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Dinnard

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I would like confirmation that I'm correct in my calculation that my husband is at 70% He was denied by DRO review because he is not at 70% He has been 70% for 4 years with 50% bilateral, 20% and 10%, I have used several different formats and always come up with 68% which would be 70%.

A little background. He was a Veteran Benefit Rep in Kentucky. In July, 2010 he had surgery on his left foot, screws and plates were put in and his ankle was fused. The Kentucky Department of Veteran Affairs denied his request for time off for surgery and recovery, He was desperate to get pain relief so he took retirement with only 10 years of service. He was given 3 months of 100%, however his foot was not healing and he needed extended recovery but was denied without having the required exam. His doctor provided the necessary info supporting this, however we had a trip planned and paid for prior to his having surgery to go on vacation with our children. He rescheduled one PT appointment for our trip. I rented a scooter for him since he could not walk at all. He was denied based on missing the one PT appointment.

The surgery was considered a failure due to the screws not being placed correctly and the pain increased rather than decreased. He was/is having to take multiple medications for pain and now has a VA provided scooter, lift and ramp. He was advised to file for IU which he did and was denied. In every stage he has been denied for something different such as he could do sedentary work. There has been no consistency. I seriously doubt anyone will hire a 65 year old man using a scooter and taking medications which cause him to fall asleep every time he sits down, Here are my questions.

Am I correct that he meets the % required for IU?

Was filing a CUE the right way to go?

Would this be retro to November, 2010 when he was first denied?

The CUE was filed in May in Nashville, what would be estimated time for response?

Thank you so much for any info you can provide.

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Wow, they continue to factually screw up and deny your husband's claim. They don't even know that your podiatrist is a VA doctor. When the VA does not want to grant TDIU they will do anything to deny. I was rated 70% and was on SSD, and VA denied my TDIU because I was on opiates for SC conditions. They said I was unable to work due to opiate addiction and not to SC conditions. I won that but it took another year. I feel for you.

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Thanks, it is sad to see all the denials when they are so obviously wrong. They having to wait another year or so until you get another decision. We started our journey when he had is surgery in July 2010. They denied more than 3 months convalescence without an exam. He went 6 months without walking and has been using a cane or wheelchair since then. He just had spinal stimulator implant and can't bend, lift or raise his arms over his head for 8-12 weeks. So our journey continues.

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Here's your problem in a nutshell. You rely on Dr. Photos for your nexus letter or his diagnosis. He has not been granted access to your service medical records (according to the VA), and thus the VBA examiner's nexus is more "probative" and based on more knowledge of the injury. In 2010, the VA sent out a letter to the VAMCs forbidding them (VHA doctors) to write nexus letters for Vets connecting their illness/injuries to service because "they are not trained in the art of subjective forensic pathology". VA Examiners (read the ARNPs at the RO) who are assigned this task are considered eminently more knowledgeable and capable of making this determination. This is also why the new DBQs do not have a slot for the nexus. I have been harping on this glaring omission since I reviewed the very first DBQ. I won't touch one. I prefer to submit actual doctor's notes and labs that reflect the true facts. I also get definitive letters from the doctor (if possible) to support my contentions. Absent that, it's off to see Dr. Bash and friends.

The VARO examiner is in error. Here's why. Once you have been service connected for a disease or injury, there is no more discussion or investigation of how it occurred. It becomes a "finding". Either you are service connected for it or you are not. Once you are, there simply is no more discussion about contemporary service records or the necessity to review the c-file. It becomes a study of the here and now of the disease's progression. A VA doctor such as Dr. Photos is exceptionally positioned to make cogent observations for two very good reasons. One is that he is what we call your ''treating physician" and very acquainted with your case. Secondly, he is a podiatrist and a specialist in his field (and your malady). This cements his observations as being superior to any and all others who have less training. This what will win your case so focus on it. VA will do their damnedest to redirect attention to the contemporary service records and Dr. Photos' failure to review these "probative" documents but the fact remains that he doesn't need to. All he has to do to is to opine on the CURRENT state of affairs. Period.

