a rheumatologist will support a diagnosis of AS. When x-rays show complete fusion bilaterally, with continued spinal activity be it the lumbar, thoracic or cervical spine, as in Ms. X case, it is considered severe. She has an elevated CRP, SED and WESTERG rate which indicates active disease and inflammation. I am not surprised that the original diagnosis was misattributed most likely to trauma or may have followed trauma as an inciting event. While in service she developed a multiple facet syndrome and was given a Physical Profile Serial Report dated November 1978 resulting in permanent restrictions, which was characterized by progressive stiffness. She was not to have prolonged standing, sitting, or any heavy lifting. There is a history of chest pain also seen in her military medical records diagnosed as costochondritis that dates as far back as March 1978. History of chest pain continues in her VA medical records, again, diagnosed as costochondritis and symptomatic of her AS. Retrospectively, because she is HLA-B27 positive and has military medical records as early as 1978 indicating progressive stiffness, I would make a diagnosis of ankylosing spondylitis. Today her condition is worsened with frank persistent axial stiffness which now persists most of the day. She has started Enbrel for progressive disease, along with INH for a history of positive PPD, and Indocin. She definitely should have her rating of disability substantially increased as she now has a permanent life-limiting form of arthritis, which will interfere with any future care for herself along with any hobbies or ability to perform any regular compensated service. I would therefore request that her level of disability be re-evaluated by the Department of Veterans Administration and she be service connected for her AS." ( the letters are shortened (left out exam findings), of course, just to give you an overview of what has already been presented or sent to RO).

Furthermore, since your claim was also reviewed by the Appeals Team, the chances of them overlooking something as simple as you have presented it is actually pretty remote.

I don't know if my claim has actually already been reviewed or not. The NSO stated my C-file is with an "Appeals Officer" but did not say that it had already been reviewed. I started this thread to find out if an Appeals Officer could decide the claim at this point...that's all I wanted to know). But whether the Appeals Officer has already actually reviewed my C-file was not stated.

In fact, rep at the 1-800 number this morning said that from where he was reading there was a "suspense date" of 07/24/07. His guess is that some sort of action needed to happen by or on that date but he didn’t know what. He said my C-file is with an "Appeals Officer" and something about the file being “signed for” on July 19, 2007.

Anyway, for what its worth, you have made me take a closer look at everything and actually helped me. I wish I had known what I know now before I submitted a claim.

You are probably right, which would make sense because you’ve been doing this, obviously, way longer than I have had a claim in process. My observation of everything you have presented is: unless the BVA views my claim from a “fresh” perspective and gives weight to ALL the evidence (including the doctor statements) and not JUST the C&P exam report, which is what it appears RO has done, I will probably have a hard time getting the increase.

Thank you for your assistance!



#19 Vike17

 
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Posted 24 July 2007 - 02:43 PM

luvHIM,

"I don't know if my claim has actually already been reviewed or not. The NSO stated my C-file is with an "Appeals Officer" but did not say that it had already been reviewed. I started this thread to find out if an Appeals Officer could decide the claim at this point...that's all I wanted to know). But whether the Appeals Officer has already actually reviewed my C-file was not stated...In fact, rep at the 1-800 number this morning said that from where he was reading there was a "suspense date" of 07/24/07. His guess is that some sort of action needed to happen by or on that date but he didn’t know what. He said my C-file is with an "Appeals Officer" and something about the file being “signed for” on July 19, 2007"

As I said before, your claim was already reviewed by the DRO. The SOC was the review. What's probably happening now is that since you filed the Form 9 and requested a hearing with BVA (either the traveling board or vidoe conference, it doesn't matter), the recent activity at the Appeals Team is more than likely them getting ready to have your hearing. Once you have that hearing, your C-file will probably go back to the rating board so they can decide the most recent IU claim first before they ship it off to the BVA. Normally all open claims will be decided before the C-file can go to the BVA!

"I have not been asked by RO to provide a "nexus" or specifically asked by RO to provide an IMO from a physician which gives a "nexus.""

The VA wouldn't have needed to ask you for evidence of this in their DTA letter. You were applying for an increase. You just happened to supply them medical evidence of another disability AFTER the fact. The VA wouldn't have known there was another disability in the mix until they actually evaluated all the evidence shortly before the decision was made. Since the initial rating decision was a "cut and paste" job as you say, then at least your SO should have seen that the two disabilities needed a nexus. Remember the rating and the SOC said; "Although your BACK CONDITION is severe in nature, your problems are the result of your ankylosing spondylitis, which is not related to or caused by service. Therefore, in the absence of any evidence that your LUMBAR SPINE condition has worsened your 0 percent evaluation of CHRONIC lumbosacral strain is confirmed and continued."" I'm not really saying you are at fault here. Your SO should be trained to see this and take the needed corrective steps!

"The only physician statement RO would not have been able to review before I appealed is the one from my new rheumatologist, which was sent recently certified return receipt on May 4, 2007. It was received by NSO and forwarded May 9, 2007 to Appeals Office for placement in C-File...

I have three from all of my VA docs and they are scanned in my VAMR. I have one from the VA rheum (also scanned in my records...

Are you suggesting I send them (under separate cover, again? All of the ones from the VAMC are in my VAMR, which RO has access to. I have provided everything to RO through my NSO, which he has verified by letter (have all of those). I received letters from the NSO stating what action was taken with anything I have provided them. Why wouldn't RO not have them? Better yet, why would they list them under EVIDENCE if they didn't really review them already.
"

At this point it's really hard to tell if ALL of your IMO's and medical evidence were considered by the VA. At any rate, you need to make sure that during your hearing with the BVA, they are aware of and in possession of ALL of your IMO's; especially the one from your new rheumatologist, which you sent in already! Also make sure the VA has your SSA records!

