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Should I file NOD or submit new claim?

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ArmyMP17

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Hello,

My back story: resigned my active duty commission in 1999 and submitted disability packet for bi-lateral shoulder condition (separated left shoulder, bursitis right shoulder), left knee (x2 surgeries), right ankle blow out, anemia, sinusitis, tinnitus, hearing loss, vertigo, right wrist tenosynovitis, Bell's Palsey, headaches, viral syndrome, low back pain, hemorrhoids, and bilateral hand and finger numbness due to mild ulnar entrapment. In late 2000, they came back with a20% rating- 10%  for left knee, 10% for right ankle. I was also awarded 0% for sinusitis, right wrist, Bell's Palsey, hemorrhoids, and right shoulder. I was full on into my new civilian job and didn't know much about the appeal process so filed the paperwork away and didn't do anything.

Fast forward to 2013 and 2014:  experienced issues with my left shoulder (non-rated) and left knee, started with civilian doctor and also went to VA in Palo Alto, CA. Submitted a claim for increase on my left knee in Apr 2014, went through C&P process and received a 10% increase for left knee - for a total rating of 30%. In parallel, In May of 2014 started seeing the Ortho doctor in Palo Alto VA for left knee and left shoulder, and regular VA PCP for right wrist and other issues. The Ortho doc noted another meniscus tear in left knee and put me on crutches for 6 weeks (I had a 3rd left knee surgery by civilian doctor in Oct 2007). A year later, after physical therapy, VA Ortho conceded a 4th surgery was needed and I had it done in July 2015. In December of 2015, I submitted a new claim for: inc left knee, right knee strain secondary to left knee, low back pain secondary to left knee, increase to right wrist, increase to right ankle, reopen left shoulder with buddy statements corroborating shoulder separation, increase to right shoulder, headaches secondary to sinusitis,and tinnitus secondary to Bell's Palsey. Assisted by a VSO recommended from a good friend, I mailed my packet in with all the documentation in Dec 2015.

I had my C&P exam in Feb 2016 in Palo Alto. Like many other postings, I had a bit of an issue with my C&P examiner. I was very nice and answered all of her questions to include the impact of all of my various aches and pains on my daily life. She did not properly measure my ROM for knees and shoulders with the goniometer and eye-balled it instead. My left knee hasn't straightened out since BEFORE the 4th knee surgery, yet she put down a 5% measurement. She also stated she, "question about veracity of her complains. Exam is significant for somatic amplification, lack of effort. Pain is out of proportion to findings on diagnostic test" and quoted an exam I had in Dec 2015 from a DIFFERENT Ortho doctor who completely wrote what he felt like in my record, "According to CPRS ORTHOPEDIC CLINIC note dated on  DEC 10, 2015:-  She is able to fully extend her knee and flex up to about 115 degrees. On PHYSICAL EXAMINATION of L knee she had Full extension and to 150 degrees of flexion in the left knee." So she thought I was exaggerating because a doctor pushed down on my leg and deemed it "fully extendable". 

Her review ultimately ended in an increased rating to 70%: 0% for left knee extension, 10% for right knee strain, 10% for right wrist increase, 20% for left shoulder, and 20% for right shoulder for a total rating of 70% (including previous year 10% increase for left knee). She completely blew off my low back pain secondary to my left knee because it's a "normal progression of getting older" and I am overweight. Duh. Difficult to lose weight when one has difficulties walking. She determined no increase for sinusitis, hemorrhoids, right ankle, and I am guessing since no increase on sinusitis, that means no secondary connection for headaches. Tinnitus was deferred, and after a few examinations in Texas (I relocated in Feb 2016 right after the C&P exam in Palo Alto), I recently received a 10% rating for tinnitus. Total rating is still 70% because tinnitus didn't move the needle at all.

So here are my questions:

1. Should I submit a NOD or new claim for increase for left and right knees? After 4 left knee surgeries, an obvious altered gait that causes me to lean on my right leg, leading to right leg strain and low back pain, and the fact I STILL can't straighten my left leg completely, I went to my civilian doctor and physical therapist, who both stated my low back pain and increasing right leg problems are related to my left knee issues. I recently went to Ortho in Temple, Texas with regard to my right knee locking, knee cap popping, and constant pain in right knee, and they basically said here's a knee brace - go lose some weight. They offered injections too, but I'm a bit leery about doing those as I don't hear much good comes from them.  I should also note, my physical therapist and the VA doctor in Temple both measured my left knee at 10% extension which should equal a 10% rating. 

