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Secondary Vs New Advice


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#1 TLaff

 
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Posted 07 July 2012 - 05:45 AM

I have Service Connected disabilities of the neck and back spine conditions, i contacted Dr. Bash to see if my ratings were correct and he sent me an IMO with several claims for me to file listed below. I assume they are all Secondary problems (claims) resulting from my original claims but the VA placed (new) or (secondary) behind each one and said i need to send evidence in which they originally lost and i recent Dr. Bash's IMO. What i am trying to find out is because the VA is placing (new) behind most of the claims are they trying to get around the fact that they are a result of my original claims? or is what they are doing correct? any advice would be greatly appreciated. All the claims below started after my neck surgery (triple fusion).

Contentions: Chronic daily headaches/ migraines (New), Major depressive disorder (mental condtion) (New), Renal disease (Secondary), Erection and ejaculation condition (Secondary), Special Monthly Compensation (New), Loss of Use (New), Neurogenic/ spastic bladder condition (New), Bowel condition (Secondary), Throracic Spine condition (Secondary), Sciatic distriution pain with foot weakness (New), Loss of use of left lower extremity (New), Thoracic outlet syndrome with numbness of the ipsilateral fourth and fifth digits (New), Radiculpathy upper extremities (including shoulder pain, bilateral hand weakness, radiating pain into right arm involvin (New)

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#2 Berta

 
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Posted 07 July 2012 - 06:20 AM

"What i am trying to find out is because the VA is placing (new) behind most of the claims are they trying to get around the fact that they are a result of my original claims? or is what they are doing correct? any advice would be greatly appreciated. All the claims below started after my neck surgery (triple fusion)."




Secondary claims can only arise from established SC claims.

What is your 40% for?

Did Dr. Bash give medical rationales to warrant secondary potential SC that stemmed from the original SC 40% disabilty (ies)
or did Dr. Bash discover potential for additional 'new' claims ?

A secondary claim certainly arises from an original SC claim, but only when it is formally claimed.

Once it is formally claimed it becomes a 'new' claim which is what appears to be the case here and that this is what the IMO from Dr. Bash can support.

If the VA is considering some of these claims as "new" they will send you a VCAA letter .

Make sure you get a proof of mailing for everything you send.

My VARO ignored 2 IMOs I had from Dr. Bash for many years. and the BVA was the sole VA entity to read them, in spite of the fact that my vet rep said he personally gave them to the DRO at a DRO review.

The subsequent SSOC didnt even mention he did that.

Dr. Bash was livid about my ordeal ,suggesting I contact my Congressman or the press--but I let the BVA transfer play out.. I sent the RO my IMOs numerous times and the BVA took note of that fact in their award letter.
But I did tell of this ordeal in testimony I gave to the H VAC during Shreddergate.Posted Image



I really dont think my situation happens too often but when you get their VCAA letter, I advise to respond to that letter with another copy of the IMO and enclose copy of your signed and dated VCAA response form.

Edited by Berta, 07 July 2012 - 06:26 AM.


#3 broncovet

 
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Posted 07 July 2012 - 08:41 PM

You said the VA admitted they lost your records. Did they do so in writing?
I suggest you not "guess" or assume they are secondary conditions, but get to the bottom of this, as you need that information to know what evidence to submit.
They could be informal or inferred claims. You can try calling or send an IRIS if you are not sure..after you have thoroughly read and reread all your VA mail, especially the VCAA letter.

#4 TLaff

 
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Posted 12 July 2012 - 03:34 PM

"What i am trying to find out is because the VA is placing (new) behind most of the claims are they trying to get around the fact that they are a result of my original claims? or is what they are doing correct? any advice would be greatly appreciated. All the claims below started after my neck surgery (triple fusion)."




Secondary claims can only arise from established SC claims.

What is your 40% for?

Did Dr. Bash give medical rationales to warrant secondary potential SC that stemmed from the original SC 40% disabilty (ies)
or did Dr. Bash discover potential for additional 'new' claims ?

