Odds Of Success
Posted 30 September 2012 - 09:16 AM
Posted 30 September 2012 - 01:05 PM
Posted 30 September 2012 - 04:39 PM
I was haunted by the words someone said to me early on. "At BVA they have lawyers that can read...."
But it is all a crap shoot. At the right VARO and with the right DRO, you win.....
Posted 30 September 2012 - 08:18 PM
If a veteran lives in areas like Florida then SP Pete is a very busy place so expect longer waits.
If you live in Huntington WV Ro jurisdiction then the process should be faster.
This is what I have seen over the years.
if you are in Indy or houston, I feel sorry for you.
Posted 01 October 2012 - 12:33 AM
Posted 01 October 2012 - 10:43 AM
I NEED HELP WITH MY BVA APPEAL ON ALL MY CLAIM THEY HAVE TURN ME DOWN I HAVE BEEN FILING SENCE 2005 I FILE FOR SSA AT THE SAME TIME I FILE FOR VA DISABILLITY BUT I ? RECIEVED SSDI DISABILLITY IN DEC 21 2006 FOR THE SAME THING I FILE FOR WITH VA THEY HAVE TURN ME DOWN AGAIN NOW I NEED TO FILE BVA APPEAL
Please start your info and questions as a new topic in the forum it relates to.
Posted 01 October 2012 - 10:45 AM
Thanks for sharing. So , DRO reviews take longer than BVA with not much better timeliness or results. jim
I do not agree with the above.
1st off, there HAS to be some sort of DRO review prior to even getting
the claim issue/s under BVA's jurisdiction - even iid it's just through certification.
Posted 01 October 2012 - 03:57 PM
Posted 01 October 2012 - 07:14 PM
Posted 26 February 2013 - 03:50 PM
Would going the DRO route be better in my case? They denied my claim stating they needed proof my injury( problems with wrist that was fractured in RVN ) was incurred in service. This was after a c&p 2 months after I was discharged. I was a mess after I got back, I didn't know what to do, and obviously my SO didn't either. So her I am, rated 10% for my wrist, And feel they owe me retro back to 1/9/1970. Thank all of you for your service. NEVER GIVE UP!!!!
Posted 26 February 2013 - 04:41 PM
You have to go with your heart on this. So many of us have differing opinions...
Posted 12 March 2013 - 11:22 AM
Logic dictates that if you have no new evidence to submit, asking for a DRO Review instead of proceeding to the BVA is pointless. Asking someone to re-review the same thing and decide differently is loosely the definition of insanity. Why would you expect a different result? On the other hand, if VA has made an error based on a misinterpretation of the statute or regulation, this would be advisable.Simply asking for a do over at the RO is pointless absent anything new to rebut the old decision.
As for the BVA having legal training, this applies to the aforementioned possibility of an error and their ability to see it. VARO personnel are remarkably dense and depend far too much on what the magic M-21 8 ball spits out. The VLJ at the BVA has a coterie of about 10-12 staff attorneys who research the decision (sometimes) and come to a different conclusion(occasionally).
Lastly, a DRO review will take a year from denial if not more. An appeal to the BVA will cause the claim to sit awaiting certification for a year at the RO before transmittal to DC. In VAspeak, that's an in-basket problem. There's no room to put the claim in DC so it sits at your RO waiting its turn to go to appeal. I prefer moving forward all the time. Going to DC is preferable to waiting for a new denial with no new evidence. If you have the resources, you can file the appeal and still pursue new evidence while you wait. You may submit it up to 60 days prior to the BVA decision without fear of a remand to reconsider it if you have signed the waiver of RO review.
Every case is different. Ask for advice. Never stand pat.
Edited by asknod, 12 March 2013 - 11:23 AM.
