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mrstephens11
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Posts posted by mrstephens11
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Thank you Berta. I read those pages on the VA's site. Aren't those the presumed items? If the doctor thinks it's related then is there a chance I can still get it SC'd?
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Hello,
Recently my father was service connected for exposure to agent orange. I was recently diagnosed with bicuspid heart valve. I was thinking about trying to get this service connected via agent orange, as no one in my family tree has had a bicuspid valve.
My questions are:
1. What does the VA need from my father's c-file to link me to being a child of a veteran that was exposed to agent orange?
2. I will find a private doctor to fill out the DBQ and have them say "at least as likely as not" and that they have reviewed my complete c-file, but what about medical evidence that can link the bicuspid valve to agent orange exposure in my father? Is there a good resource for information like this?
3. Any other advise for filing a claim based on a parent's exposure to agent orange?
Thank you,
Stephens
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I don't have information about the PTSD claim. However, I would like to offer some advice on the job front. I work in IT as well and was informed of the Americans with Disabilities Act by my VA neurologist. The ADA is the goverment's way of forcing companies to make reasonable work accommodations for people with disabilities. If you work in IT then I grantee you that your Human Resources Department already has a template and intrusions already drafted. They are accustom to people asking for reasonable work accommodations.
What is a reasonable work accommodation? You said you need sleep and to reduce your stress. Think of ways to ask for both.
Examples:
- Employee can work nights and weekends to account for times that the disability is flaring up. Which happens 3-5 times a week.
- Employee can work from home. ( I know you already work from home but, get it documented anyway. Might save you some grief one day.)
- Employee should have reduced/no on call rotation. ( Being on call is stressful. If you feel bad about making the team take more on call, ask for some other duty that isn't as stressful to account for the work load.)
- Employee can leave work for medical appointments.
- Employee can have daily 2-3 hour breaks, as long as the hours are accounted for.
Process:
- Tell your HR department "I need to start the ADA process. Can you tell me where we need to begin?"
- They shouldn't ask questions about what the disability is, instead they will likely give you some forms to have your doctor fill out.
- The doctor will fill out the forms listing what the diagnosis is and what work accommodations you need.
- Send the forms back to HR and they will send you a letter to you and your boss stating the accommodations they have made.
- Get some rest!
Please take this advise. It saved my life. Please let me know if you go this route.
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I haven't gotten the cart before that horse. The DBQ is for headaches/occipital neuralgia due to my knee giving out and causing me to fall down stairs.
The board certified neurologist states in the DBQ, "My medical impression is that these occipital neuralgia headaches are due to his left service connected knee." So there is the Nexus, no? Should I have her change the word impression to opinion?
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The occipital neuralgia hasn't been service connected. I'm hoping that this DBQ will service connect it, I haven't filed yet. I'm filing next week.
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Please give me your opinion on how this headache DBQ is filled out. This was done by a board certified neurologist. My left knee is is rated at 10% for limitation of flexion. There are STRs that state my knee gave out in service. I have current medical records that also state my knee goes out. I'm also going to claim knee instability (I didn't know about this when I filed the first time.) I have a work accommodation forms filled out by my VA PC and Neurologist that state I need to leave work, not show up, and be allowed to complete my work on nights and weekends. The forms also state things like "Can't do any other activity during severe headaches" and "bedridden". I also have a letter from work stating they granted these work accommodations and 14 buddy letters.
I'm planning on asking for an extra-schedular rating since the headache schedule doesn't talk about involuntary body tics, ability to focus/keep on task, interference with reading, and interference with driving.
Opinions requested for:
- Nexus
- Does this fit extra-schedular ratings criteria?
- Does 1C and 2A cover medical reasoning that would normally be needed in an IMO to back up the doctor's nexus?
- What if anything should I ask the doctor to change?
Quote1A. Does the Veteran now have or has he or she ever been diagnosed with a headache condition?
Yes = Checked
1B. Select veteran's condition
Other = Occipital Neuralgia ICD Code = M54.81 Date of Diagnosis = REDACTED
1C. If there are additional diagnoses that pertain to a headache condition, list using above format:
Post - Traumatic Occipital Neuralgia M54.81 + G44.309
2A. Describe the history (including onset and course) of the veteran's headache conditions
Veteran's left knee gave out and he fell down stairs, striking the right occipital region of his head on the edge of the stairs. Occipital neuralgia headaches began shortly afterward.
