remanded

victim88
Registered: 07/27/09
Posts: 14

	08/25/10	#1

good grief, my claim was remaned last nov, apparently the do failed to advise me of a negative c&p, stating it was not needed due to the negative report? bva advised differently, now after more evidence has been provided to counter to negative c&p report, this file once again is on its way back to the bva? possible another 12 – 18 months for a decision, should i receive another ssoc for the new evidence status? is this the making for another future remand? what is the all time record for a particular claim being remanded? should all evidence be address in the soc/ssoc? if related secondary medical evidence has been included with my claim, would the rating for hcv & secondary health issues be addressed at the same time? ex, 30% hcv 50% depression, 100% unemply = feet, eyes, etc?keeping hope alive””’
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NODManager
Registered: 11/22/08
Posts: 654

	08/25/10	#2

Dear Sir, Answers as you posed them are: Yes , the BVA VLJ assigned to your case spotted the lack of an exam. Remand for that is automatic. The RO knows this and continually boots them up to D.C. Their undying hope is that you will die or go away. Pi$$ them off and keep your claim alive; yes you should receive an SOC or SSOC as this (C&P exam) is considered new and material evidence and requires a de novo decision as long as the VLJ has not made a final ruling (38 CFR 3.156(b)). Use the IRIS system of “Contact the VA” and ask them why you have not received a new decision or an SSOC on your claim prior to its being returned to the AMC; when the claim is finally returned to D.C., it should be reinserted back in its former order unless the remand takes years to accomplish.; The all time record I have seen is one remanded 6 times with partial rulings on the 3rd, 4th and 5th. It was what we call a Fenderson or “staged rating” rating.; If related illnesses secondary to the HCV were included and specifically mentioned in the appeal on your Form 9, then they will be addressed by the VLJ IF you claim is granted. They are not automatically SCed because you won the Hep. You have to have a nexus for each ailment relating it back to being secondary to the Hep. The CAVC has decided that if you fail to specifically list all the diseases you are appealing on your Form 9, then any you fail to list are deemed abandoned. Be careful on this. If you did fail to list them all, file a new Revised Form 9 with both the RO and the BVA in D.C. to cover yourself. Do it cert. Mail, return receipt requested. A lot of claims have died on that altar.; Please check out the medical ratings chart for Hepatitis C ( DC 7354). There is no rating of 30% for hep, just 0,10,20, 40, 60 and 100%. http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=4eee5c9e5ac5b61016ea11f8229bf8fe&rgn=div8&view=text&node=
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victim88
Registered: 07/27/09
Posts: 14

	08/26/10	#3

thank you nod, where would we be without your assistance. upon my discharge 1988 blood work came back RPR: reactive – to syphillis? later founded out to be negative, would a negative rpr test also reveal hcv? back in 1988 they did not known what i had but i had something, therefore they gave shots for syphillis, which myself, nor my wife never had.this topic was never mentioned in the negative c&p exam. also how is it possible for the va to states pre-existing and use it against the vet? they documented and accepted damaged goods, meaning the vet and now want to use this as reason to deny my claim. the entrance exam doc acknowedge “depression with out taking pills”. i was not treated, years later medical records mentioned “mild depression” no further action, last enlisted arc- depression/ yet the va states my records are silent for depression? i was never diagnosed nor treated for depression i was sent to arc for alcohol, point being all signs point towards depression? would the va deny my hcv & depression claim dated april 06? if my service records reveal long history of head trauma (slipped on ice in booth camp hit head, real hard) medical records start from booth camp to present 33 years /head injury year history, currently under neuro care? i never filed for head injury, had them ( headaches) for so long it is part of my life? in other words make me start my claim all over? yes you are right there was alcohol during my service, it was sometimes the only thing that stop the headaches, bet you heard that one before, no really this is documented throughout my military service.
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NODManager
Registered: 11/22/08
Posts: 654

