Do you have an IMO/IME that follows the IMO criteria here at hadit, from a private doctor.
BVA- their decisions ,based on the medical evidence, are decisions for individual veterans. Every disability is unique to the specific veteran based on a thorough review of all evidence.
However legal statements by BVA are binding on all decisions. And those in CAVC decisions.
A diagnostic code is a legal entity. It sounds like they will give you an analogous DC.
This is a personal example of what I mean.
Decades ago I had filed an I-9 appeal. I had subsequently won that claim at the VARO level. I didnt withdraw the appeal…didnt even know I could do that.
The BVA stated correctly that appeal was a moot issue. But they went on to say that if I succeeded in a direct service connected death ( This was a Section 1151 /FTCA death), then the VARO would have to refund to me a very large offset amount to my 1151 DIC.
I subsequently proved 3 separate direct SC death issues. The first issue was an award for direct SC death of my husband due to undiagnosed and untreated DMII from his exposure to AO in Vietnam.
This was not part of my FTCA case. It was filed about 5-6 years after the 1151/FTCA matter was settled.
I sent eh VARO the whole BVA case highlighting their statement as to the offset refund.They refused to pay me. They had also refused to reply to letter I had stating that the offset amount had been recovered but still they were taking my DIC check and I had never received a proper DIC check at that point.
I then called up General Counsel and got the lawyer who had settled with me on behalf of the USA.
I faxed him the BVA decision. Some big honcho from OGC called my VARO. The check was in the mail.
Regional Counsel also had my files and had to confirm my FTCA case info.He called CUE on them beause when he saw my letters about the offset, and checked into it, he got them to pay me about 40,000 more, solely do to their error on the DIC offset. OGC DC got them to pay the FTCA offset refund.
This is what I mean….the BVA had made a legal statement in the moot claim decision.
Nothing had changed in VA case law on that since the older decision. 1999-2000?
The BVA decision I used was legal evidence. The OGC squared this away immediately with the RO. The VA OGC and the BVA can read.
One other point……I had so much medical and legal evidence for my AO DMII claim that, like all of my past claims, the RO could have awarded it.
Unfortunately the BVA stated some of it- the whole list could have helped others- and said the claims was “at least “in Relative Equipoise” because the evidence FAR outweighed the RO C & P examiners crap.
Also I asked BVA for a Remand because my VCAA rights were violated.
They remanded instead for one more C & P exam and I knocked that down myself with my already established viable lay medical opinion. and sent my rebuttal directly to the BVA who agreed the exam was too speculative, did not consider it , stated I was correct as to the VCAA violation, but rendered that issue moot because they awarded the claim.
What you might want to do is this—-search the CAVC web site or maybe the case is still here….
years ago a veteran had a heck of a time with his AO disability- of a leukemia nature was not on the AO presumptive list. With a strong IME ,after years of denials, the CAVC awarded his claim.
I will try to find it because in that CAVC case the entire decision was of a legal nature in regards to the veteran;s medical condition.
This post was originally published on this site.