Just Got Original Claim Decision, But What Path To Fix 3 Non-awards?

[Thad]

I don't know how to go now: NOD vs appeal vs hearing vs CUE vs whatever, for the following problems:

1) When is an informal claim not a claim?

2) How better to connect left knee to right knee & flatfeet?

3) Conditions that VA deferred?

What would you suggest as an approach to resolving these issues, and should I try to correct just 1) and 2) related to the current award, or go after 3) at the same time? Does sending in new information help or can I only do that based on which appeal route I go? Seems like what I want them to ask them to do is to use all the SMRs and IMOs provided, instead of blowing them off.

Have been DITY so far (not working with a VSO, local one didn't seem too interested). Sorry for the long post: dind't want to ask 3 separate questions in case what to do altogether was different than if there was only one issue.

MANY thanks, Thad

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1) When is an informal claim not a claim?

In Jul 2008 I sent in a short, two-sentence form 21-4138 saying that it was an "informal" claim per 38CFR3.155 requesting "service-connected disability compensation", without listing any specific body parts or conditions, and said that I was collecting and would submit the needed records and evidence. It pretty much matched one of the short examples in the "Vet's Survival Guide" book. VA replied referring to my "application for benefits" and my "application for compensation" and told me to complete a form 21-526. They received the formal claim (within 12 months) on 5/27/2009; their award letter 6 months later uses that formal claim date as the effective date, saying "Your previous form 21-4138 filed 7/3/2008 did not specifically list your claims and does not constitute an informal claim for benefits. 38 CFR 3.155 states that any such informal claim must identify the benefit sought...your attempt did not name which compensation and disability benefits were being sought." Getting the extra year is important, since it includes 6 months of 100% post-hospitalization time.

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2) How better to connect left knee to right knee & flatfeet?

They awarded 30% right knee (osteoarthritis, post-TKR) and 0% bilateral pes planus as direct service-connected based on SMRs, but denied left knee (osteoarthritis, post-TKR). I documented 5 during-service bilateral knee pain visits (for which orthotics were repeatedly prescribed). Reason VA cited was that only right knee needed surgeries during service and left knee was never formally diagnosed with osteo during service. In addition to general words about parachuting and knees and whole-body-effect of osteo, I had 2 IMOs from post-service ortho dr and from podiatrist both stating that knees were service-connected. VA said those opinions looked at SMRs but not service x-rays and were just conjecture; C&P exam dr said he had no service x-rays so any conclusion would be conjecture, and that the left osteo could have just hit post-service. I thought the original IMOs were clear enough or would get the benefit of reasonable doubt in the vets favor, but the VA decision says the IMOs conclusion of SC is not in agreement with the C&P opinion that concluding SC would be conjecture. It would be possible to ask both ortho and podiatrist to write new IMOs specifically connecting left knee to right knee and flatfeet, now that those are SC (going secondary instead of direct SC?). Getting the left knee is important, since it would put me at 60% total with the bilateral.

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3) Conditions that they deferred?

I also claimed cervical and thoracolumbar IVDS, and VA just says that decision is deferred "for further development" and "because we need additional evidence". I sent in SMR/CMRs on that and a third "is service-connected" IMO. The C&P dr didn't seem to know what IVDS stood for, and would only do the thoracolumbar ROM (then didn't record it in his notes). I had already sent in both ROM testing from a civilian dr certifying that they had used the mil/VA ROM testing guidelines. I think VA has enough to go on, and just want them to issue a decision using what's already there.

[Commander Bob]

I don't know how to go now: NOD vs appeal vs hearing vs CUE vs whatever, for the following problems:

jmho... NOD

[Hoppy]

Thad,

NOD

I do not think you can file a cue when the claim is still open and subject to appeal.

Work with an SO

Is this the survival guide your talking about?

How to File and Collect on VA Claims by John D. Roche

I do not have a copy of this book. However, if you feel like you've followed the proper directions something is wrong. Either you misread something or the book is seriously flawed.

Any communication or action indicating an intent to apply for

one or more benefits under the laws administered by VA, from

a claimant, his or her dully authorized representative, a

member of Congress, or some other person acting as next

friend of a claimant who is not sui juris may be considered

an informal claim. Such informal claim must identify the

benefit sought. 38 C.F.R. § 3.155(a).

