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Thoughts On "new And Material Evidence" Standards.


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#1 Troy Spurlock

 
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Posted 24 June 2012 - 02:13 PM

Mods, feel free to move this topic to the appropriate forum if I have posted it within the wrong one.

I am getting ready to go head to head with the VA helping another Vietnam veteran reopen a claim vs. filing it as a new one because the original claim was not only incorrectly filed by the county VSO (that I hope to replace soon, interview is tomorrow for the job), but the VA RO in its denial really didn't address any evidence for or against the claim and was rather vague about it.

I made a great investment buying two books from Lexis Nexis that focuses on case law, etc. and the CFR/USCS on veterans benefits, and in reading it I cannot help but question something. Here is what I gleaned from the text:


"The new definition of "new and material evidence" has changed and is applicable to any claim finally denied received on or after August 29, 2001.

New evidence means existing evidence not previously submitted to agency decision makers."

>Okay...so what if a veteran, by whatever means, submitted "evidence" to the RO [BUT] the RO 'never' really considered it and/or cited it in their decision of denial?

Just because "evidence" is submitted to agency decision makers does NOT necessarily mean that that evidence was actually reviewed much less considered by the [decision makers].

Thoughts?

"Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim."

>What if all the evidence on file is generated by the VA Medical Center, and as we are all human, to be human is to er. That being said, the rectal cancer that this veteran was diagnosed with was given a particular name, which could qualify as a 'soft tissue sarcoma,' a presumtive condition of AO exposure.

Then again, it could have been misdiagnosed altogether yet operated on just the same (and incorrectly with three follow-up corrective surgeries that included a stint in the bladder sphincter muscle - which in and of itself is another claim, either tort (malpractice) or subject to disability compensation according to some citations I read in the Lexis Nexis books).

"New and material evidence can neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim."

>Again this begs the questions, what if the decision makers NEVER considered it?

The advocacy tip in these books state that an advocate needs to focus on the reason(s) for the denial in asking to reopen a claim.

Given the decision of denial on this veteran, which is vague and makes NO reference to any diagnosis or specific evidence; I feel that reopening it won't be that difficult, it's their anticipated denial based on "new and material evidence" I want to nip in the butt before they can give it.

Thoughts?


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#2 Hoppy

 
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Posted 24 June 2012 - 03:17 PM

You have not provided enough specific details for me to offer an opinion. It would be nice to know exactly what the denial said.

They are not required to discuss every piece of evidence in the file. If they failed to list the evidence, that is another story. However, if the veteran was treated in a VA hospital they usually show the dates of the records they obtained from the VAMC without listing each specific report given to them by the hospital.

Additionally, it sounds like you are claiming there was a misdiagnosis issue. If you were to get a medical opinion with a change of diagnosis, this easily could be new and material evidence.

#3 john999

 
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Posted 24 June 2012 - 06:31 PM

If there is a medical report offered as evidence and the VA neither considers it or lists it that makes two prongs of the three steps for a CUE. The third step depends on if the excluded evidence would have changed the outcome of the rating decision. Then that gets into other areas of "reasonable minds" and "undebatable certainty" which are really the judgement of the VA. That is when you need a lawyer.

#4 Troy Spurlock

 
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Posted 24 June 2012 - 06:57 PM

The denial said nothing about the condition claimed other than it was denied, and that's my point in maneuvering to reopen the claim.

And while the VA doesn't have to discuss every piece of evidence, it does have to cite the evidence considered in order to justify the denial.

Does it not stand to reason (then again we are talking about the VA)...that evidence not considered is tantamount to evidence not received?

If the VA has given no specific reason for the denial - xyz report of Dr Who said this and that - or some case/statute - then it pretty leaves it open for a request to reopen the claim.

One can certainly argue a misdiagnosis and claim a different one with the proper medical literature and case citations, along with other argued points just enough to get the VA to grant the reopening of the claim; and once they do they are obligated under VCAA to provide a proper exam and assist in acquiring the "material evidence" necessary from the VA medical center (the only place this vet has been treated for this cancer as he has been unemployed ever since and has no other insurance).

Thanks for the replies gentlemen. I will also double check the CUE prongs, but a reopened claim is easier than CUE to argue and get approved in the short/long run...no?

Edited by Troy Spurlock, 24 June 2012 - 10:02 PM.


#5 Troy Spurlock

 
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Posted 24 June 2012 - 09:50 PM



I'd be curious to know how you became 100% SC for Angioedema... (according to your signature line).

Exactly how was it service connected?

Did a quick Google [medical] search for it then Control F for "military" "agent" "orange" and other relevant key words...no matches.

?

Must have been a pre-existing condition classified as "aggravated by in service," no?

Just trying to learn what I can...and that condition is well, unique...to say, from what I read, that is...

Edited by Troy Spurlock, 24 June 2012 - 10:04 PM.


#6 Troy Spurlock

 
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Posted 24 June 2012 - 09:56 PM

If there is a medical report offered as evidence and the VA neither considers it or lists it that makes two prongs of the three steps for a CUE. The third step depends on if the excluded evidence would have changed the outcome of the rating decision. Then that gets into other areas of "reasonable minds" and "undebatable certainty" which are really the judgement of the VA. That is when you need a lawyer.


So far in 15 years I've never needed a "lawyer" to win a case with the VA, either for myself or another veteran.

Being a lawyer doesn't make or break a VA case, because even lawyers have to be "accredited" via the DVA (which is meaningless IMO) in order to effectively represent someone on more than one claim (and that is the ONLY thing being accredited does for you, it allows you to represent a veteran on more than one claim on a one time basis).

Otherwise, ANYONE can represent a veteran on one claim on a one time basis via VA FORM 21-22a (http://www.vba.va.go...-21-22A-ARE.pdf). The REAL question is...does the individual REALLY know and UNDERSTAND the process to be an EFFECTIVE ADVOCATE!?!

I do...most lawyers don't.

County counsel referred me to a friend of his, a Lt. Colonel in the MC who is retiring and a former DA and DOJ lawyer going into private practice who needs guidance in filing claims with the VA. We met, he liked what I had to say, presented myself, and asked that we counsel one another on helping veterans. Suffice to say I was honored, but it also proves...a veteran doesn't always need a lawyer, just someone who understands how the VA claims system works.

Edited by Troy Spurlock, 24 June 2012 - 09:58 PM.


#7 Stretch

 
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Posted 24 June 2012 - 10:09 PM

Sometimes evidence doesn't make it into the VARO in time for a decision. Once I call my DAV rep. and asked him why a piece of my evidence was not considered in my claim. He told me that it was sitting right there on his desk. It was from that point on that I decided to send evidence myself with a certified mail. When it comes to court, then you will have the receipt.

This cross over of evidence sometimes is the reason that evidence is not considered. It is also the reason that I decided not to go with VSO's.

If the court does not have the evidence it can not consider it.

______________________________________________

Most of us here have won our own claims, basically. We have become pro-active, dug down, and learned the process. We have learned much more than that. We have learned the bottle necks that aren't included in the system.

Many Vets are over whelmed with the system for one reason or another, and just give up. These Vets need to go to a lawyer. There are just to many for one person to handle alone. Go to any VSO office and look at the claims piled up to the roof.

Edited by Stretch, 24 June 2012 - 10:23 PM.


#8 Hoppy

 
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Posted 24 June 2012 - 10:43 PM

“Does it not stand to reason (then again we are talking about the VA)...that evidence not considered is tantamount to evidence not received?”

Although the Board has an obligation to
provide reasons and bases supporting this decision, there is no
need to discuss, in detail, the evidence submitted by the
appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) (the Board must review the entire
record, but does not have to discuss each piece of evidence).
The analysis below focuses on the most salient and relevant
evidence and on what this evidence shows, or fails to show, on
the claim. The appellant must not assume that the Board has
overlooked pieces of evidence that are not explicitly discussed
herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the
law requires only that the Board address its reasons for
rejecting evidence favorable to the claimant).


