Thursday, July 28, 2011

For vets: Is your VA disability conjunctive ?

It is important for veteran to know where his or her claim file or c-file is. Normally this file will be retained by the local VA Regional Office (VARO).  However, if you have appealed your Local VARO's  decision, the c-file could be in the Appeals Management Center which for all intents and purposes is a specialized VARO in Washington DC handles Board of Veterans Appeals (BVA) remands.

After the local VARO and AMC finish with you c-file, the Board of Veterans Appeals (BVA) reviews the conclusions and can overrule both the VARO, the AMC and even a Decision Review Officer (DRO) decision.

The BVA makes decisions on the law and not VA regulations. Often some of the VARO raters make mistakes. For example, if you have diabetes mellitus., you must meet all of the examples in disability compensation for Diabetes Mellitus  DC 7913, you must meet all of the examples in this DC. This is because DC 7913 is rated conjunctively:

However, all DCs are not rated this way. For example, DC 7903, is not rated conjunctively. This means the raters must see the forest through the trees.

The UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS (USCavc), NO . 07-2728 DIANNE C.  TATUM , APPELLANT , (Argued July 15, 2009 Decided September 28, 2009) ruling explained this.

The USCAVC agreed with Ms. Tatum on her entitlement to a higher disability rating because it agreed with the appellant that all of the examples in DC 7903 did not need to be present for a higher level rating. The USCAVC said that the higher level examples in DC 7903 were inclusive of the lower level examples.

The USCAVC made it clear the laundry lists in in the CFR for disability rating are examples, not criteria. In the case of hypothyroidism, the VAROs will often deny a higher level claim for hypothyroidism if the veterans has not complained of being constipated. This is because a VARO may think DC 7903 is related conjuctively: 

Rightardia has reviewed both BVA and USCAVC cases in which the veteran lost the case over this issue. However, The Major found the Diane Tatum case and relized the VARO "constipation" issue was bogus. 

First, when you are hypothyroid, you my indeed suffer from constipation that may result in hemorrhoids. However, once you take a medication like Levthyrozxine, you will have the opposite problem, diarrhea   

Prednisone and hydrocortisone will also cause the some of the same symptoms when voiding.

The USCAVC concluded a veteran could potentially establish all of the criteria required for either a 30% or 60% disability rating, without establishing any of the criteria for a lesser disability rating.

The USCAVC considers the laundry lists in the 38 CFR for DC 7903 to be examples rather than criteria. In addition, the higher level examples are inclusive of the lower disability rating examples. Thus, DC 7903 is not conjunctive. Such disabilities that are not conjuctive are called "disjunctive." 

38 C.F.R. § 4.21 (2009), is federal regulation which explains that "it is not expected. . . that all cases will show all the findings specified [in an applicable DC (Rating category)]."

Is you VA disability conjunctive? Talk to your Disabled American Veteran, American Legion or other non-governmental rep to find out. If the VARO gave you the "don't meet all of the criteria two step" using an erroneous conjunctive style rating , appeal to BVA or the DRO. This is an important issue that the vet cannot afford to ignore. 

Regarding the c-file. Both the BVA and the AMC have fax numbers and Washington addresses that you can submit new information to. The Major has submitted new information to both the AMC and the BVA after recent doctor's appointments. You can also take this information to the VARO and eventually it will be attached to you c-file. However, if you know your disability is currently being reviewed by the BVA or AMC, send it directly to Washington. 

The Major just completed an important diagnostic test and he called the BVA and DAV Washington to see if the new information could be added to the c-file. Both organizations provided fax numbers 

The BVA said 'yes" and to add this line in the fax cover sheet or transmittal letter prior to faxing: 

I waive regional office (RO) consideration in the first instance for new evidence. 

This is why it is essential the veteran know where his or her c-file is. 

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