Va rating of 60%

sharon.palmer

Registered Member
#21
Ms. Palmer,

A few thoughts. First, some good news on the VA appeals timeline. Under the current "old" system, appeals at the regional level take an average of 3 years to get resolved. At the Board of Veterans Appeals (BVA), they take an average of 7 years. Those are absurd timelines. So, last year, Congress decided to do something about it and passed the Veterans Appeals Improvement and Modernization Act. It officially goes live in February, but you can opt in now if you'd like to switch from the "old" system to the "new" system. The new system is getting results back in, on average, just 53 days. It's also giving better results so far than the old system. Historically, the VA has given fully favorable decisions in about 19% of their appeals. The new system is averaging about 50%, depending on which "lane" you jump into.

Now, there are some downsides to the new opt-in system (called RAMP) that you should be aware of. Everyone's case is different, and you do give up some important rights in order to transfer over to the fast lane. I can't tell you what to do in your particular case, but I can tell you that I advise most of my clients to jump into one of the new lanes instead of waiting the better part of a decade for an answer.

Substantively, you mentioned a few things that raise red flags for me. The first is that the VA should not be considering the effects of treatment on a veteran's knee conditions. This is something they screw up routinely at the initial rating level, but that the BVA and the Court of Appeals for Veterans Claims (CAVC) always fixes. A recent case on the same issue for a back condition is Brooks v. Shulkin, No. 16-1744, 2017 U.S. App. Vet. Claims LEXIS 1344, at *7-8 (Vet. App. Sep. 22, 2017). For you legal types out there, the relevant language goes like this:

"The Court notes sua sponte that neither the examiners nor the Board properly considered the effect of medication on the manifestations of Mr. Brooks's lumbar spine disorder. This Court has held that when evaluating a disability the Board commits legal error by considering the ameliorating effects of medication unless the regulation explicitly contemplates relief by medication. Jones (David) v. Shinseki, 26 Vet.App. 56, 63 (2012). Section 4.71a does not mention the effects of medication. Although the examination reports are inconsistent regarding medications, as well as in other respects, the Board noted multiple instances where Mr. Brooks was taking medication to alleviate his pain. See R. at 8...

"The Board did not resolve these inconsistencies or otherwise address the matter of medication. Its failure to do so renders its statement of reasons or bases inadequate. See Schafrath, supra. On remand, the Board must obtain medical information as to what Mr. Brooks's lost range [*8] of motion and other functional loss would be absent the ameliorative effects of medication. This determination may require a retrospective medical opinion for the early part of the appeal period."

In non-legalese, this means that the VA rated Mr. Brooks' back condition as it was on his best day, having taken all of his meds and done all of his physical therapy. They were supposed to rate it as it was on his worst day, when he ran out of meds and hadn't been to PT in months and there's a hurricane blowing in so his back's all swollen, etc. It sounds like they may have made a similar mistake in your case, which isn't at all uncommon.

Finally, the idea of denying you service connection for a "pre-existing condition" after a 30 year career is absurd. There's a rule called the "presumption of soundness" that applies to anyone who's on Active Duty for more than 30 days. We assume that, if there's something wrong with you on the day you discharge, that we caused it. In order to overcome that assumption, the VA needs to provide "clear and unmistakable evidence" that the condition existed prior to service AND that it wasn't aggravated by your service in any way. Clear and unmistakable evidence is a really hard burden to overcome. Case law describes it as evidence that's "iron-clad and copper-riveted." It's a higher standard than the evidence we use to involuntarily commit you to a mental institution, or to permanently take your kids away from you. I'm honestly surprised they'd try it after a 30-year career.

-Matt
Thank you for your reply. It seems to me that doing all physical training for 25 years should prove "not prior" to VA! I was advised by VSO not to go with RAMP. I requested a video with VLJ, not knowing there is 150,000 appeals ahead of me. I just went for knee injections and my Orthopedic Surgeon is writing something that hopefully helps. I keep trying!! I am considering RAMP and submitting new evidence such as LOD, nexus letters and other doctors, just Leary that my Appeals coordinator highly discourages it in my case. Thinks I have better luck before VLJ. Been fighting since 2012 when I found knees were life changing. I hope the RAMP turns out to prove good. 7 yrs is to long to wait. Thanks again.
 

sharon.palmer

Registered Member
#22
Thank you for your reply. It seems to me that doing all physical training for 25 years should prove "not prior" to VA! I was advised by VSO not to go with RAMP. I requested a video with VLJ, not knowing there is 150,000 appeals ahead of me. I just went for knee injections and my Orthopedic Surgeon is writing something that hopefully helps. I keep trying!! I am considering RAMP and submitting new evidence such as LOD, nexus letters and other doctors, just Leary that my Appeals coordinator highly discourages it in my case. Thinks I have better luck before VLJ. Been fighting since 2012 when I found knees were life changing. I hope the RAMP turns out to prove good. 7 yrs is to long to wait. FYI, I was in the Army Reserve and did 179 day tours for 4 years. At that time, our unit would not cut 30 day consecutive orders cause we would get benefits. I did separate orders for 4-5 days a week. I didn't get DD214 for any of it. Thanks again.
 
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