Posted 12 March 2013 - 09:59 PM
This has been my history Asknod. I won at BVA for the reasons you state
Posted 13 March 2013 - 09:55 AM
Posted 15 March 2013 - 09:04 PM
Remember this , too. The BVA say they have done away with the Extraordinary Awards Program.(EAP) after it was declared illegal. Nevertheless, they have an unwritten rule that they aren't going to part with large settlements without testing your mettle and desire to fight for it. Thinking foolishly that this might induce them to grant my EED back to 1994, I went the DRO route after my win in 2008. A year later, even with 8 1/2 X 11 glossies and a power point presentation, the RO refused to budge. It would have been a Fenderson culminating in about 60% from 94. They fought me tooth and nail on every contention to the point of having three different arguments for why they did what they did in 94. Finally, at the Court, they changed their argument. Sometimes you are not going to roll these guys at the RO level no matter how good your argument. There are many from the Miss Peggy Pink Site who contend that VA follows the Grant when you can. Deny if you must. theory. I don't buy it. Once they make up their mind to deny, it becomes their mantra. I won an increase from 10% to 40% for Porphyria Cutanea Tarda for phlebotomies on a DRO but they still denied the 94 date. They were wrong and they knew it but they stood their ground. I like the philosophy of "on any given day, at the right RO, in the best of circumstances, you can win it." It all depends on the luck of the draw that you get a DRO with intelligence. Is there such an item at the RO? That's debatable.
Posted 16 March 2013 - 11:24 AM
I can say for a certainty I am sympatico with Asknod. That was my personal experience, also.
Posted 16 March 2013 - 01:21 PM
Fenderson, as ASKNOD refers to, is discussed on page 113 of his great book, “Vetarans Administration Claims : What You Need to Know to be Successful”
Fenderson is established VA Case law , and the “Fenderson” rating is using the principle of staged ratings for a disability that has increased in it's disabling affects, over the claimant's claims lifetime.
I mean ,you filed an initial claim in 2006 and it wasn't decided until 2010 and the VA possibly failed to consider all evidence of record that showed the disability ,at one level when you filed it, has reached a higher level, during the long claims process itself. The C & P results they used might have well been outdated by the time the claim was rated .
Fenderson v. West, 12 Vet. App. 119, 125-26 (1999)
Here is an example of what ASKNOD is educating us all on:
“Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).”
Entitlement to higher ratings for a cervical spine disability and a scar as well as a separate rating for a scar is denied.
Entitlement to a separate rating of 10 percent for radiculopathy of the right arm is granted.
Entitlement to a rating in excess of 10 percent for a left ankle disability is denied from August 1, 2007, to October 22, 2008.
Entitlement to a 20 percent rating for a left ankle disability is granted effective from October 23, 2008.
Entitlement to a rating in excess of 10 percent for a right wrist disability is denied.
Entitlement to a rating in excess of 10 percent for a left ulnar nerve laceration as well as separate rating for his scar is denied.
This is a long read but shows how Fenderson was applied as to the Left ankle disability in Part 2 of the BVA's analysis of that disability.
(BTW this case holds some delicious VA case law references.)
Maybe this case is less confusing:
“These findings have been consistent throughout the relevant period. Fenderson, supra. “
Entitlement to an initial evaluation of 30 percent, but no greater, is granted for traumatic positional vertigo, subject to the laws and regulations governing the award of monetary benefits.
Effective the day following the Veteran's discharge, entitlement to an initial 10 percent, but no greater, evaluation for left wrist strain with history of scapholunate is granted, subject to the laws and regulations governing the award of monetary benefits.
Entitlement to an initial evaluation of 10 percent, but no greater, is warranted for left knee patellofemoral syndrome, subject to the laws and regulations governing the award of monetary benefits. “
ASKNOD ,please correct me here if I messed up the interpretation of a Fenderson Rating.
You gave us great info here as always!
Edited by Berta, 16 March 2013 - 01:21 PM.
Posted 17 March 2013 - 12:42 AM
Vets confuse one thing on Fenderson regularly. Joe had initial claim(s) that he won, not claims for increase.Therein lies the difference. The varicose veins were not appealed properly on his Form 9 so he had to start over on that. When you file a claim for compensation and win, your disease or injury will invariably worsen over time. Given VA's proclivity to dawdle and take forever to adjudicate them, things go south in the interim. Thus, the ingrown toenail you had at separation proceeded to get worse as you waited for the rating. When issued, it was already outdated and required an upgrade to the next higher % due to toenailopathy. If you are denied and appeal to the BVA, chances are after three years it will again deteriorate. If denied yet again, you may end up at the Big House on Indiana Ave. NW with an amputated toe still awaiting an increase from 10% to 20% even though you now are eligible for 40% and SMC K.