For reasons stated below if the diagnosis noted in the VAMC reports was not sufficiently clear to identify a specific diagnosis of a presumptive AO cancer then there was no evidence facially and materially favorable to the veterans claim. Furthermore, they had no obligation to develop the claim based on a vague association in the VAMC reports of the cancer to a presumptive AO condition. I have seen no new laws over writing Goober v. Derwinski

Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty
to assist' is not a license for a 'fishing expedition' to
determine if there might be some unspecified information which
could possibly support a claim . . . [and] this duty is limited
to specifically identified documents that by their description
would be facially relevant and material to the claim").


“If the VA have no specific reason for the denial - xyz report of Dr Whi said this and that - or some case/statute - then it pretty leaves it open for a request to reopen the claim.”

Nothing is open to request the VA to re-open a claim. You must show that they failed to consider identified documents that by their description were facially relevant and material to the claim. So far all you have stated is that the veteran “could” have had a presumptive cancer, without specifically identifying the exact diagnosis provided by the VAMC and how it matches up to the AO laws.

As a general rule, "when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered." 38 U.S.C. § 7104(b) (emphasis added). The purpose of § 7104(b) is "to preserve the finality of Board decisions." Dittrich v. West, 163 F.3d 1349, 1351 (Fed. Cir. 1998). There are only two statutorily created exceptions to the rule of finality for veterans claims in § 7104(b). Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002) (en banc). First, under 38 U.S.C. § 5108, "f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See also 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) ("[T]he Board does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find."). Second, a final decision "is subject to revision on the grounds of clear and unmistakable error." Cook

“The denial said nothing about the condition claimed other than it was denied, and that's my point in maneuvering to reopen the claim.…..And while the VA doesn't have to discuss every piece of evidence, it does have to cite the evidence considered in order to justify the denial.”

If the evidence was included in the VAMC reports showing the diagnosis for the claimed condition and the VA included the VAMC records on the evidence list then the evidence was cited. The question is whether or not they need to give rational. It appears you are claiming there was insufficient rational to show that the medical evidence was considered. There are many types of claims in which the VA would not be required to discuss the medical evidence for the purpose of denying a claim. What if the claim was denied because the veteran did not establish AO exposure? Sometimes they do not take the time to write a denial that is coherent. Arguing that there was a poorly written denial does not equate to the type of argument that you can count on to win a claim. It sounds like the claim was denied without a C&P exam. I have seen this happen in many claims in which the claimed condition and the diagnosed condition (upon which a rating would be established) used different diagnostic terms.

The veteran’s option was to file a notice of disagreement and get an SOC. The SOC’s should be better developed than the denial. The VA considers this a process of perfecting a claim. By arguing that the denial was poorly written might cause them to write the actual reason the claim was denied. This would put you right back in a position where new and material evidence will be required. You have not provided enough information regarding the diagnoses and applicable laws to even guess that there is a valid claim. It appears you are considering the veteran was exposed to AO. Thus, you address the issue of medical evidence.

“What if all the evidence on file is generated by the VA Medical Center, and as we are all human, to be human is to er. That being said, the rectal cancer that this veteran was diagnosed with was given a particular name, which could qualify as a 'soft tissue sarcoma,' a presumtive condition of AO exposure.”

You have made vague references to cancer that may have been misdiagnosed or not properly identified by the VA clinicians as a presumptive AO condition. It appears that you will be arguing that the medical evidence not discussed would show that the veteran has a condition that “could” have qualified as a presumptive condition. Can you cite the specific diagnosis that was made and recorded by the VAMC and the presumptive laws that apply to that specific diagnosis?

If there was any question as to the diagnosis being the exact diagnosis cited as a presumptive AO condition this could result in a denial that did not specifically address the medical evidence. The fact that they did not take the time to write an additional sentence in the denial saying that the veteran was not diagnosed with a presumptive condition does not result in the VA reopening the claim. “could qualify” needs to be identified as “does qualify” when trying to re-open a claim. “[i]to be human is to er
” The raters are not required to read into medical evidence for the purpose of finding other applicable diagnoses (fishing). Claims are identified by diagnosis or symptoms. In a cancer claim the specific diagnosis made by the clinicians would need to be very accurate. If the VAMC diagnosis was vague arguing this point without new medical evidence showing the correct diagnosis is not a reliable argument. Without new medical evidence you’re your argument is that the rater failed to fish for the proper diagnosis prior to the denial. If the diagnosis made by the VAMC is not specifically shown in the law as a presumptive condition even if they were to reopen the claim they would deny the claim again based on the original vague diagnosis made by the VAMC. The fact that you argue that it is possible that his condition is a soft tissue cancer is not a reliable argument. You are not a doctor and a possible condition may not result in sufficient evidence to even develop the claim. If have seen this type of argument fail to advance a claim on numerous occasions. When the VAMC makes a vague diagnosis your options are to go back to the VAMC and get a clarification or get an IMO. In other words get new evidence showing that the diagnosis is specifically a presumptive AO condition .

Had the SO preloaded the research for the claim this could have been dealt with. Most service organization do not require that SO’s read the medical evidence prior to filing a claim. They file claims blindly and that is the way they like it. If you are the type of guy who wants to preload the evidence, I hope you get the job.

Failing to file a timely appeal and now finding the veteran in a position to appeal a closed claim would be best advanced by filing new and material evidence rather than relying solely on an argument that the prior denial was poorly written. If it were me I would surround them with evidence including new and material medical evidence.

#9 Hoppy

 
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Posted 24 June 2012 - 10:55 PM

Troy,

My angioedema was first diagnosed while I was on active duty. It is service connectable because it onset proximate to service. If it had onset after service i would have been shi__ out of luck. Alot of veterans have showed up on hadit trying to get it service connected without in service onset and they have all failed to this date. Even with it being diagnosed in service the VA fought me for 8.5 years. The condition is triggered by common industrial chemicals that i was working with in the military and would encounter if I lived a normal life stlye. I am basically a bubble boy. I have wound up in an ER over twenty five times because employers and friends subjected me to triggers without notifying me. My sense of smell is not adaquate to determine when the chemicals are present. A labor law attorney and ER doctors advised me not to engage in any activity that might trigger an angioedema event. I have full blown events with severe facial swelling and throat involvement. While in the military the events involved less severe symptoms. The progression from mild to severe events can not be related to any post service intercurrent events. This was determined by the center for disease control in Atlanta Georgia.

#10 Hoppy

 
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Posted 24 June 2012 - 11:07 PM

Troy,

By the way there are about five diffent forms of the disease. There are numerous BVA cases in which each of these forms were service connected. All either by in service onset or aggravation. I did not have the condition prior to military. Also, if you read some success stories I have also wrote position papers that won cases that lawyers lost. I have also had opinions from psychiatrists trashed just by exposing the speclulative nature of their determinations. In some cases I got IMO's in others the speculation was so obvious that the VA trashed the bogus C&P exams and gave weight to treating exams.

#11 Berta

 
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Posted 25 June 2012 - 10:31 AM

Hoppy-your info was EXCELLENT !!!! And right on the mark!
and one reason claimants fail to succeed on trying to re-open claims..... ,

because they misinterpret what New & Material evidence actually is.

Stretch Thank you- I have been trying to make this point for years to someone !!!!:

“If the court does not have the evidence it can not consider it.

And the CAVC will not accept accept more evidence.

That is why a CAVC remand is better then a denial- it opens the door for more evidence to come in at the VARO or BVA level.


Troy- some thoughts to your posts :

"New and material evidence can neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim."

Again this begs the questions, what if the decision makers NEVER considered it? “

How relevant was it to the claim?

Example- a vet I know got a “buddy” statement from someone who didn't work in his unit, could not give an eye witness account of what test the veteran claimed he was in,that gave him a current chemical disability, but who told VA of a chemical he ,the buddy, was exposed to around same time and at same military base.

The BVA rejected the Buddy statement as having no relevance at all to the actual claim they were deciding.

Another vet I know , against my wishes, is re-submitting a lengthy IMO he has that VA has rejected already. I read the IMO and it does nothing at all to advance his claim. His point is the denial didn't properly consider some of the IMO statements.