2. I have more documentation on my low back pain related to left knee - should I submit a NOD or new claim? I should note the surgeon who did my 3rd knee surgery in 2007 indicated I was headed toward knee replacement and should quit all sports and activities that would stress/strain my knee. It was discussed again last week at the VA Temple, but the PA said I need to lose weight before they can do a knee replacement (they really recommend against it at this time as I'm not even 50 yet). Talk about your Catch-22s. 

3. I enlisted in the Army in Feb 1985 with a known hearing loss in my left ear and diagnosed BPPV (Benign Proximal Positional Vertigo). My medical records clearly show a hearing loss, yet my initial claim in 1999 was denied service connected for not enough documentation. There are also numerous mentions of vertigo in my records during active duty, reserves, and VA visits. In late 2002, the VA in Palo Alto was going to send me for evaluation with regard to Meniere's Disease, but in Feb 2003, my Reserve unit was called up to support the war (I did not go overseas, we were sent to Fort Leonard Wood for stateside support) and that eval got put on hold. When I returned back to Cali at the end of the one year tour, my job relocated me to Texas. While I had recurring vertigo episodes I did not pursue the eval for Meniere's because they didn't happen all that frequently. Fast forward to 2014 and my hearing problems, tinnitus, and vertigo frequency increased dramatically. Tinnitus 24/7, hearing loss in the upper Hz levels worsened, and vertigo episodes of short duration is a weekly occurrence. I started going to the VA for those issues, and have an appointment in Austin next week for Meniere's evaluation. My question is: should they say yes, I have it, how do I get it service connected when hearing loss is not-service connected? Note: my hearing loss is in the 3000-8000 range whereas the VA only counts it a rate able loss in the 1000-4000 range. I've had life long issues with my left ear, hearing, vertigo that I can document with family statements, a few medical records from childhood, and I went through my medical records page by page and highlighted every mention of hearing, vertigo, dizziness, anemia, viral, etc. If I am reading the requirements correctly, I could qualify for a 60% rating for Meniere's if it can be service-connected. I just don't know how I do that?

Thank you for your help. 

 

Jen
            

Edited by ArmyMP17
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Broncovet or Gastone, one more question. I looked back through me award letters and reread them and noted this:

1. I submitted a claim for low back pain secondary to my 20% SC left knee (x2 surgeries on AD, x1 surgery while still active reserves, and x1 surgery by VA last year), and the response was: "We determined that the following condition(s) was/were not related to your military service, so service connection remains denied." Yet, I submitted a claim for right knee strain secondary to my SC left knee and that was approved at 10%. I'm not sure how they can't connect the back pain to left knee because of my now abnormal gait and leaning to my right side all the time. I DID submit an original claim for back pain when I first left AD in 1999 and that was denied due to not enough evidence (I didn't know enough about the process to pursue a NOD/appeal) - I wonder if they referred back to that instead of the new claim of connecting it to my SC left knee since they didn't reference it in their denial?

2. The same with a claim I submitted for headaches secondary to my 0% SC sinusitis. They came back with the same response as above as if it was a stand alone issue and not secondary to a SC issue. Is this common or a CUE? I did submit evidence with the FDC.

Thanks in advance,

Jen

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On 7/16/2016 at 9:12 AM, ArmyMP17 said:

I DID submit an original claim for back pain when I first left AD in 1999 and that was denied due to not enough evidence (I didn't know enough about the process to pursue a NOD/appeal) - I wonder if they referred back to that instead of the new claim of connecting it to my SC left knee since they didn't reference it in their denial?

you answered your own question, any weakness you provide the VA they will use to their advantage to deny you for as long as possible, the way they figure, they "might" have to Retro Pay you someday......or, because we ARE disabled, we may actually, you know, phukin DIE.

Get your Cfile, get all your Health/MentalHealth/Behavioral Health records and learn your shit. Hadit.com can literally change your outlook and your chances at a honest rating from the VA

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I don't recall any discussion of Clinician statements regarding etiology of your claimed Secondary issues, what do your treating Specialists have to say?

Any chance you could post a redacted copy of your C & P DBQ's and Denial Letters. What were the credentials of your C & P Examiners?

Semper Fi

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