If you file for an increase on an existing rating, you can only get a retro rating up to a year prior to your filing-but only if you can support it with medical records. This retroactive stricture does not exist in an original claim. Fenderson ratings become cash cows where VA screwed up a claim and let it lie fallow like mine for 13 years (now 19). CUE claims are another big source of Fendersons as well. VASEC tried mightily in 2004(?) to throw out a Fenderson on an old CUE saying Joe's jurisprudence was not in existence when the CUE occurred. The Feds disagreed and he got his big ticket. I forget the case but it was a daisy and set the precedence for Fenderson's application in CUE claims predating his case.
Fenderson is only applicable during that golden first year following your win. If you do not file a NOD disagreeing with your award, it is assumed they got it right and you agreed with them. You cannot return several years later and say they screwed up. Oddly, a Fenderson can go on and on for a long time. I see one on my horizon. Next month, when OGC agrees to my 1994 date at ?% on DC 7345 (the old hepatitis rating) I can medically prove that I am entitled to 20%. VA will try to lowball with 10 or 0. That will be the beginning. It will go on until they grant the 20%. At some point between 1994 and 2000, I became more ill. My earnings went down dramatically. I didn't spend a lot of time at the doctor's office and the records do not conclusively prove it. Your SSI records are very valuable if your medical evidence is scarce. Since VA granted 100% in 2007, I will need to come up with something to prove that I am entitled to more than the initial 20% as I progress to the 100%. I will lean heavily on the SSI to prove it. My serious medical records proof begins in late 2006. It will be a prolonged Fenderson because each cave in by VA that is less than what I want or deserve will entail a new NOD with their rating decision. This will start the appellate process all over again. To throw in a monkey wrench, the rating code changed in July 2001 when they inaugurated DC 7354 for HCV. The criteria is subtly different from the old (DC 7345) to the new and may create a contretemps where they have to jump up to 40-60%. They cannot go backwards as it is forbidden.What's more, it is also prohibited because by then I'll have a substantially protected rating older than 5 years with no change for the better. By the time Bob puts paid to this, it'll be over 20 years old. He can finally have his mid-life crisis a little late and get that new Corvette he's been dreaming of since his last divorce.
If you think my case is extreme, consider one of a gal I helped to improve her win on a CUE all the way back to 1979. http://asknod.wordpress.com/2012/08/25/cue-a-rare-error/. She started by researching at my site and asking questions way back when. When she won, she was stunned and came to me worried. They tried to pawn off a 0% on her! VA begrudgingly granted a 10% to the present day (2007 filing) and then started taking it back for monies paid at separation. She is busy a) filing the NOD and b) collating a wealth of private medical records she's been collecting to buttress a well-orchestrated Fenderson to the present. She may be on her deathbed before she reaches fruition with these yokels. It will definitely be the Fenderson to end all Fendersons when she's done. Or....? VA may cave in (which I doubt). I referred the lady to our mutual Michigan friend LawBob Squarepants as I suspect she needs his able talents to prevent VA from rolling her like a drunken sailor. She had no idea Joe Fenderson even existed let alone his importance to her in the scheme of VA law.
To understand Fenderson, you have to go back to AB v. Brown (95?) where they held that a Vet seeks the highest rating possible when he files. Anything less would be uncivilized. VA will make no effort to ascertain if you deserve more and often ignores the evidence before them to grasp at a lower rating. But Vets know that part, right? Check this one out:http://asknod.wordpr...staged-ratings/
I love this subject. What could be more fun that bearding the lion in his own den? Why, a Fenderson so you can do it repeatedly for years and years. It also proves God comprhends judicial humor.