None of the IMO statements help him,yet he insists on re submitting cumulative and redundant evidence that VA has already considered. Th IMO barely even followed the IMO criteria I posted here at hadit and contained some speculative remarks that have nothing to do with his disability.

Troy,
I believe you are referring to the Veterans Benefits Manual by NVLSP.I have purchased the VBM since 1991 and have won all my claims due in great part to the VBM and to careful research.(I also go 3 IMOs too for one of my claims)

“One can certainly argue a misdiagnosis and claim a different one with the proper medical literature and case citations, along with other argued points just enough to get the VA to grant the reopening of the claim; and once they do they are obligated under VCAA to provide a proper exam and assist in acquiring the "material evidence" necessary from the VA medical center (the only place this vet has been treated for this cancer as he has been unemployed ever since and has no other insurance). “

I disagree with all of above - One can certainly file FTCA (but there is a Statute of Limits) and/or 1151 ,(no time limit) if a misdiagnosis is an issue, and support this with a strong IMO. In the VBM and also here in our FTCA forum is a wealth of info on FTCA and 1151 claims. I have put 1151 claim templates and SF 95 info in our FTCA/1151 forum here and my personal experiences and advise on these issues, as a successful FTCA/and 1151er.

I know another vet I met at the local VAMC many years ago who insists he has a Section 1151 issue the VA never decided.
But he never filed a formal Section 1151 claim.He still has the one I wrote for him many years ago-and he never mailed it. He filed his SF 95 one day after the SOL ran out and lost that too. He said the local vet reps refused to help him but I know those reps well, he never went to see them.

He still thinks the VARO somehow will catch the malpractice and then send him some money,against my advise.
My point to you is that the 1151 issue can be one paragraph long, short and sweet, but the formal claim must be filed that well because VA never infers or decides this type of issue until the veteran formally claims disability under 1151.

There is no claim form. A simple letter following my 1151 template here at hadit will do.


BVA citations don't help most claims unless they regard specific legal interpretations. The VA will not consider them as relevant if they regard diagnosis issues or similar vet's disability claims.

Stretch also said:
“Many Vets are over whelmed with the system for one reason or another, and just give up. These Vets need to go to a lawyer. There are just to many for one person to handle alone. Go to any VSO office and look at the claims piled up to the roof.

Also, we here at hadit often are expected to do things no VSO or attorney would ever do,as we take an educated quess and give advise without often knowing what the denial actually said as to the Reasons and Basis nr how the VA or didnt handle the evidence.I am still on a vacation but when return to hadit,I will be adviosing mre vets and particulariy all widows to get a vet rep then if denied ,get a lawyer, unl;ess we have enough info here from them to really be able to see why they were denied and what they can do about the denial.

Sometimes what we are told here that the VA said in a letter isn't the way it really is because the VA writes decisions (as well as the BVA and court)in a way that often has to be assessed word for word.

As to this veteran you are helping-I am familiar with the STS cancers and know that there can be many medical terms sometimes for one type of cancer.

He needs a definitive diagnosis,however, and VA needs that from a doctor and I suggest getting an IMO from a real doctor in this case , a doctor who can also opine on what appears to me to be a possible potential 1151 issue.

Edited by Berta, 25 June 2012 - 10:33 AM.


#12 Troy Spurlock

 
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Posted 25 June 2012 - 01:06 PM

Thank you all for your very informative replies!!! Especially you Berta...kind of you to check in and reply while you're on vacation.

All of your views are exactly what I needed in order to put this matter into perspective and the proper context before deciding how to proceed. On that note...I will take everything and mull over it and come back with more information and a plausible course of action in this matter.

#13 Troy Spurlock

 
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Posted 26 June 2012 - 07:33 PM

“Does it not stand to reason (then again we are talking about the VA)...that evidence not considered is tantamount to evidence not received?”

Although the Board has an obligation to
provide reasons and bases supporting this decision, there is no
need to discuss, in detail, the evidence submitted by the
appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) (the Board must review the entire
record, but does not have to discuss each piece of evidence).
The analysis below focuses on the most salient and relevant
evidence and on what this evidence shows, or fails to show, on
the claim. The appellant must not assume that the Board has
overlooked pieces of evidence that are not explicitly discussed
herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the
law requires only that the Board address its reasons for
rejecting evidence favorable to the claimant).


For reasons stated below if the diagnosis noted in the VAMC reports was not sufficiently clear to identify a specific diagnosis of a presumptive AO cancer then there was no evidence facially and materially favorable to the veterans claim. Furthermore, they had no obligation to develop the claim based on a vague association in the VAMC reports of the cancer to a presumptive AO condition. I have seen no new laws over writing Goober v. Derwinski

Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty
to assist' is not a license for a 'fishing expedition' to
determine if there might be some unspecified information which
could possibly support a claim . . . [and] this duty is limited
to specifically identified documents that by their description
would be facially relevant and material to the claim").


Just a quick note on your points here...

McLendon v. Nicholson, 20 Vet. App. 79 (2006) reiterated under the VCAA that a VA exam and/or opinion is required if there is:
1. competent evidence of a current disability or persistent or recurrent symptoms of a disability;
2. evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period; and
3. an indication that the disability or persistent or recurrent symptons of a disability may be associated with service or with another s/c disability; but
4. insufficient competent medical evidence on file for VA to decide the claim.

Nowhere in this veterans decision was there any indication that he was given a C&P exam for his rectal cancer, rather just the VAMC medical reports were referenced.

A C&P exam is required as a part of developing and processing a claim for disability, is it not? According to this case (and others), it is.

Also, in Green (Victor) v. Derwinski, 1 Vet App 121 (1991) held that the duty to assist requires "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one."

In Gobber, was this case referenced thus overturning this decision (I have not had a chance to review Gobber, and you clearly have so I thought I would ask)?

http://www.nvlsp.org...Jun08sample.pdf ("Top 10" Court Cases for Advocates)

TS

#14 JT24usn

 
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Posted 26 June 2012 - 07:40 PM

In regards To the before Mentioned rectal cancer. Still rectal cancer is not considered an AO presumptive, and is not to my understanding part of the soft tissue. It would take a good IMO probably. No exam would be garnered for a condition that is not an AO presumptive3.309(e) existed one year prior to service 3.309(a) or if wasn't in the STRs. What would be te meaning of opening the claim without a strong private
Doctor opinion? JMHO

Note 1: The term “soft-tissue sarcoma” includes the following: Adult fibrosarcoma Dermatofibrosarcoma protuberans Malignant fibrous histiocytoma Liposarcoma Leiomyosarcoma Epithelioid leiomyosarcoma (malignant leiomyoblastoma) Rhabdomyosarcoma Ectomesenchymoma Angiosarcoma (hemangiosarcoma and lymphangiosarcoma) Proliferating (systemic) angioendotheliomatosis Malignant glomus tumor Malignant hemangiopericytoma Synovial sarcoma (malignant synovioma) Malignant giant cell tumor of tendon sheath Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas Malignant mesenchymoma Malignant granular cell tumor Alveolar soft part sarcoma Epithelioid sarcoma Clear cell sarcoma of tendons and aponeuroses Extraskeletal Ewing's sarcoma Congenital and infantile fibrosarcoma Malignant ganglioneuroma

Edited by T8r, 26 June 2012 - 07:53 PM.