One thing to keep in mind is that just because you were treated at a VAMC does NOT mean the RO has those records. The RO and the VAMC are two seperate entities within the VA (the RO is part of the VBA and the VAMC is part of the VHA). The two don't routinely talk to each other other than to set up C&P exams and so forth. You need to tell the RO of these dates and treatments at any VAMC, they will then obtain them via the "Duty to Assist." You can also do this at your BVA hearing!

As I said before, it looks like the VA was able to seperate the lubosacral strain and ankylosing spondylitis based on the medical information before them at the time of their decision. Like I said before, I've never seen this happen but it can be possible. Also the lower back disability in 1984 looks to be the continuation of the 1979 rating. I say this because you said you applied for an increase but did not follow through with it. In this case the VA would simply have continued the 0% evaluation. If the VA really did give you a second evaluation for your back, even if it was at 0%, in 1984 by mistake, I find it really hard to believe VA would have missed correcting this simple mistake TWICE. The first time being the application for an increase in 2003-04, and the second time by the DRO! I mean it could have happened, but easy ones like this are pretty rare!

The bottom line is you need to the connection or "nexus" beteen the Lumbosacral strain and the ankylosing spondylitis.

Vike 17

Edited by Vike17, 24 July 2007 - 02:49 PM.


#20 luvHIM

 
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Posted 25 July 2007 - 05:48 PM

Vike17,

Thanks for all of your insight and help. Now, that I can see things through different eyes, it can only help me with my hearing (I hope).

the recent activity at the Appeals Team is more than likely them getting ready to have your hearing. Once you have that hearing, your C-file will probably go back to the rating board so they can decide the most recent IU claim first before they ship it off to the BVA. Normally all open claims will be decided before the C-file can go to the BVA!

Okay, I see.

The VA wouldn't have needed to ask you for evidence of this in their DTA letter. You were applying for an increase. You just happened to supply them medical evidence of another disability AFTER the fact. The VA wouldn't have known there was another disability in the mix until they actually evaluated all the evidence shortly before the decision was made. Since the initial rating decision was a "cut and paste" job as you say, then at least your SO should have seen that the two disabilities needed a nexus.

This is what has me so upset right now. The first SO was working her own claim. After she was awarded 100% in Oct 04, she quit working at DVS. At any rate, I received my decision letter (the one leading to an appeal) in December 04. By that time she had already quit. DAV became my new representatives in March 2005, after I'd already submitted my NOD. The DAV NSO told me that all he can do at this point is assist me with the appeal because what's done is done.

One thing to keep in mind is that just because you were treated at a VAMC does NOT mean the RO has those records. The RO and the VAMC are two seperate entities within the VA (the RO is part of the VBA and the VAMC is part of the VHA). The two don't routinely talk to each other other than to set up C&P exams and so forth. You need to tell the RO of these dates and treatments at any VAMC, they will then obtain them via the "Duty to Assist." You can also do this at your BVA hearing!

I didn't know that! For whatever reason, I was being told that RO has access, if they needed to review my VAMR, they could.

As I said before, it looks like the VA was able to seperate the lubosacral strain and ankylosing spondylitis based on the medical information before them at the time of their decision. Like I said before, I've never seen this happen but it can be possible. Yeah, I'v had a few people in the VSO's tell me about the same thing. But, then again, they've also said it really depends also on how the claim was presented to RO.

Also the lower back disability in 1984 looks to be the continuation of the 1979 rating.
I say this because you said you applied for an increase but did not follow through with it.
Right. Spouse got orders to Egypt (AE-Joint Military) and we were able to go with him. So, I wasn't even in the country to pursue it.

In this case the VA would simply have continued the 0% evaluation. Right.

If the VA really did give you a second evaluation for your back, even if it was at 0%, in 1984 by mistake, I find it really hard to believe VA would have missed correcting this simple mistake TWICE. The first time being the application for an increase in 2003-04, and the second time by the DRO! I mean it could have happened, but easy ones like this are pretty rare! Okay, I'm referring to what was showing on a HINQ. I may be losing you here when you say missed correcting this simple mistake TWICE. The first time being the application for an increase in 2003-04, and the second time by the DRO! I mean it could have happened, but easy ones like this are pretty rare! Are you saying that by the time I got a copy of my HINQ in 06, it should have been reflecting whatever RO was going by or something else?

The bottom line is you need to the connection or "nexus" beteen the Lumbosacral strain and the ankylosing spondylitis. Well, I guess so, it has become quite evident at this point.

But, I can tell you that I have been spending a lot of time the past two days reading through many of the appeal decisions where increase for lumbosacral strain is concerned.

In some cases, other degenerative issues and or other medical diagnoses are raised in the appeals. But from what I've been reading of the decisions, it really does depend on how liberal or not the BVA chooses to be.

For example, I was reading one decision where the appellant's private physician was given more creedance than the IMO from a VA contracted doctor. Yet, on the other hand, I read where a VAMC Orthopedist's statement was given no weight over the C&P exam report. I've also seen a few claims that were on appeal be dismissed because RO (at some point) awarded or granted the increase. I don't know how often that happens. Probably not very often.


Anyway...