Posted 17 March 2013 - 10:45 AM
Posted 17 March 2013 - 09:10 PM
Worse. I'm claiming 20%@DC 7345, 40% @ DC 7704 and 10 @ DC 6260. They refused since 4/2009 DRO, BVA denied 5/2012. OGC just asked for Motion to Dismiss and a pow wow 3/04. They have until 4/03 to act. If they balk, we go in the front door and ask for a reversal. PFB (praying for Bartley)
Posted 19 March 2013 - 09:54 PM
Good eve, like to help my fellow comrades. I have well over a decade on this journey. This is long but read on, it just may help you. If you persevere, your odds definitely go up, at least that is my experience. What I can tell you is while we all think we are each "unique" and have a "special" situation, that is both true and false. The fact is that we are indeed all unique, have individual service and circumstances and disabilities, but the fact is also that we are all in this unfortunate situation proves we are just numbers to many sifting through paperwork. But cheer up, there is One who has overcome, and so shall we also! In short I separated for the second time, June 30, 2002. I thought I was doing everything "the right way" starting with trying a new "streamlined" pilot program to help veterans separating by beginning the paperwork 30 days prior to departing the service. What an abysmal failure that was! I lived in Vancouver, WA and checked with local VA in Portland, OR who told me due to living across river in Vancouver, could not file in Portland, even though that is where I was stationed, that I had to file in Seattle. Called Ft. Lewis and got info on new program. Drove up there and signed in. First thing they said was, "what the he#$ are you doing here? You can't file here, have to do it in Portland!" It went downhill badly from there. It turned out to be such a debacle I waited a couple months till I moved to Los Angeles for a new job and to apply at the VA there where I would be living. I did not think the problem could get worse, but the VARO in LA managed to debunk my theory, just like the VARO in state where I now am managed to trump those in LA with even more grief! So far so bad. Long story short, used American Legion to represent me in LA (big mistake). (I am member of DAV, AL and VFW and am not casting stones, just stating the facts).
I quickly fired my AL rep who sat on my case and worked my own case with better results, going from 0% to 20% and later to 30%. Back then, attorneys could only represent you once you reached a certain level, at the NOD level I believe. In any case, I sent out feelers on the web for a half dozen attorneys, got a few replies and narrowed it to one, and I am thankful I did, that being with ABS Legal Advocates out of Lawrence, KS. The firm quickly took my already good record keeping and began dilligently and accurately documenting my case, keeping me informed along the way, etc. with no $ in hand just a 20% percentage of any award. It was by no means a quick or easy journey, and some times I was not sure if I was more frustrated at the VA, my attorney, myself, or just the system because it was taking so long, too long, in my opinion. The firm was patient with me even when I demanded more than my share of their patience. On more than one occasion the firm went to bat for me when the VA tried to throw me under the bus, saying I had missed a certain deadline, which was not true of course. However, if not for their meticulous record keeping I might have gotten hosed.
The net result was that though the first years were very slow, from 2002-2006, I was upgraded I believe to like 50% or 60% around 2006, and I was compensated retroactively, thankfully, though %/amount that is still in dispute due to various errors on dates and conditions. I appealed my claim to the BVA and eventually went to the USCAVC and back twice and have two cases named in my honor. I am now at 80% compensable, lot more than 30% I was prior. The first case took about 18 months to resolve dated from 2007 and the second around 29 months dated from 2009, and the second case was sent from the BVA back to the Regional Office where it has languished since June 2012. The irony is that that the Judge told the VARO in his written opinion to expeditiously adjudicate my case and basically put me in cue where I should be, in other words, help resolve it in fair order and request C & P exams. At first I thought, wow that is great, help, finally. Do you think VARO listened? NO! I waited patiently 6 months for a call or letter for exams the Judge prescribed to be done, and did not hassle them at VARO at all, then finally in frustration, contacted my Senator and requested help. Remarkably, within weeks after that I was called by the local VA hospital for C & P exams and thankfully that part is all over now. That has been about 6 weeks and my claim is back to being a "cold case" file and here it is almost another year gone by. You would think they would want to get my case resolved after all these years? Again, I think I am unique and it should all happen on my calendar, but it does not work like that, no not at all.