2B. Does the Veteran's treatment plan include taking medications for the diagnosed condition?
Occipital nerve block injections, indomethacin, sumatriptan, flexeril
3A. Does the Veteran experience headache pain?
Yes = Checked
Constant head pain = Checked
Pain worsens with physical activity = Checked
Other = Stabbing and electric shock on right occipital region radiating to top of head
3B. Does the Veteran experience non-headache symptoms associated with headaches?
Yes = Checked
Other = Involuntary body tics from electric shock pain when headaches are severe.
3C. Indicate duration of typical head pain
1-2 days = checked
Other = Milder headaches up to one day, severe headaches 1-2 days
3D. Indicate location of typical head pain
Other = Right occipital region radiate in direction of top of head
4A. Migraine - Does the Veteran have characteristic prostrating attacks of migraine headache pain?
No = Checked
4B. Does the Veteran have very frequent prostrating and prolonged attacks of migraine headache pain?
No = Checked
4C. Non-Migraine - Does the Veteran have characteristic prostrating attacks of migraine headache pain?
Yes = Checked
More frequently than once per month = checked
4B. Does the Veteran have very frequent prostrating and prolonged attacks of non-migraine headache pain?
Yes = Checked
5A. Does the veteran have any scars related....
No = Checked
5B. Does the veteran have other pertinent physical findings, complications, conditions, signs or symptoms related...
No = Checked
6. Are there any other significant diagnostic test findings and or results?
No = Checked
7. Does the veteran's headache condition impact his or her ability to work?
Yes = Checked
Mild headaches make it hard to concentrate/focus, read, keep on task, or drive.
Severe headaches are fully debilitating and cause the veteran to be bedridden.
8. Remarks
Milder headaches occur up to five days a week, severe headaches 3 to 5 per month, but may last 2 days each. My medical impression is that these occipital neuralgia headaches are due to his left service connected knee. The veteran's complete C-file was reviewed.
Thank you
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EED means effective date? If so then yes, the 2015 claim was retro awarded to 2005 when I was discharged.
Yes, I claimed hemorrhoids and right knee in the 2005 claim.
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Let me try to list this out in order. Sorry if I'm not being clear.
- In 2005 after my discharge from 2003 - 2005, I filed a claim with in one year of my discharge for the hemorrhoids and bilateral chondromalacia.
- In 2007 I went to the VA to ask about my claim because I didn't hear anything. I was told I didn't have a claim. So I filed again for every thing that I filed for the first time with some STR documents I brought with me. I never heard anything back and this claim is not in my C-file.
- In 2015 at my Father's behest, I filed again. This time I took my copies of the 2005 claim with a confirmation number from their online system I used to file the claim, to the TVC and they helped me file a claim and we attached the 2005 claim to the 2015 claim. Again I supplied some supporting records. I didn't know about C-files and I didn't know what they had. I assumed again they had all my files.
- In 2015 after C&Ps for my knees and hemorrhoids the VA granted my left knee and some other items, but denied my right knee and hemorrhoids. The VA back dated all of the disabilities that they granted based on the 2005 claim that I supplied to them. I know this because the only claim I have in my C-file is the 2005 claim that I had hand written notes on and the decision letter stated that my retro award was based on an un-adjudicated claim from with in one year of my discharge.
- In 2016 I stopped listening to the TVC reps that told me not to appeal (don't rock the boat). I started researching the VA claims process and I requested my C-file. I get my c-file and I get pissed off. I see so many mistakes that could have been fixed in an appeal.
- In 2017 I file 3 CUEs: hemorrhoids, hearing, right knee. I supplied STR documents of hemorrhoids and right knee chondromalacia that were not in my C-file and the VA denies CUE and reopens claim granting me hemorrhoids and right knee with an effective date of 2017. However, they are more focused on it not being a CUE forgetting that they reopened the 2015 claim, which reopened the 2005 claim that was with in one year of my discharge. They note in the award letter that the evidence of record in 2015 didn't have STR stating hemorrhoids or chondromalacia right knee. They granted it because I supplied them with STRs that they didn't have.
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To add to this I have a record that they do not have yet. It talks about my knees giving out. I didn't add it because I didn't know about the instability diagnostic code. Should I reopen and add that record and claim an inferred claim for instability?