#15 Troy Spurlock

 
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Posted 26 June 2012 - 09:28 PM

In regards To the before Mentioned rectal cancer. Still rectal cancer is not considered an AO presumptive, and is not to my understanding part of the soft tissue. It would take a good IMO probably. No exam would be garnered for a condition that is not an AO presumptive3.309(e) existed one year prior to service 3.309(a) or if wasn't in the STRs. What would be te meaning of opening the claim without a strong private
Doctor opinion? JMHO

Note 1: The term "soft-tissue sarcoma" includes the following: Adult fibrosarcoma Dermatofibrosarcoma protuberans Malignant fibrous histiocytoma Liposarcoma Leiomyosarcoma Epithelioid leiomyosarcoma (malignant leiomyoblastoma) Rhabdomyosarcoma Ectomesenchymoma Angiosarcoma (hemangiosarcoma and lymphangiosarcoma) Proliferating (systemic) angioendotheliomatosis Malignant glomus tumor Malignant hemangiopericytoma Synovial sarcoma (malignant synovioma) Malignant giant cell tumor of tendon sheath Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas Malignant mesenchymoma Malignant granular cell tumor Alveolar soft part sarcoma Epithelioid sarcoma Clear cell sarcoma of tendons and aponeuroses Extraskeletal Ewing's sarcoma Congenital and infantile fibrosarcoma Malignant ganglioneuroma


Angiosarcoma of the colon and rectum is a soft tissue sarcoma and it is listed as one of the presumptive conditions of AO exposure, as well as Leiomyosarcoma of the rectum. Also, there is no one year requirement for soft tissue sarcomas where AO exposure is concerned..."the veteran qualifies no matter when these diseases first appear."

The sad thing about this veterans claim is the poor usage of the phrase "colon cancer" claimed as the condition related to AO exposure without giving it the proper classification by the VSO who originally filed the claim.

After reading all of the medical reports on this veteran, I believe that which was described of his cancer more aptly fits what Angiosarcoma or Leiomyosarcoma as the cancer he was treated for. And yes, clearly it may very well take an IMO to get this...either way there are more soft tissue cancers listed under AO exposure presumtive conditions than commonly known or understood. That is why I bought the Lexis Nexis books, because they are far more thorough and concise than mere searches on the internet or reviewing past BVA rulings alone.

Also of note, a sarcoma is a cancer of the connective or supportive and soft tissue and are common malignancies found in the breasts and colon...

Sarcomas involve muscle and soft tissues...and the colon is a muscle lined with soft tissue.

Again, just to reiterate, Angiosarcoma of the colon and rectum is a soft tissue sarcoma and it is listed as one of the presumptive conditions of AO exposure, as well as Leiomyosarcoma of the rectum.

Sadly most VSOs and veterans don't know that they are, among other soft tissue sarcomas listed under the presumptive conditions of AO exposure, which is why so many claims for "colon" or "rectal" cancer due to AO exposure are denied at both the RO and BVA level, because they're not properly classified and claimed for what they really are by medical terminology vs. layman's terminology.

#16 carlie

 
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Posted 26 June 2012 - 11:52 PM

Mods, feel free to move this topic to the appropriate forum if I have posted it within the wrong one.

I am getting ready to go head to head with the VA helping another Vietnam veteran reopen a claim vs. filing it as a new one because the original claim was not only incorrectly filed by the county VSO (that I hope to replace soon, interview is tomorrow for the job),
but the VA RO in its denial really didn't address any evidence for or against the claim and was rather vague about it.
What exactly, did the "county VSO" submit a claim for?
What exactly, was denied?
What exactly, is stated in the Reasons and Bases Section?

I made a great investment buying two books from Lexis Nexis that focuses on case law, etc. and the CFR/USCS on veterans benefits, and in reading it I cannot help but question something. Here is what I gleaned from the text:
This is probably the VBM and related USC/CFR books.
Lexis Nexis distributes but these are written by attorneys at NVLSP.
Great - must have books - my guess is that the majority of VSO'/SO's are not even familiar with them.


"The new definition of "new and material evidence" has changed and is applicable to any claim finally denied received on or after August 29, 2001.

New evidence means existing evidence not previously submitted to agency decision makers."

>Okay...so what if a veteran, by whatever means, submitted "evidence" to the RO [BUT] the RO 'never' really considered it and/or cited it in their decision of denial?

Just because "evidence" is submitted to agency decision makers does NOT necessarily mean that that evidence was actually reviewed much less considered by the [decision makers].

If the evidence in question is listed in the evidence section of the decision, it is factored in as having been considered.
Remember the VA decision maker owns the scale, they have the authority on weighing the evidence,
also it's credible and probative value.
The VBA does not have to list or discuss each item of evidence individually.
Example Evidence List:
SMR's dated 1/27/1965 thru 12/22/1968
VAMC medical records dated 5/3/1972 thru 6/4/1975, 2/24/1977 thru 7/24/1999.
Now a piece of medical evidence that is extremely specific in diagnosis/treatment,
to factor in for support for a grant of SC, IMO there is a reg that states this specific type
of evidence must be considered in the decision and why VBA did not use the positive evidence
to grant the claim.
The regs are very clear on N&M evidence.

Thoughts?

"Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim."

>What if all the evidence on file is generated by the VA Medical Center, and as we are all human, to be human is to er. That being said, the rectal cancer that this veteran was diagnosed with was given a particular name, which could qualify as a 'soft tissue sarcoma,' a presumtive condition of AO exposure.

4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

[41 FR 11292, Mar. 18, 1976]


Then again, it could have been misdiagnosed altogether yet operated on just the same (and incorrectly with three follow-up corrective surgeries that included a stint in the bladder sphincter muscle - which in and of itself is another claim, either tort (malpractice) or subject to disability compensation according to some citations I read in the Lexis Nexis books).
In relation to a VAMC "misdiagnosed", "corrective surgeries" or VAMC "malpractice - this could be claimed
under FTCA if done within two years of knowing, AND/OR an 1151 for additional residual disability.

"New and material evidence can neither be cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim."

>Again this begs the questions, what if the decision makers NEVER considered it?
Again - check the Evidence Section.
Keep in mind,

§ 3.156 New and material evidence.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

The advocacy tip in these books state that an advocate needs to focus on the reason(s) for the denial in asking to reopen a claim.
Very true, of course it's true - but it's true for any and all claim issue that have been denied, or adjudicated
with a lowball percentage. Always focus on the reason/s for denial - exactly what evidence was or was not
factored into the evaluation of percentage and all the what's, why's and when's for all individual effective dates.

Given the decision of denial on this veteran, which is vague and makes NO reference to any diagnosis or specific evidence; I feel that reopening it won't be that difficult, it's their anticipated denial based on "new and material evidence" I want to nip in the butt before they can give it.

Thoughts?



#17 carlie

 
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Posted 27 June 2012 - 12:17 AM

If there is a medical report offered as evidence and the VA neither considers it or lists it that makes two prongs of the three steps for a CUE. The third step depends on if the excluded evidence would have changed the outcome of the rating decision. Then that gets into other areas of "reasonable minds" and "undebatable certainty" which are really the judgement of the VA. That is when you need a lawyer.


john,
This is one of the few times I have to say that I do not agree with the above,
as posted, I see it as being too much of a blanket statement -
and I think you will understand this.
So, I'm just clarifying a little for newbies.
I'm probably just being anal - (NO PUN on the veterans condition).
JMHO

A determination of CUE is a three-pronged test:
(1) either the correct facts, as they were known at the time, were not before the adjudicator
(i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated)
or the statutory or regulatory provisions extant at the time were incorrectly applied;
(2) the error must be undebatable and of the sort which, had it not been made, would have manifestly
changed the outcome at the time it was made; and
(3) a determination that there was CUE must be based on the record and law that existed at the time
of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310 (1992).
CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law,
that when called to the attention of later reviewers compels the conclusion,
to which reasonable minds could not differ,
that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993).

#18 JT24usn

 
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Posted 27 June 2012 - 01:25 AM

Angiosarcoma of the colon and rectum is a soft tissue sarcoma and it is listed as one of the presumptive conditions of AO exposure, as well as Leiomyosarcoma of the rectum. Also, there is no one year requirement for soft tissue sarcomas where AO exposure is concerned..."the veteran qualifies no matter when these diseases first appear."

The sad thing about this veterans claim is the poor usage of the phrase "colon cancer" claimed as the condition related to AO exposure without giving it the proper classification by the VSO who originally filed the claim.

After reading all of the medical reports on this veteran, I believe that which was described of his cancer more aptly fits what Angiosarcoma or Leiomyosarcoma as the cancer he was treated for. And yes, clearly it may very well take an IMO to get this...either way there are more soft tissue cancers listed under AO exposure presumtive conditions than commonly known or understood. That is why I bought the Lexis Nexis books, because they are far more thorough and concise than mere searches on the internet or reviewing past BVA rulings alone.