My best advice is, DO get help (attorney), DO be patient, DO NOT get in a hurry, resist the temptation to "do it on your own". This is not a DIY project, trust me, I now know! If you DIY it will take over your life, your time, and almost consume you, like it almost did for me. Having an attorney deal with it was liberating once I turned it all over to her. However, don't blow off your claim and miss any time before filing. Easy for me to say I know, but I have been there, done that, have the T shirt. The biggest mistake is appropriately naming the conditions I filed for which in retrospect I did not due but that is where the AL definitely did not assist me well. Use the Diagnostic Codes, which any attorney should know. I was unaware of this, thankfully this wonderful web site points this out. Don't list, I have back pain, or I have a headache, or my hand is swollen, or I feel stressed out, the VARO will just say sorry about that, pal, sucks to be you, but no eligibility for disability rating because you did not list the code correctly! You need to use those codes. That caused substantial delays because I had no idea that codes existed, was how the VA operated, etc. which again underscores why you really need an attorney. It is changing now, it seems, that the VA is trying to actually assist the veteran with his or her claim, at least I think so, but again my vote is for legal counsel. I hope this has been helpful to you, and remember like Winston Churchill said, "Never, ever, ever give up!" or something similar.
Posted 20 March 2013 - 06:14 AM
A Very articulate post!
Yes the lawyers should know the diagnostic codes but many of us claimants do not use them during the claims process, and hope that VA gives the proper codes on the rating sheets.
I sure agree with what you said about being too 'generic'...'I have back pain, headaches,' etc etc... because every disability has a criteria in the VA Schedule of Ratings here at hadit, and a claim must be shaped with a proper diagnosis and then fall into the ratings with medical evidence.
I have seen claims for Gulf War Illness or Syndrome denied ,at the BVA because the veteran thought these were ratable disabilities when,in fact, there is a specific criteria for what the VA will rate under the Gulf War regulations, and the veteran failed to properly describe what their disabilities are.
It sure pays to read the Diagnositc codes carefully however on a rating sheet because if they use the wrong code, they probably apied the wrong rating schedule and that error could cost a veteran compensation.
What a run around you have had....MANY here can relate to that.
The system,in my opinion, is getting worse, not better. VA is under the giun due to the media and the H & VAC hearings on the backlog.
In an effort to get caught up with claims, the VA is making mistakes.Probably more then ever.
Claimants have to follow the vCAA letter to the "T" and m,ake sure they respond in time with the VCAA response form.
EVen if they say the VA should go ahead and rate their claim, as they have no more evidence ( and they need to add an evidence list to the Response form as [roof of what they have sent and what VA should have) they can still send in more evidence at all time prior to the decision, and make sure they keep proof of mailing everything they send to the VA.
I did have a "unique" claim in 2003. I know many vet lawyers since I am an advocate and none of them, nor any searching I did, revealed anything similiar to my claim.
It was unique becauise VA already had granted me DIC under Section 1151 in 1998. due to my successful FTCA case. I discovered in 2003 that my dead husband had an AO disability that VA had malpracticed on ,which also contributed to his death.
Writing that claim took me 2 weeks of editing because I could not claim under 1151 again, and had to word it carefully, suggesting more malpractice and enclosing the proof.
In 2009 after getting 3 IMOs that concurred with my lay medical findings, the BVA awarded the claim.
My case was so unusual that the VA didnt want to refund an FTCA offset to my DIC that they had withheld for many years. I have never seen an FTCA offset refunded in 20 years of studying VA case law.
BUT the circumstances warranted the refund and I got it.
I had trumped a wrongful death award with an award of direct SC death due to AO for my dead husband.
I think many here get tired of reading my story on this specific claim I had (I have been a successful claimant for over 15 years)
But it does show that we MUST be proactive and NEVER give up and when we know we need an IMO doctor and/or a vet's lawyer, we must do all we can to get their help, as it is often the only way a claimant, these days, can succeed.
I have letters here over the years from my VARO that are just unconscionable.Some are laughable.
They tried to make up regulations,for two of my claims, and totally ignored other established VA case law regulations in my other situations.
At this point I like their War of the Words. ..and don't mind playing their games.... but the fact remains, and I repeat this again, VA is not the enemy of veterans....Time is...... and the VA knows it.
" It is changing now, it seems, that the VA is trying to actually assist the veteran with his or her claim," .... I disagree.Maye in some cases, but the VA has overwhelmed itself with decisions that have caused numerous BVA remands for a total Re Do of what VA didnt do right in the first place...and the VA claims system was totally unprepared for returning OIF/OEF veterans.
Although they have hired additional raters and trained them, lets face it, it takes YEARS to get up to speed on proper claims adjudication.
38 CFR changes from time to time as well as any other facets of VA case law.
The lawyers are hopefully always up to speed.
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