I hate how complicated this all is. Just when you think you are getting a grasp on it, you realized there is so much more to learn.
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Yes, I got my c-file after my 2015 claim and I printed and sorted it. I then went through the records that I copied the day or two before my discharge. There are more than a few records I have that weren't in my c-file. They are all from my active service time frame. When I filed my claim in 2005 & 2007, (which they claimed I never did) I put some of my supporting records in the claim. Then in 2015, I filed again with some different records I guess? For that claim they got most of it right and back dated to the claim in 2005, only because I kept records of the 2005 claim and added it to the 2015 claim.
I was discharged for bilateral chondromalacia (knees), it literally says that on my discharge papers(not the DD214 but the documents leading up to the discharge). They service connected me in 2015 for my left knee but not my right. I can't even tell you how angry I was when that happened.
The records I filed with the 2017 claim/CUEs wasn't in my C-file and are STRs from my active service time. Since I filed a claim in 2005, within one year of my discharge my effective date for the hemorrhoids and right knee should be 09/17/2005 not 2017.
I'm thinking I will have a DRO review this as it's pretty clear to me that " 38 CFR 3.156(c) New and Material evidence " applies here. I know this is a CUE, but I think I'll go with a DRO review.
Does that clear it up? Does a DRO review still make sense or is there some other way I should attack this?
Thank you.
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Yes, I have two issues with the way this played out. One is that the effective dates for both the hemorrhoids and chondromalacia right knee are wrong, since I gave them new evidence from Service Treatment Records. The other issue is the fact that I feel I should have been rated for painful motion for both flexion and extension. The VA didn't say which diagnostic code they used for rating the painful motion and since both flexion and extension have painful motion, I feel I should be rated at 10% for both.
How should I proceed?
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It was refunded retro actively and all interest paid on it is going to the loan's bottom line!
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But what about "38 CFR 3.103 - Procedural due process and appellate rights "
Quoteit is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law
38 CFR 4.59 doesn't specify the whole joint. In fact it says:
QuoteThe intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.
Since 5260 and 5261 are different disabilities/pathology doesn't painful motion apply to each of these independently?
And yes 5257 does apply to my knees, they give out from time to time.
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Based on what Berta has said about "Go CUE yourself" (asking the VA to file a CUE on their behalf during your appeals period), I have drafted this request. Please let me know what you think.
QuoteI respectfully request the VA to call a clear and unmistakable error "CUE" on themselves under “38 CFR 3.156(c) New and Material evidence” and to correct the effective date of my claim for hemorrhoids and chondromalacia right knee. I am still within my time limit for appeal and I reserve my right to appeal and to file my own CUE. The VA reopened my claim after denying CUEs for both hemorrhoids and chondromalacia right knee. However, I was award service connection for both based on the new and material evidence I submitted. This new and material evidence is “Service Department Records” and were not a part of the “evidence of record” at the time of reopening of the claim. Since I submitted a claim for both hemorrhoids and chondromalacia right knee within one year of my discharge, the effective date should be 09/17/2005 instead of 10/17/2017. My first claim for hemorrhoids and chondromalacia right knee are in my C-File. To add to this, the ratings decision letter I received in 2015 stated that my chondromalacia left knee was back dated to 09/17/2005 because of the un-adjudicated claim within one year of my discharge, which is the same claim I originally claimed hemorrhoids and chondromalacia right knee.
I respectfully request the VA to call a clear and unmistakable error "CUE" on themselves under “38 CFR 4.59 – Painful Motion” and “38 CFR 3.103 - Procedural due process and appellate rights” and to correct the lack of rating painful motion for both diagnostic code 5260 (Leg, limitation of flexion) and 5261 (Leg, limitation of extension). I am still within my time limit for appeal and I reserve my right to appeal and to file my own CUE. The VA reopened my claim after denying a CUE for chondromalacia right knee. However, I was award service connection for painful motion of the knee based on the new and material evidence I submitted. The VA didn’t specifically state in the rating decision letter which range of motion this was grated for. Since I have pain in both flexion and extension, as noted in the C&P exam dated 11/28/2017, I should be rated for 10% for diagnostic code 5260 and 10% for diagnostic code 5261. The effective date for these disabilities should be 09/17/2015, based on the reasoning and law stated in the first paragraph of this request for the VA to call “CUE” on themselves.