Also of note, a sarcoma is a cancer of the connective or supportive and soft tissue and are common malignancies found in the breasts and colon...

Sarcomas involve muscle and soft tissues...and the colon is a muscle lined with soft tissue.

Again, just to reiterate, Angiosarcoma of the colon and rectum is a soft tissue sarcoma and it is listed as one of the presumptive conditions of AO exposure, as well as Leiomyosarcoma of the rectum.

Sadly most VSOs and veterans don't know that they are, among other soft tissue sarcomas listed under the presumptive conditions of AO exposure, which is why so many claims for "colon" or "rectal" cancer due to AO exposure are denied at both the RO and BVA level, because they're not properly classified and claimed for what they really are by medical terminology vs. layman's terminology.


I spoke too soon Troy a d I apologize. I have never seen recttal cancer sc before. Then again brain cancer never was before until I saw an article. On here. Good luck. Hope you get the opinion you need or information. Since it was previously denied before you will have an uphill battle, but the eteranseems to have an advocate on his side.

Respectfully
T8r

Edited by T8r, 27 June 2012 - 01:30 AM.


#19 Hoppy

 
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Posted 28 June 2012 - 01:25 PM

Gobber is thrown into the mix when there is a question as to whether or not the evidence supported the claimed condition. Basically it is just a way of saying you do not have a CUE just because there was a question as to the validity of the interpretation of evidence of record at the time of a prior determination. I use McLendon often when claims are denied without a C&P exam to pressure the VA into scheduling a C&P. The problem with McLendon is it does not address how the raters are to determine if the claimed condition is the same condition as treated in the military or the presumptive condition you are seeking. It takes all four requirements of Mclendon. The raters can say they did not need a C&P due to the fourth provision of Mclendon. They can easily say we thought there was sufficient evidence to “decide” the claim without a C&P and they have circumvented Mclendon. The fact that you can later show that there was not sufficient evidence by submitting new evidence does not change the prior determination.

You are trying to reopen a claim. The failure to provide a C&P is a failure in the duty to assist. Failure in the duty to assist is not a CUE. You need a CUE or new and material evidence to re-open a claim. If the claim had not been closed your argument might get you a C&P.

There are many who believe the VCAA did little to cause the VA to liberalize scheduling C&P exams. However, to answer your question, C&P exams are not required to deny, award or rate a claim (see 4 of McLendon). I would guess more than half the denials I read on the BVA are denied without a C&P. I won service connection on my angioedema claim with only an IMO. They applied #4 of Mclendon. The decided the evidence on file was competent without a C&P.

Many veterans also try to cite the liberalized interpretation of the evidence rule. The bottom line is that if the raters want to play dumb and the diagnosis does not jump of the page they can and will ignore you unless you get a doctor to connect the dots for them.

The VA refused several requests to give me a C&P. Why did they not give me a C&P? It is because the diagnostic terms changed between the time I was in the military and the time I filed the claim. The result is the same problem you are having now. The diagnostic terms used in the military were descriptive of the symptoms. Angioedema was the diagnostic term I used on my application. The term in the rating schedule is Angioneurotic edema. The raters did not connect the dots between the terms describing the symptoms and the diagnosis of angioedema. I specifically stated the problem between diagnostic terms and descriptive terms of symptoms and the VA still refused to schedule a C&P. Eventually, I took my SMR to the head of immunology at a VA hospital and he wrote an IMO that awarded my claim.

This is why I suggested you get and IMO with new and material and not rely solely on legal arguments to cause them to re-open the claim. The conditions and terms can get confusing and the raters are not required to pull rabbits out of their hats. They are not required to resolve semantic issues unless you clearly point out that there is a semantic issue when pre loading and filing the claim. Again, it is better to get a doctor to address the semantic issues. They did not listen to me for five years when I told them the condition noted in my SMR were symptoms solely associated with angioedema. I even gave the RO copies of the ICD9 showing that the descriptive terms of symptoms in the SMR had the same code as angioedema. I even provided five post service treatment notes showing that sometimes the doctors called my post service symptoms by the same terms used in my SMR and sometimes by the diagnostic term angioedema. It really pissed me off that they would not listen to me. Eventually, Clark Evans an attorney who found me on hadit convinced me to get an IMO.

If you really want an exercise in semantic issues and how do the terms apply read boggs V. peake. This is a slight preview of what they go into “…..Second, distinguishing claims based upon distinct medical diagnoses is more accurate and reliable than distinguishing claims according to subjective descriptions of the veteran's symptoms.2 Where the veteran brings a claim for benefits based upon a medical diagnosis of a particular disease or injury, the VA must consider whether that precise, medically defined disease or injury is service connected.”

#20 Berta

 
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Posted 28 June 2012 - 02:36 PM

Troy said

"Sadly most VSOs and veterans don't know that they are, among other soft tissue sarcomas listed under the presumptive conditions of AO exposure, which is why so many claims for "colon" or "rectal" cancer due to AO exposure are denied at both the RO and BVA level, because they're not properly classified and claimed for what they really are by medical terminology vs. layman's terminology."

SO TRUE!!!!

Also one must consider if a cancer that seems to be a STS AO cancer, or any one of the other AO types of cancer, if in fact, it has metastasized from a non AO form of cancer. That possibility can be fatal to a AO claim,if the actual etiology is not a AO presumptive for of cancer.


STS cancers on the AO list are often very rare forms of cancer.

And you are SO correct here-I personally new some reps who had never considered the AO STS list regarding some of their Vietnam veteran's claims for cancer.

While these are rare, still no stone can be left unturned.

I know a local veteran who was trying to get into some class action case regarding a form of cancer years ago I forget what the class action was really about. Not a VA issue.

The lawyer sent him a letter indicating his specific cancer was not the type of cancer that the class action was all about.

I fired off a letter to the lawyer because I had prepared this vet's paperwork, with evidence that this cancer had many different descriptive medical terms and he had misinterpreted the veteran's form of cancer. As evidence I enclosed some print outs from Mayo and one of the major cancer institutes.

The lawyer sent him another letter including him in the class action case.

I lost touch and have no idea how that all turned out.

One of the biggest problems I see (and a problem that caused the VA to deny many claims years ago under the 'not well grounded theory' prior to the VCAA,
is exactly what you stated.

When we file a claim for a condition that the medical evidence does not support,because it is the wrong condition terminlogy,
we will more than likely be denied.

#21 Berta

 
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Posted 28 June 2012 - 02:51 PM

To add to Hoppy's post here:

Hoppy always gives great citations:

Boggs V Peak is a US Federal Circuit Court decision

This appears to be a Bad Water Le Jeune veteran situation ( comtaminated water at Camp LeJeune, I posted info on that at hadit before)

The BVA decision ( a 2010 remand-and this might be the same first LeJeune SC vet sced due to bad water)

states the citations Hoppy gave and states this:

“In doing so, the Board acknowledges that a change in diagnosis or
the specificity of the claim must be carefully considered in
determining whether the claim is based on a distinct factual
basis. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008).
In
Boggs, the United States Court of Appeals for the Federal Circuit
found that a claim for one diagnosed disease or injury cannot be
prejudiced by a prior claim for a different diagnosed disease or
injury, when it is an independent claim based on distinct factual
bases. However, the United States Court of Appeals for Veterans
Claims (Court) clarified in Velez v. Shinseki, 23 Vet. App. 199
(2009), that the focus of the analysis must be whether the
evidence truly amounted to a new claim based upon a different
diagnosed disease or whether the evidence substantiates an
element of a previously adjudicated matter.”

This is a powerful application of Boggs that could impact on many vets here.

http://www.va.gov/ve...es4/1033910.txt

I need to really digest this entire BVA decision.Lots of good legalise in it.

#22 Troy Spurlock

 
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Posted 28 June 2012 - 11:22 PM

The VA refused several requests to give me a C&P. Why did they not give me a C&P? It is because the diagnostic terms changed between the time I was in the military and the time I filed the claim.