The Veterans Administration is also relying on some of the tenets of FAST Letter 13-13 but most importantly, they are cracking down on TDIU. Sedentary work is a euphemism for sitting down and working but fails to comprehend a) getting to and from work; b) getting up to use the rest facilities/breaks/lunch once there; and c) pain on excursion. He should be rated for pain as a separate rating above and beyond his normal schedular rating. VA is saying he is still viable in the workforce. This is what must be overcome. Dr. Photos' diagnosis is the definitive document for an appeal. His observations should be the last word on this subject. As a VHA doctor, he has complete access to your VISTA medical files on this subject (and all others) which rebuts the VA Examiner's contentions. This is Clear and Unmistakable Error. Until you appeal this to the BVA or the CAVC, you won't get any traction. Once VA goes south with their logic, they are loath to get the locomotive back on the right track. They have made a "finding" that is adverse to you. Until you can correct their defective logic, your TDIU quest will be futile.

Always remember our friend Layno v. Brown (1995) Your lay testimony is credible on the subject of what comes to you via your five senses. You may not opine on things medical, but you may most definitely discuss pain, the inability to move about comfortably and your field of training preventing you from engaging in work that still requires transportation to and fro. Sedentary work is not sedentary when it entails locomotion to accomplish it. The two terms are mutually exclusive. Best of luck, sir.

A

As a P.S., I might add you implied you filed it as CUE. A disagreement of how the facts were interpreted can never rise to the level of CUE but--------- The Examiner clearly stated Dr. Photos did not have access to the complete record. This statement is clearly and unmistakably erroneous on it's face which will be the fulcrum for a successful appeal. Just make sure that the mistake altered the outcome (a grant of TDIU). If there were other mitigating factors you have not mentioned, it might poke a hole in the claim boat. Does he have the requisite 70% combined or at least one stand-alone rating at 60% or greater?

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You verified my plan of action. I was planning on a CUE and filing letters from Dr. Photos and the VA surgeon who did his foot surgery (that failed). The letters are on VA letterhead and are in his records because they were filed as part of his initial claim. This has been ongoing since November 2010 when they denied his claim for convalesence following his surgery. He was confined to the bed for 3 months. (I really loved the bed pan duty!) (They did not do an exam as required) He has been able to walk short distances with a cane but VA has provided motorized chair for him now and that has allowed us to get out more.

The last denial I filed a CUE on because they denied it for not being 70% (which he had been for 3 years). That appeal had been sent to the Board and was remanded which brought the change to this denial. I have already gotten printout from the Board of Nursing of the Examiner and Board of Licensing for the doctor's license. I have also BVA decisions relating to consideration of pain, Attending physician records stating his diagnoses and prognoses. I assumed that with the new electronic system his doctors could see all of his medical records.

He has just gotten a spinal cord stimulator implant and can't bend, raise his arms or lift over 5 lbs for 8-12 weeks. Not sure how/if that would affect his appeal. The verdict is still out as to how much it will benefit him. They have also asked if he would consider amputation of both feet up to the knee. He chose to get the stimulator before doing anything that drastic.

Thank you so much for all your advice. My husband worked for Kentucky Dept of Veteran Affairs until his surgery so his case had to be transferred to the Nashville RO. This would have been done a long time ago if it had stayed in Kentucky, not that he would have influenced them but they all know him and his situation and that he would never have stopped working with Veterans unless it was impossible for him to do his job. He was always so afraid he would file on behalf of a Veteran and something he failed to do or did wrong would cause it to do denied. He still talks to any one he meets who serves or has served about seeking care at the VA. As you know Veterans take care of each other.

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Just when you think it couldn't get any stranger, it does. I was doing my daily check in ebenfits and just happened to check Appeal Status and that very day it had gone to BVA and was on VLJ desk. We had not filed anything. Our VSO had not received anything so he checked and found that the Nashville RO where it was did not know anything about it. After further checking he found that it had never been certified. The next day we go a BVA letter stating they had received his file, however we had never received anything from Nashville that they were sending it.

Now we just sit and wait to see if the right hand ever figures out what the left hand is doing and if they can get reattached to their body. I'm hoping since the only reason for denial that is on appeal is that the VA doctor is incorrectly identified as a private physician, it will be quick and easy in our favor.

BTW, we saw his doctor this week and she was less than happy as she has been a VA doctor for 16 years. She said she would do whatever it takes to get his 100% that it was insane that he had not already been approved. She was HOT!

Edited by Dinnard
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A traveling BVA team happened to be in the office where our VSO works so the VSO talked with the head of the team and he has personally gotten involved and is going to track down our appeal. Once he has it he is going to review it with the VSO and issue a decision. Hoping that will move much faster than it would on the BVA chain.

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