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I have a question about painful motion of the knee. I know that both 5260 limitation of flexion and 5261 limitation of extension can both be granted for one knee and not considered pyramiding. However, I just got a 10% rating for painful motion of the knee. They didn't say if it was for flexion or extension. Does the painful motion of joint in 38 CFR 4.59 only allow for one rating of the joint? I would think that since both flexion and extension are rated differently that I should be getting 10% for both since my C&P exam states that it was noted on both.
Should I NOD, CUE, or ask for DRO review?
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So all three of my CUEs where denied.
All three of my CUEs where for denied service connection due to lack of evidence in my record. I had STR evidence that wasn't in my C-File and I attached it for all three of the CUEs when I filed them. The VA took this as an opportunity to reopen my claims. I was awarded 20% for hemorrhoids, 10% for painful motion of knee, and denied hearing loss because they said I hear fine. The two effective dates are the date that I submitted the CUEs. Here is what the RDL (ratings decision letter) said.
QuoteThe effective date of this grant is October 17, 2017. Service connection has been established from the date the VA received your claim. When a claim of service connection is received more than one year after discharge from active duty, the effective date is the date the VA received the claim.
A clear and unmistakable error was not found in the previous rating decision dated September 2, 2015. The rating decision denied service connection for hemorrhoids because evidence of record at the time showed no evidence of hemorrhoids. Therefore, an earlier effective date establishing service connection was no shown.
I believe, that by entering the STR from the navy medical doctors and that the VA stated the "evidence of record at the time showed no evidence of 'symptom'", that 38 CFR 3.156(c) should apply and I should be granted an earlier effective date since I filed a claim for these disabilities with in one year of my discharge in 2005. Would someone please chime in and tell me if that is correct? Here is a link to the code (https://www.law.cornell.edu/cfr/text/38/3.156) Here is a link to the https://www.veteranslawblog.org/the-ultimate-va-claims-effective-date-checklist-how-to-get-an-earlier-effective-date-in-your-va-claim-or-appeal/ where I found out about this.
So I think I can NOD or CUE the effective dates. Should I ask for DRO review and point this out?
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I'm going to throw this in my CUE as well. It talks about case law that says they have to help my find claims based on the evidence.
VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).
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I found this at https://www.law.cornell.edu/uscode/text/38/5103A
Quote38 U.S.C. § 5103A (3) (B) Duty to Assist
For purposes of this paragraph, the term “maximum benefit” means the highest evaluation assignable in accordance with the evidence of record, as long as such evidence is adequate for rating purposes and sufficient to grant the earliest possible effective date in accordance with section 5110 of this title.
That looks like a CUE to me. I'm going to try it along with another one. This is on a decade old claim so I can't NOD.
Cheers,
Stephens
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Thank you Berta, you are so helpful!
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If I claimed to be rated for chondromalcia(knee) and I'm given a rating for flexion limitation and the VA didn't give me a rating for instability, but my knee does give out. Is it a CUE that they didn't try to give me a rating for instability? I have evidence of falling from my knee giving out in service and since then. Can some one cite some case law that would apply to them not giving me a rating even though I didn't exactly claim it?
Thank you,
Mike
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I will put the CUE information up when I get the BBE.
I know I want to CUE the effective dates. Is their a SOP for filing a CUE like Berta did in the appeals period? I've read around here and it looks like it's still a new tactic. If someone can point me to the right thread or give me some advice I will make a new thread with how I did it and how it goes.
Second question, I have a bilateral condition, 10% and 10%, which should add up to 1.9% with the VA's math. How is that counted in towards my rating? I don't see it in Ebenefits. Is that 1.9% rounded down to 0% or is it rounded up to 2%? Here is a break down of my ratings. I think this only gets me to 82% if we use VA math. Is that right? God that just feels so wrong.
- 70%
- 20%
- 10%
- 10% 10% Bilateral
Thank you all,
Stephens
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So I checked back after 60 days and after many emails saying that I would get answer in 24 hours, I got a phone call. The load company sent my paper work to the wrong department and told me that I would have to wait another 30-60 days. Seems the loan company is taking a page from the VA's playbook...
I'll report back when I know more,
Stephens
bicuspid heart valve, child of agent orange
in Agent Orange
Posted
No. There is nothing that would SC as a secondary. Oh well it was worth looking into. Thanks for the information.