For now, it's late, but this is the only point I want to address tonight.

Then or now or in the future it makes no difference where the VA cares as far as the CFRs and USCS are concerned...because no matter how out of date they are with current medical knowledge (e.g. FMS is a "chronic" medical condiiton, and not what the current CFRs state as a episodic (20% rating) vs. chronic (40% rating) condition is concerned. Thus, the VA regulations either by statute or promulgated administrative rules are outdated where the current medical information is concerned.

Which is EXACTLY why I won on appeal at the BVA within 3 months of receipt of my appeal at the BVA!!!!!!

I will address the rest of your response later...notwithstanding, thank you for your conitnued participation in this discussion.

TS

Edited by Troy Spurlock, 28 June 2012 - 11:26 PM.


#23 Troy Spurlock

 
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Posted 28 June 2012 - 11:24 PM

Troy said

"Sadly most VSOs and veterans don't know that they are, among other soft tissue sarcomas listed under the presumptive conditions of AO exposure, which is why so many claims for "colon" or "rectal" cancer due to AO exposure are denied at both the RO and BVA level, because they're not properly classified and claimed for what they really are by medical terminology vs. layman's terminology."

SO TRUE!!!!

Also one must consider if a cancer that seems to be a STS AO cancer, or any one of the other AO types of cancer, if in fact, it has metastasized from a non AO form of cancer. That possibility can be fatal to a AO claim,if the actual etiology is not a AO presumptive for of cancer.


STS cancers on the AO list are often very rare forms of cancer.

And you are SO correct here-I personally new some reps who had never considered the AO STS list regarding some of their Vietnam veteran's claims for cancer.

While these are rare, still no stone can be left unturned.


Thank you!!! Posted Image That is EXACTLY what I intend to do...leave no stone unturned!!!

Tomorrow I learn whether or not I get the county VSO position...

TS

#24 carlie

 
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Posted 28 June 2012 - 11:57 PM

Tomorrow I learn whether or not I get the county VSO position...

TS


Troy,
Good luck - hope it works out the way you want : - )

#25 Berta

 
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Posted 29 June 2012 - 05:43 AM

Good Luck Troy!!!!

Our veterans and dependents need all the help they can get these days.I sure hope you get this job (wish you were my county's VSO) and I know you will do a good job if this turns out good for you.

#26 Pete53

 
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Posted 29 June 2012 - 06:05 AM

I filed in June 1991 and my experience was they might have seen evidence but ignored it. I had medical evidence that was in my SMR's that should have granted 100% but I needed two private IMO's and three C&P's and the comment when I was granted 100% P&T in Nov 1996 that the award should have been made many years ago. Even than the award I should have gotten for an S rating for Housebound was not given till I asked specifically although it was supposed to have been considered with the 100% was not.

Troy do you take Veterans to be their Service Officers that are not in your state. My current one took over for Larry Payne a Hadit Member and does not even return email or phone calls.

#27 Troy Spurlock

 
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Posted 29 June 2012 - 07:34 PM

Good Luck Troy!!!!

Our veterans and dependents need all the help they can get these days.I sure hope you get this job (wish you were my county's VSO) and I know you will do a good job if this turns out good for you.


Thanks Berta!!!

Unfortunately I did not get the job...

Honestly I should have known better to even apply because this bureaucracy simply does not want someone like me truly helping veterans; and it's a system I despise...which is why I do what I do in fighting it in getting veterans the benefits they earned as deserve!

I'm better off doing this on my own as I always have been and will continue to be just as successful.

TS

#28 carlie

 
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Posted 29 June 2012 - 09:58 PM

Thanks Berta!!!

Unfortunately I did not get the job...

Honestly I should have known better to even apply because this bureaucracy simply does not want someone like me truly helping veterans; and it's a system I despise...which is why I do what I do in fighting it in getting veterans the benefits they earned as deserve!

I'm better off doing this on my own as I always have been and will continue to be just as successful.

TS


Troy,
ALL of the service orgs. want the reps to play ball - - their way !

#29 Troy Spurlock

 
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Posted 29 June 2012 - 10:23 PM

Troy,
ALL of the service orgs. want the reps to play ball - - their way !


Carlie and Berta, you're two of the most knowledgable and wise individuals on this board that "get it and highly respect.

Thank you!

--Just learned that the hiring decision was political vs. merit, and that one of the interview panel members who was in my corner should be reaching out to em soon. Really sad that government agencies at any level, county - city - state - or federal DO NOT care about hiring QUALITY PEOPLE to defend the rights of veterans.

TS

Edited by Troy Spurlock, 29 June 2012 - 11:09 PM.


#30 Hoppy

 
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Posted 30 June 2012 - 11:33 PM

The outdated rules argument may not work to re-open a closed claim. Consider that the rating schedule is not considered to be applicable to all claims at all times and there is flexibility built into the schedule which the RO may have ignored and would have allowed for the BVA to change a rating decision.

I am not sure where you are trying to go with the outdated regulations argument as it relates to the current veterans claim. Remember you are trying to open a closed claim. As far as I know, proving that the rating schedule was flawed or the medical evidence was flawed at the time of the original denial will not result in a CUE. As far as I know, you need a CUE or new and material evidence to reopen a closed claim. Berta, posted a court case many years ago explaining, from what I remember, that even in a case where the original decision upon which a claim was decided is found to have involved inadequate laws resulting in the law being changed either by the VA or by a later court decision does not result in a CUE. In this instance I would suspect the claim could be re-filed as a new claim. I could not find the reference to the case Berta posted. However, I will keep looking for it.

Consider that the VA only service connects chronic conditions. Thus, every service connected claim is chronic for a chronic condition. However, many have varying degrees of severity and frequency of symptoms. The rating schedule is dominated by various ratings for chronic conditions. The various ratings are for different symptoms and the requirement for medication. I posted the rating schedule for FMS below. The fact that they show an episodic 20% is specifically associated with symptoms and I do not see in any way how the recognition of episodic symptoms in the rating schedule for a chronic condition presents any contradiction to the recognition that FMS is a chronic condition. It appears the VA is of the opinion that FMS has a variety of symptoms and frequency of symptoms. Did they tell you that they are wrong and that all FMS claims should be rated at 40%? If so you could have a full time job working FMS claims. When I first came onto hadit I had a full time job because the VA did not automatically re-examine veterans diagnosed under the DSM II. The DSM II was considered a broken and inaccurate diagnostic model. The DSM III and DSM IV use an entirely different system for making a diagnosis. This often resulted in a different diagnosis.

By the way if you think the rating schedule is bad now, you should read some claims prior to 1998. The rating schedule was so full of holes getting a rating was a total crap shoot. The VA figured out there was a problem and re-wrote many conditions in which rating were based on vague terms such as infrequent and frequent. Some claims benefited from the vague terms and some were hindered. The changes in the rating schedule eliminated the use of vague terms and replaced them with specific counts of episodes. The new schedule would say things like 3 episode per week or 4 episodes per year. You will still run into veterans rated prior to 1998.

Diagnostic Code 5025 provides that fibromyalgia (fibrositis, primary fibromyalgia syndrome) with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms, is to be rated 10 percent disabling if the symptoms require continuous medication for control; 20 percent disabling if the symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but symptoms that are present more than one-third of the time; and 40 percent disabling if the symptoms are constant or nearly constant, and are refractory to therapy. A Note to Diagnostic Code 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. 38 C.F.R. § 4.71a, Diagnostic Code 5025.

#31 Troy Spurlock

 
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Posted 01 July 2012 - 07:27 PM

Hoppy...you certainly have a wealth of knowledge and information, which I appreciate, and forgive me for noting this, but you're not following along with the timeline of the discussion.

The outdated regualations, the medically inaccurate CFRs covering certain conditions (like FMS), etc. that I brought up were mere examples of other issues that I have come across myself or in helping others in response to things others said in contributing to this discussion and NOT related to the claim I am working on now for the other veteran I originally spoke of in the original posting.