	08/26/10	#4

Dear 88,So many questions with so many alternate paths based on which decision is made. Couldof, Wouldof and Shouldof ran 4^th, 5^th and 6^th, respectively, at Belmont last year. Sorry, all humor aside. <<would a negative rpr test also reveal hcv ? >> The answer is negative. RPR tests are renowned for false positives. Most docs. back then would tell the lab to run 3 samples. Rapid Plasma Reagin (RPR) refers to a type of test that looks for non-specific antibodies in the blood of the patient that may indicate that the organism (Treponema pallidum) that causes syphilisis present. As for VA saying something is preexisting, your entrance medical exam (Form 88) would list any and all preexisting defects. VA cannot claim that your disease/injury is preexisting after you are discharged. Ain’t gonna happen. 38 CFR 3.304 states: (b) Presumption of soundness. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. VA law says that if any disease, injury, defect, etc. that pre existed service was aggravated and made worse during service (and is documented in medical records) and continues to be a disability then the Vet gets compensated for it- period.Groves v. Peake (2008) 38 CFR 3.303(b). Does ARC mean Alcohol Rehabilitation Counseling? Am not familiar with the abbreviation. Lacking a pack of Tarrot cards and precognition, I do not know if VA will deny your 4/06 claim. Is the depression being claimed separately (preexisting and aggravated by service) or as secondary to the Hepatitis ? << if my service records reveal long history of head trauma (slipped on ice in booth camp hit head, real hard) medical records start from booth camp to present 33 years /head injury year history, currently under neuro care? i never filed for head injury, had them ( headaches) for so long it is part of my life? in other words make me start my claim all over?>> Okay. Let’s see if we can sort this sentence out. If you had a documented history of head injury in service and you have an extensive medical history post service for symptoms of this, and it is the same problem you suffered in service, then you are eligible to collect comp for it. If you haven’t pursued a nexus letter for this or haven’t filed a claim for it yet, perhaps you should. You cannot collect on any injury if you don’t specifically file for it. If you are denied you have to specifically mention it in your Form 9 as being appealed or contested. I don’t see where alcohol appears in all this, but if you have documented problems with that, the VA will surely say that’s a risk factor for Hep. Why, I have no idea. I guess they figure if you got too lubricated that you might fall in a puddle of someone’s blood and get infected? Naw. My wife wouldn’t even believe me on that one. That would require a serious stretching of the imagination. Nevertheless, be prepared for some flak about it.
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gpsr3
Registered: 08/26/09
Posts: 3

	09/08/10	#5

HI 40% SERVICE CONNECTED FOR HEP-C WITH LIVER CIRRHOSIS, ASK FOR RATING INCREASE DENIED SERVICE CONNECTED CONDITION HASNT CHANGED, I MENTION IN MY LETTER THE SYMPTOMS FORCE EARLY RETIRE, SO FORM 21-8940 WAS IN MY DENIED PACKAGE.SAYING IF YOU FEEL THAT YOU QUALIFY FOR UNEMPLOYABILITY, FILL OUT THE FORM WHAT TO DO NEXT,APPEAL OR FORM 21-8940 OR BOTH ANY RECOMMENDATIONS THANKS FROM GPSR3
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NODManager
Registered: 11/22/08
Posts: 654

09/08/10

What 21-8949 doesn’t say is that you need a rating on one disease/injury of at LEAST 40% (which you have) and additionaldisabilities bringing your total rating to 60% or more; OR, a single disability rated at 70% or more. Failing that, you would have to apply for an extraschedular rating on the hep C to get your TDIU rating of 100%.

Let’s look at your 40% rating. 38 CFR 4.114, Diagnostic Code (DC) 7354, which you are rated under @40% says:

Daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period——–40%

The next higher rating, 60%, requires the following:

Daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or;incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly————60%.

From experience, we have discovered that VA tends to rate based on how much time is lost from work- i.e. symptoms lasting at least 4 weeks, but less than 6 will only get 40%. They may make you document it via paychecks or a statement from your supervisor at work. If you claim six weeks or more of symptoms and religiously mention it to your doctor at every visit, you will be rated 60%. You need medical records that substantiate your claim such as AST/ALT (SGOT/SGPT) that is elevated. If your condition is such that near constant debilitating symptoms and prescribed bed rest are diagnosed, then they will grant you 100%- not TDIU. TDIU is not the panacea its made out to be. You are required to submit to a new exam every year to continue your IU rating. If you are rated 100% on the hep via the near constant debilitating symptoms, you will be examined once every two years. If there is no noticible improvement you can petition for Permanent and Total rating. Once you have this there are no more medical exams. After 10 years they can’t even take your P&T rating away unless you somehow obtained it fraudulently.

As for advice, in AB v. Brown (1995) the vet was assumed to be appealing for the highest rating possible based on the criteria in the DC. So… it follows that you should appeal for the highest rating possible. If you are 100% with SSI, that is good evidence for TDIU. If you have something from a Dr. saying you are no longer employable due to the disease, this too, would be useful. VA has to assume you are still filing for TDIU even if you do not qualify for it. You can hardly go wrong by filling out the form and sending it in with an NOD or Form 9 appeal. Remember, more options are more chances for success. If you applied for any other claims with this request for increase, make sure you specify in the Form 9 that you are appealing them as well. If you don’t, they won’t. The deck is stacked against you. Be careful if you represent yourself (pro se). Best of Luck @ VA and w/ the Hep.