A secondary claim certainly arises from an original SC claim, but only when it is formally claimed.

Once it is formally claimed it becomes a 'new' claim which is what appears to be the case here and that this is what the IMO from Dr. Bash can support.

If the VA is considering some of these claims as "new" they will send you a VCAA letter .

Make sure you get a proof of mailing for everything you send.

My VARO ignored 2 IMOs I had from Dr. Bash for many years. and the BVA was the sole VA entity to read them, in spite of the fact that my vet rep said he personally gave them to the DRO at a DRO review.

The subsequent SSOC didnt even mention he did that.

Dr. Bash was livid about my ordeal ,suggesting I contact my Congressman or the press--but I let the BVA transfer play out.. I sent the RO my IMOs numerous times and the BVA took note of that fact in their award letter.
But I did tell of this ordeal in testimony I gave to the H VAC during Shreddergate.Posted Image



I really dont think my situation happens too often but when you get their VCAA letter, I advise to respond to that letter with another copy of the IMO and enclose copy of your signed and dated VCAA response form.




If i could get your email address i could send you the IMO and evidence Dr. Bash used.

#5 TLaff

 
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Posted 12 July 2012 - 03:39 PM

My 40% is 30 for a triple fusion, 20 for my lumbar and they overlooked my thoracic area which im not sure waht to do about and in which i have appeals awaiting BVA because i think i was rated to low for cervical and lumbar, thats why i originally contacted Dr. Bash.
If i could get your email address i could send you the IMO and eveidnec Dr. Bash used.?

#6 TLaff

 
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Posted 12 July 2012 - 03:49 PM

If i could get your email address i could send you the IMO and evidence Dr. Bash used.



Also they said my claims will take up to Dec 2012 and i filed them in JULY of 2011 thats 17 months.

#7 Berta

 
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Posted 12 July 2012 - 04:43 PM

I am sorry but I never handle claims stuff in emails or by phone, PMS, etc.

You need a good vet rep to go over the IMO, and the issues you have on appeal, and then see what has been claimed or should be claimed as secondary , also how the issues were claimed in the appeal , and what the IMO specifically supports.

We have vets here more familiar with these types of conditions then I am and maybe they will respond here and you could email them.

#8 Berta

 
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Posted 13 July 2012 - 06:55 AM

I went over all this again and certainly agree with Broncovet's point here:

"They could be informal or inferred claims. You can try calling or send an IRIS if you are not sure..after you have thoroughly read and reread all your VA mail, especially the VCAA letter. "

By all means you should submit the IMO to the VA and use a 21-4138 cover letter explaining it's relevance to your claim.

"My 40% is 30 for a triple fusion, 20 for my lumbar and they overlooked my thoracic area which im not sure waht to do about and in which i have appeals awaiting BVA because i think i was rated to low for cervical and lumbar, thats why i originally contacted Dr. Bash."

I suggested getting a vet rep because I dont know how the NOD was prepared nor how they responded to it with a SOC and any C & results.

I sent Dr. Bash my SOCs, and C & p results for his IM0s and I am sure he left nothing lacking in his IMO in your case as he is very thorough and his IMO might have raised issues they are going to infer.

But Broncovet is correct and IRIS could possible define your issues better.

You mentioned "ALL" of your claims so IRIS would be the best bet to verify those claims and their status and maybe get more info as to the "new" claims.

#9 broncovet

 
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Posted 13 July 2012 - 07:19 AM

Wow..thanks Berta...I need a little affirmation once in a while. It was especially sweet coming from you as we all have the utmost of respect for you.


It sometimes boils down to the 5 P's. Proper preperation prevents poor performance. It would be almost impossible to write a good appeal if you did not read the decision you are appealing thoroughly.
I know reading decisions is dry and boring. I also know that some people are not that good of "readers". Its okay. You have 3 choices:

1. Get past your lack of reading skills and read and reread your decision and proceed. Look up terms you dont understand. Keep at it until you do understand it.