Perhaps when I get some research together, on this claim I am working on, I will start a new thread specific to and on topic with that discussion (no sidetracks), to include the EXACT wording of the denial and list of evidence considered...and then perhaps we can all move forward from there; that way I may better gain from everyone's individual and collective experience in their thoughts and opinions.

Thanks!

TS

#32 Hoppy

 
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Posted 02 July 2012 - 10:10 PM

Troy

Do not feel like I am picking on you. I have told many people on the board to post some case decisions or I will consider their opinions mute, including carlie. This board gets it’s power from the fact that 1000 heads are better than one. We all learn from and build upon our collective knowledge. As a result of my training, developing claims for labor law lawyers, I personally rely heavily on case decisions in which the CFR’s are applied. I do not rely on CFR’s that are not contained within a case. There is too much room for misapplication. I usually cite CFR’s from decisions I am familiar with in my posts. In my 14 years on hadit I have read close to 1000 BVA cases covering many types of claims.

My concern as to how you planned to use the outdated medical evidence argument was preceded by the statement that I do not know where you are going with this argument. It was brought up in this thread and my intention was to address it from every angle I know. I also leave no stone unturned.

My main concern was with this statement --- (e.g. FMS is a "chronic" medical condition, and not what the current CFRs state as a episodic (20% rating) vs. chronic (40% rating) condition is concerned. Thus, the VA regulations either by statute or promulgated administrative rules are outdated where the current medical information is concerned.

Followed by the statement "Which is EXACTLY why I won on appeal at the BVA within 3 months of receipt of my appeal at the BVA!!!!!!"

You did not cite any case law contained in your appeal nor did you provide a docket number for this appeal. I take most statements made on the board that are unsupported by the applicable case decisions with a grain of salt.

Even if an issue within a thread is off topic I will continue to address any statement within the thread. There are many people reading these posts by doing word searches on hadit or even on google. Google indexes hadit posts. These people may or may not read the entire threads. I personally found hadit over 14 years ago by doing a single word search for “angioedema” on google. The google link opened up in the middle of an angioedema thread on hadit.

As stated before I challenged your statement that ”FMS… is not what the current CFR’s state”. The only reference I found was that the VA recognized episodic symptoms of FMS. Your recent response did nothing to rebut my challenge or clarify that there was any significance to the problem you identified with the CFR’s and how this problem would impact a claim. Until such time you post some case laws or docket numbers that will explain the significance of the problem you identified I will consider your statement mute.

Edited by Hoppy, 02 July 2012 - 10:10 PM.


#33 Troy Spurlock

 
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Posted 03 July 2012 - 10:38 AM

Apologies Hoppy...I didn't know you were challenging me on the FACT that did win my appeal on the incorrect and outdated CFR on FMS...equally I found your response moot since I was granted full benefits sought on that appeal.

And I misspoke on my BVA case, which was specifically appealed to have my IBS and my dyssomnia separated from my FMS rating as separate ratings as they are medically separate conditions that merely coexist with FMS.

I will post a link to that BVA ruling in my favor later (not at home, using iPhone at moment).

Lastly, again I appreciate your replies and most of all the manner in which you give them were cited cases juxtaposed to CFRs are concerned.

Again, will provide more info later...

#34 Hoppy

 
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Posted 09 July 2012 - 01:10 AM

Troy,

I am aware you won a full grant. The reason I requested the docket is to review the exact terminology provided by the BVA. I can think of only several reasons why the BVA awards a 40% rating. The award terminology usually follows closely to the examples below.

The medical records support a 40% rating.

Although the reports do not support a 40% rating the records do exceed a 20% rating and most approximate the higher rating.

The award was made by analogous rating.

The award was made by an extra schedular rating.

In other words I do not think the EXACT reason you got a 40% rating was due to the fact that you thought the CFR was outdated because of some confusion as to whether or not CFS is chronic or not. . There must have been medical evidence in the file that resulted in the rating. The raters already know that any condition that is listed in the schedule as ratable at either 20% or 40% must be considered chronic.

You can file an argument using any terminology you want. However, the terminology and reason used to make the award can be different. The VA is required to consider any filing as a request for a maximum benefit. Thus, you can make an irrelevant argument in the filing and still win a claim. However, I would not recommend this. I have seen way to many claims in which the VA has only dealt with the irrelevant argument and failed to address the core issues in the claim.

One word or one phrase that is vague or irrelevant in a filing or a medical report can result in a denial. Thus, I prefer to argue using the exact terms that I have previously seen in successful awards. Considering my experience with terminology issues I do not consider my points to be mute just because in this instance you were successful. I still have no reason to believe that the argument you advanced was relevant to your claim. Maybe you threw in some other arguments that specifically pointed out the exact medical evidence. Maybe the raters did their job and figured it out on their own. When arguing a higher rating all I do is focus on the medical evidence and show the raters how to connect the dots between the medical evidence and the rating schedule. I have never used vague references to the fact that the cfr's or rating schedule being flawed. As far as I am concerned the medical evidence supporting a higher rating is the only EXACT reason higher ratings are awarded, not a claim that the CFR’s or rating schedule is flawed.

Sorry to make such a big fuss about semantics. However, the VA raters can be masters at word games. I have seen many claims in which the veteran’s filing was slightly vague or not focused and rather than the raters developing the claim they denied the claim by only addressing the vague reference noted in the filing. One claim that immediately comes to mind involved a filing for an increase of an already service connected panic disorder. The claim was denied because the veteran filed for an increase for his anxiety disorder. The rater could not or did not want to connect the dots. Panic disorder is an anxiety disorder. One simple argument explaining that Panic Disorder is an anxiety disorder with some attached supporting medical literature got the claim back on track. I recently assisted a veteran whose claim was denied because a doctor said that, it is well established in the medical community that there is a relationship between the veteran’s current condition and the condition he was diagnosed with in the military. I submitted a statement that there is peer reviewed research showing the relationship between the two conditions, and the claim was awarded. I have seen BVA cases where the reference to research studies advanced a claim and resulted in the veteran winning the claim. I have never seen a claim where a vague reference made by a doctor as to knowledge in the medical community advanced a claim.

I am glad you won your claim. All I am doing here is splitting hairs about terminology. There are a lot of people who read these posts and I consider terminology an important issue. I do not want to give the impression that there is any way to win a higher rating other than developing the medical evidence. Relying on a sole argument that the laws are flawed may be ignored by the raters. According to the late Alex Humphries, “medical principals dominate legal arguments”.

#35 Troy Spurlock

 
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Posted 09 July 2012 - 09:46 PM

Hoppy,

While you bring forth valid points and information, one thing has remained consistent in all your responses...you make far too many assumptions (i.e. hasty generalizations - a logical fallacy) about what I (or another person) is arguing without knowing any facts. You know, it is okay to take a leap of faith and just share your knowledge and experiences with suggestions and further questions to illicit more information.

You presume this or that, or maybe this if not that...without really knowing anything for certain; and the manner in which you come across teeters on (or is tantamount to) being somewhat condescending.

For example: "I still have no reason to believe that the argument you advanced was relevant to your claim. Maybe you threw in some other arguments that specifically pointed out the exact medical evidence. Maybe the raters did their job and figured it out on their own...I have never used vague references to the fact that the cfr's or rating schedule being flawed. As far as I am concerned the medical evidence supporting a higher rating is the only EXACT reason higher ratings are awarded, not a claim that the CFR’s or rating schedule is flawed."

Bottom line is I did, have done, and still do just as you do if not more...WITH the BIG DIFFERENCE being that I have a legal education and professional background that gives me a better grasp (understanding and proper interpretation thereof) of the law (which is why I have been successful in my own claims, and those of the other veterans I have helped to date); can you say the same?

Notwithstanding, though I have my own understanding and interpretation of the law...coming here and asking what others have experienced helps me solidify that understanding and interpretation that much more. So rather than question my basis for asking, just answering the question (like Berta and others have) is far more fruitful to the intended discussion.