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gpsr3
Registered: 08/26/09
Posts: 3

	09/09/10	#7

thanks for the help, and recommendations, ok i will do both form 9 appeal an apply for TDIU its seems that i meet most of the symptoms, the way they write up my denial as if iam not sick. i sorry that my liver isnt a big as a water mellon, which seems that their implying so how could i be having all the other symptoms, but iam still sick an suffer from pain fatigue tired, most of the time i been living with the hep-c since the early 1970. i had gall stone bladder surgery in march 2008 at my va hospital. va denied my claim saying not related to hep-c with liver cirrhosis, so i appealed an that pending in the appeal pile, at my local va. whats your take on local law firms in pursuing my claims. i appreciate your time your knowlege an your genuine concern
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NODManager
Registered: 11/22/08
Posts: 654

	09/09/10	#8

Local vs. out of state is immaterial. Virtually all the adjudication proceedings occur in a back and forth mode. You won’t have any “Perry Mason” court scenes at the BVA or the CAVC. Everyone files their briefs, then files more rebuttals and pleadings, and finally the Judge(s) says “Enough. I’m going to make a ruling.” There are many attorneys out there and not all of them are top notch. One lady, Virginia Girard-Brady, seems to have some phenomenal success with this venue. She is in Kansas, I believe. I’ll look her up for you. ABS Legal Advocates, P.A. 3301 Clinton Parkway Court, Suite 1 Lawrence, Kansas 66047 888-511-9675 (central time 8-5, M-F) Jez, you’ve gotta love Google. I’m not much for people who hyphenate their last names, but I’ll give her a pass. She has had extraordinary luck on Vet’s claims and only takes 20% of the haul. As for you parting sentence sir, my time is what I have a lot of now that Hep and AO have eaten me alive; my knowledge is a product of having to do it myself after numerous Vets organizations promised more than they could deliver; and lastly, my genuine concern is born of a desire to help fellow Veterans who find themselves in similar circumstances as me. If the shoe was on the other foot, I’m sure it would be me petitioning you for all the advice I could get to win. And I have no doubt that you would be there for me. That’s what Vets do for one another if they can. May the Lord bless you and keep you if you believe in such things. We have to be politically correct about that subject these days so as not to offend. Attached Images:
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gpsr3
Registered: 08/26/09
Posts: 3

	09/13/10	#9

THANKS FOR THE INFO, I WILL CONTACT THE ATTORNEY, THAT YOU MENTION HOPEFULLY THEY WILL TAKE MY CASE, IF THEY DONT, I WILL APPEAL, THE DENIED, AN APPLY FOR TDIU.ABOUT A YEAR AGO, I WENT TO VOCATIONAL AT THE VA, THE COUNSELLOR, SAID TO ME THAT MY APPLICATION, WILL NOT BE APPROVED, BECAUSE OF THE SYMPTOMS, I HAD, AN THAT THEY WILL DENIED MY APPLICATION. HE SAID WITH ALL THE SYMPTOMS YOU SHOULD BE 100%, HE RECOMMEND I PULL MY APPLICATION,AN THEY COULDNT EVEM GET ME A SECURITY GUARD, AN THE VA WILL HAVE TO GIVE A SPECIAL EVALUATIONS, EVEN WITH THAT YOU MORE THAN LIKELY WILL BE DENIED ANY WAY. SO PULLED THE APP.YES YOU ARE CORRECT I WOULD BE THERE FOR YOU, IN A HEART BEAT,THAT WHAT VETERAN DO, BEING THERE FOR EACH OTHER, BUT FOLKS LIKE YOU, ARE A BLESSING FOR US VETS. GOD HAS GIVEN YOU A PURPOSE, HELPING OTHER VETS, THERE IS NO HIGHER CALLING, I LIKE TO LEAVE WITH THIS QUOTE FROM ROBERT F. KENNEDY,EACH TIME A MAN STANDS UP FOR AN IDEAL, OR ACTS TO IMPROVE THE LOT OF OTHERS, OR STRIKES OUT AGAINST INJUSTICE, HE SENDS FORTH A RIPPLE OF HOPE. THANKS FOR GIVING ME HOPE, SO I CAN CONTINUE THE FIGHT.