The key here is how does the VA interpret the identification of the benefit sought. Laws are subject to interpretation. That is why I read BVA cases. These cases will give insight into how the BVA interprets the language of the law. From what I have read I would never tell somebody to file an informal claim that is so general that it could be applied to any and all conditions that might be compensatable. This is the link to the BVA search engine.

http://www.index.va.gov/search/va/bva.html

The below citation shows how even though the veteran had a claim for hearing loss the VA would not allow an informal claim for ringing in the ears. I have read hundreds of cases where informal claims were not allowed because the benefit sought was not specifically address by the veteran.

Citation Nr: 0915928

In the August 1991

application for VA compensation and benefits, the Veteran

listed his claims for service connection as hearing loss,

chloracne, and sebaceous cyst. There is no mention of

tinnitus in the application or any other correspondence sent

by the Veteran to the RO. The Court has held that VA is not

required to conjure up issues not raised by the claimant.

See Brannon v. West, 12 Vet. App. 32, 35 (1998).

It sounds like you advanced a claim for direct service connection for the knee that was not surgically repaired based on four episodes of pain while in the military. You could argue that the absence of the x-rays seems to be an issue that is only relevant to the raters. The doctor who wrote her IMO felt confident that your condition was related to service based on the service medical records. Basically, they did not think that Dr. who wrote the IMO could link four episodes of non-diagnosed pain to a current condition without x-rays. You could go back to the doctor and seek a more detailed explanation of how he made his determination.

The VA is supposed to consider the possibility that the nonsurgical knee could be degraded as secondary to the fact that you favored the surgically repaired knee. If it were me I would have sought and IMO at the same time addressing the possibility that the currently condition of the non-surgically repaired knee was accelerated by the fact that you had an ongoing disability on the surgically repaired knee. If you were to file a claim for the nonsurgically repaired knee stating that it was degraded of the result of favoring the surgically repaired knee the VA will probably tell you that they already evaluated both the possibility that there was a claim for direct service connection and a claim or secondary service connection. They will tell you that the claim did not have any evidence suggesting the secondary condition. The reason why they have not talked about the secondary condition having been adjudicated is that they are desperate not to tip you off as to other alternatives as how to advance the claim. Get a service officer and asked him to advance a claim for secondary conditions to the now service connected knee. Also, if it were me I would get another more detailed IMO addressing both direct service connection and secondary service connection.

Medical evidence wins claims. I do not recommend that you appeal a denied claim without an attempt to bolster the medical evidence during the appeal process. I would get a more detailed and in-depth medical opinion showing how your episodes of pain in the military are related to the current condition. Additionally, I would get an IMO addressing the possibility that the nonsurgically repaired knee has degraded as a result of a chronic problem with the surgically repaired knee.

I don't know what to tell you about the flatfeet or the other deferred conditions. I have read claims where early degradation due to favoring or altered gait was considered to have caused secondary conditions. However, flatfeet is not something I am familiar with.

[Thad]

Thanks, Hoppy, appreciate your thoughts -- I'll work on them while I dig for other records and words.

Thad

[LarryJ]

You can essentially forget the "informal claim" that you originally sent. They are correct, you did not identify a specific disability/illness. An informal claim still has to be specific at to what you seek and what you are claiming...............it is informal only in the sense that you are not using form 21-526 or VONAPPS's online form 21-526.

A little-known fact is that, once you have sent in a completed Form 21-526, then, for any claims made after that original form 21-526..........all you need do is use a Statement In Support of Claim.......but, you STILL must identify WHAT you are claiming.

Sending in an informal "shot-gun" claim, just to establish an Effective Date won't work, otherwise EVERYBODY, on the day they left the service would all just stop by the post office and send the Va an informal non-specific claim in case something should come up somewhere on down the road.

[Teac]

Thad,

You need to pay close attention to the reasons for denial. All denials tell you what you need to get a claim approved. Also an IMO is not worth spit if the doctor writing the opinion has not read the active duty medical records, and determines a logical NEXUS to the condition that incurred on active duty, or for secondary conditions, a nexus to the primary condition. A doctor can't just write his opinion and expect it to be honored unless he can justify his IMO based on the medical record.

Also the benefit of doubt only applies when the evidence is not balanced. This means the majority of the evidence must be in your favor in order to win a claim. If the doctors IMO was considered not to be valid then it would seem that he did not back up the opinion with the medical evidence of record. If you had more than one IMO that might have helped. But when you only have one, it is much eaiser for the va to discredit the opinion, and deny the claim....

[carlie]

Thad,

Did this rating decision grant 30 % SC'd as your profile shows ?

carlie