------------------------

Now, regarding my appeal (which was decided by a DRO not the BVA) of the original 20% FMS rating, I did all the legal and medical research and cited appropriate cases and medical literature to substantiate my argument that the differentiation between episodic and chronic where FMS is concerned is medically inaccurate; as such, the CFR differentiating FMS as episodic vs. chronic is equally inaccurate because it doesn't conform to the medical evidence established in diagnosis and treatment of FMS as a CHRONIC condition.

The evidence the VA cited in my appeal were my own letters and that of my wife with the usual follow-up outpatient treatment reports, nothing more. In the end all the VA said was "Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating."

They also agreed to another argument I proffered in my appeal: "...the VARO will concede that any symptoms that is found to be associated to the veteran's service connected fibromyalgia by a medical professional will be recognized...If a medical professional states that a symptom is related to fibromyalgia, it will be more closely looked at, analyzed and rated."

The rest of the rating decision is filled with the usual regurgitated CFR and other formatted language seen in every rating decision. Either way, the VARO conceded to my lengthly legal and medical juxtaposed arguments and granted the 40% rating, even if they didn't come right out and blatantly say I was right for the reasons given...the VA rarely if ever does. And if it does, it is usually somewhat cryptic - case in point: the above quoted section of my appeal where the VARO admitted it would concede to any symptoms being associated with FMS shall be recognized, considered, analyzed and rated appropriately.

As for my appeal at the BVA getting my Irritable Bowel Syndrome and insomnia separated from the FMS rating, I was successful at that too...the argument I advanced and agreed to was echoed in writing by my VA primary care physician, which was the tilt factor in my favor of winning this appeal: http://www.va.gov/ve...es3/0615044.txt

Thank you Hoppy for your time and interest in this discussion, it was truly appreciated.

I hope you will contribute when I post a new thread specific about the veteran's case I am working on now, and I will post more details and (without using his personal information in order to maintain confidentiality) parts of my theories of proposed arguments. Your insight, as well as Berta's and many others here would naturally be greatly appreciated.

Sincerely,

TS

Edited by Troy Spurlock, 09 July 2012 - 09:53 PM.


#36 Hoppy

 
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Posted 16 July 2012 - 10:31 PM

Troy,

Sorry for the tardy response, I have been dealing with some medical issues of my own.

As stated in a previous post my concern was

My main concern was with this statement --- (e.g. FMS is a "chronic" medical condition, and not what the current CFRs state as a episodic (20% rating) vs. chronic (40% rating) condition is concerned. Thus, the VA regulations either by statute or promulgated administrative rules are outdated where the current medical information is concerned.

Followed by the statement "Which is EXACTLY why I won on appeal at the BVA within 3 months of receipt of my appeal at the BVA!!!!!!"

I felt this statement failed to address the importance of medical evidence. Thus, I launched an investigation to determine that medical evidence was a significant factor in winning your claim. My primary approach here on hadit is to advise any veteran who reads any thread or single post that medical evidence re-opens closed claims and wins claims. As it turns out I was successful in identifying by your own words the medical evidence in the file at the time your claim was awarded. Had you not emphasized the importance of your legal argument by stating your success was due “exactly” to a single reference to a legal argument, I would not have taken exception to your choice of terminology. As I said before my concern is the choice of words used. Had you made any reference to the impact medical evidence had on your claim the issue would not have been addressed by me. As far as I am concerned your recent post shows that this issue has been sufficiently addressed in this thread.

"Bottom line is I did, have done, and still do just as you do if not more...WITH the BIG DIFFERENCE being that I have a legal education and professional background that gives me a better grasp (understanding and proper interpretation thereof) of the law (which is why I have been successful in my own claims, and those of the other veterans I have helped to date); can you say the same?"

Regarding the above paragraph.

My focus is on providing veterans with strategies on how to develop medical evidence and rebut bogus C&P exams. I work with veterans locally by going to their clinical appointments with them and talking directly to clinicians. In cases where this is not successful I have clinicians in my stable that will put their curriculum vitae at the front of the reports I write and sign them off. I have been very successful with reports that I have collaborated with these clinicians in as much as the reports were cited by DRO’s as evidence used to award a claim. I also deal with claims involving the proper interpretation of the law.

I do have significant medical/legal training with a specific emphasis on veteran’s claims. However, considering the non specific identification of your training and our previous mutual understanding that credentials are not as important as results I will not go into details about my training. You might be surprised

In regards to your question about results “can you say the same?” The answer is Yes, However, you can hear it from other folks who have been on this board for decades. You may have already known the answer to your question if you checked out the forum “success stories” as I suggested in a previous post.

Check out the titles “Official letter received” by deanbrt . “Thank you Hoppy” by first infantryman’ and lastly “Brown envelope/Hoppy” on the second page of posts. Check out the comments by long time hadit contributors carlie, jbasser, halos2, Terry Sturgis and pete53. They do not keep a score card hear on hadit. However, I can tell you that my PM box is full of thank you notes going back many years. If you note the label right below my picture you will see that I am considered an ELDER on this site. The moderators of this site do not promote people to ELDER solely by the length of time you have been a hadit member. They give consideration to the quality of a person’s contribution to this site. Throughout the last 14 years I have dealt with all my veteran’s activities on this public board. I even discuss claims for veterans who I have assisted through local outreach. One claim for a veteran I assisted had four previous denials and been closed for four years prior to my involvement. Additionally, the claim had been dropped by both the DAV and the VFW. The claim turned out to be a slam dunk with full development and was awarded within a year and a half after my involvement.

As far as your comments go about me being condescending, presumptuous and any other judgment you came up with, consider the following. I think that the possibility someone may interpret my questions and statements as such goes with the territory. Your lack of detail in your posts puts me in a position to investigate. As such, my presumptions are designed to cause the uncovering of the omitted details. I did challenge and investigate what I considered an incomplete representation of the reasons claims are awarded. Your lack of reference to medical merits involved in winning a claim was being investigated. As such, my prior non military training performing depositions and as an investigator/interrogator allows for a investigator to be condescending, presumptuous or give rise to any personality trait that will achieve a result. I am sure you are aware of this as a result of your military training as an MP.

Thanks for posting the citations in regards to the medical merits of your claim and keep up the good work you do for veterans.

Edited by Hoppy, 16 July 2012 - 10:33 PM.


#37 deanbrt

 
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Posted 17 July 2012 - 11:55 AM

I have written this before but am happy to do so again. If it were not for the brilliant (and I mean brilliant) summation Hoppy made on my behalf before the Board of Veterans Appeals, I am not convinced that I would have won and had the satisfaction of reading "100%, Permanent and Total, no further examinations scheduled" yesterday.
What was so striking to me then and now was the hours and hours he put into it for me researching and on the phone.

#38 Pete53

 
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Posted 17 July 2012 - 01:34 PM

Troy I am sorry you did not get the job I think you could have helped a lot of Veterans. In a way although I really respect the work that Hoppy does I think that sometimes we just have to try our best and the VA is so inconsistent and unable to read medical information that sometimes even is Hoppy is right you can still win.

Hoppy I consider you to be brilliant and also selfless helping Veterans with hours of research and excellent arguments, If I have a technical issue with the VA your thoughts are most appreciated. I also feel its important to support claimants but also tell them the facts that they need on how solid a claim they have. After all the really big claims take years most of the time and for most of us we held out before making our claim.

I hope that you both continue to help Veteran and don't forget that there are thousands who look at your posts every month.

Thank you both

#39 donh777

 
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Posted 17 July 2012 - 02:08 PM

A moderator should close this thread as it seems to be getting personal..Just help a vet is the reason we are here. There is a proper time and place to vent, b ut this is not IT.

#40 carlie

 
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Posted 17 July 2012 - 03:27 PM

A moderator should close this thread as it seems to be getting personal..Just help a vet is the reason we are here. There is a proper time and place to vent, b ut this is not IT.


Actually the thread is great for study on va claims.
Neither Troy not Hoppy have been out of line and both have remained cordial,
in their own way in reply's.
There is no flame I see in this thread.
Troy and Hoppy are both here helping vets - disagreements are certainly allowed.




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