2. Get someone else, who is a good reader, to do it for you.

3. "Shoot from the hip"...making guesses and speculation as to what the decision says, and base your long winded appeal on that. Dont expect a favorable outcome if you do this one, but look for someone to blame...the Va, your VSO, your dog...the mailman, etc.

Edited by broncovet, 13 July 2012 - 07:21 AM.


#10 broncovet

 
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Posted 13 July 2012 - 07:36 AM

I will add, and Im guessing Berta does this too, that I read my decision, especially the "reasons and bases" with a view to "refute" their reasons in the appeal. I never tell the VA "how sick I am" or how much I need the money. I have never seen benefits awarded yet on "how sick you are".

But, for example, if the VA says they are" denying your hearing loss because it has been xx years since you have been in the service."
I "pounce" on that statement like a cat. You can read over the hearing loss criteria, and nowhere does it say, "rate the Veteran on how long it has been since military service...if its been over xx years, deny the claim". Nowhere. It isnt one of the criteria. The VA can not deny my benefits because I wear a beard or take my kids to disneyland. They have to base their decision on the criteria, which you can look up.

Many BVA decisions state "the criteria has been met" or the criteria has not been met. You either meet the criteria or you dont, and whether you wear a beard, or how long since military service, is not one of the criteria. Its a trick the VA often does, because it "sounds good" but is complete VA crapola.

#11 Berta

 
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Posted 13 July 2012 - 02:53 PM

Excellent.

"I will add, and Im guessing Berta does this too, that I read my decision, especially the "reasons and bases" with a view to "refute" their reasons in the appeal. "

You bet. Refuting the VA is what I live for!!!!

Unless the decision is a good one.

I view the NOD as the first avenue of attack,meaning it is one of the most important responses a veteran or survivor ever makes to the VA.

At AMU I had to learn how to develop War plans so why not do that for the VA too.

My "war plans:" were simply a list of the goals I felt I had to reach in order to succeed.and I listed different approaches I could use. It all boiled down to finding and producing evidence-some easy to find and other stuff took time but in the long run persistence and leg work do pay off.
My last claim didnt need a war plan rigamorale but many many claims need the claimant to sit down in a quite place, and read and read again the denial and then take notes on what they need to develop. And then put it away for a week or so and read it all again. and again. Your suggestion is great-have someone else read it too.

A NOD should not be too long and involved...simply tell them why their decision is wrong and in the NOD refer to and attach copies of anything that proves your point.

NODs I wrote over the past 17 -18 years turned decisions around for my husband, for me a few times, and even for my daughter, a veteran.

But for my main claims the proper decisions took years to arrive.

As you said the NOD and really no submission to VA should involve personal problems ,grief, pain and suffering...etc ...the VA does not have the time to read that stuff and it does nothing to advance the claim.

I have stuff here from VA over the years that I have read many many times before responding to them.

It took me weeks to prepare my 2003 AO DMII claim. It was an additional negligence claim against VA but I could not FTCA or 1151 them again for the same death so I really had a heck of a time writing it up properly.

I prepared the' war plan' and took it step by step as the evidence I would need.

This is the claim I never got a proper VCAA letter for. So I wrote myself one.

During the next 6 years this claim took to award,I continually went over my exhibits every week and submitted more evidence during that time..

When I obtained the IMos, I was able to prepare a cover letter that Dr. Bash had no problem with as to the exhibits I listed.

He went over everything in the record of course, but there were specific pieces of evidence he had to focus on.

Although I had won FTCA and 1151 without an IMO, suddenly VA, in order to deny this claim right away in 2004, found me to be not competent to render my own medical opinion and diagnosis based on the established medical record.

Not competent my butt

However, a strong IMO can be the best investment any of us ever make.

Although they are costly, an IMO fee is absorbed in time with additional comp we might never see without the IMO.

Edited by Berta, 13 July 2012 - 03:09 PM.





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