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doc25
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Posts posted by doc25
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9 hours ago, Buck52 said:
I would ask for a BVA HEARING BY A JUDGE.
vets in the ques I heard through the grapevine the travel board is suppose to start send out letters for veterans to opt in to the virtual hearings, if your schedule for a hearing date and was cancel or you ain't heard anything due to covid-19 they are going to do these hearings by virtual hearings.
If a Veteran is scheduled a hearing at his R.O....And has been waiting ..he may receive a letter from the travel board letting him know he can opt to the virtual hearing.
I believe this in in the works?
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1 minute ago, broncovet said:
Dont give up. They win if you do. Here is what to do instead:
1. Get help. If you have a VSO, upgrade him to either a "better VSO" or an attorney.
2. File, next time, with the BVA.
3. "upgrade" your skills. If you dont know whether or not you have all 3 Caluza elements, then upgrade them so that you DO know whether or not you have the Caluza elements.
4. Ask hadit for help. Post specifics, such as your "reasons and bases for denial" from the denial decisions, so that we may be able to identify "why" it was denied, you can correct it and win.
5. Try the white house hotline.
6. Use any or all of the above.
I have done all you have suggested. The themed rationale is "congenital or pre-existed service" since 2007.
My entrance medical exam refutes that rationale.
The VBA has obtusely ignored the presumption of soundness that applies to the claim.
By not finding clear and unmistakable evidence that congenital flat feet pre-existed service.
The burden falls on the government to find such evidence. (An unfavorable nexus based on mere speculation in 2007 is the end all apparently. Then another in 2016 that clearly shows the examiner contradicts himself with stating "at least as likely as not" the veterans claimed condition is related to military service, but in his rationale the examiner merely agrees with the 2007 examiner about congenital flat feet.)
Even if the presumption of soundness was rebutted with clear and unmistakable evidence;the second prong is rebutting aggravation of a pre-existing condition with clear and unmistakable evidence that the pre-existing condition was NOT aggravated by military service.
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At this point, I've become another statistic of the VA hamster wheel for a claim appeal that has merit for acquired pes planus. This has gone on for far too long and I'm pretty much done with it. I'm not one to give up, but I learned a long time ago to pick my battles.
I am 100% scheduler with an FCE looming around February 2021 for PTSD and Depression. If I get reduced afterwards, I might revisit the flat foot appeal with new and relevant evidence that I have. I have until Aug 13 2021 to appeal.
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13 hours ago, deedub75 said:
I get what your attorney was trying to with sending your letter in with the HLR. They wanted to get the claim in front of a DRO whereas a supplement claim puts it in front of a regular rater. But it's clear in M21-5 that under an HLR, only the evidence already of record will be used so the letter submitted with the HLR is not supposed to be used in the new decision.
I think you will win with the supplemental claim but it sucks that it will prolong things for you. I had to do the same and it really didn't take that long. I submitted my supplemental claim on February 3, 2020, and after 10 years of fighting, these claims were finally granted on March 17, 2020. Too bad that made February 3, 2020, when my some of them go back to October 2010. I filed an HLR on April 27, 2020, to have the effective date corrected and they corrected the effective dates this month. I'm waiting on retro to hit the account.
Wonderful news for you. I know my flat feet are rateable at 30%, but knowing how it will go, I probably will get 0%. LOL.
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On 8/17/2020 at 7:51 PM, deedub75 said:
Did you send in that letter from CCK with your HLR? When you get your letter in the mail, see if it’s listed as evidence. If it’s considered to be evidence, they would not use it in the new decision. With the HLR, they will not use any new evidence in the new decision.
That letter would have best been sent in with a supplemental claim.
CCK sent that letter with the HLR 20-0996 form. We'll be submitting a supplemental claim for sure.
I know in every fiber of my being this claim has not been afforded due diligence. It's an injustice. All the ROs ought to have done in Winston-Salem, NC and Houston use the applicable laws and low ball me with a 0% in 2007 and 2016. Instead, here I am denied again...and because of this injustice. I will continue pursuing it until my last breathe. Some people will say to leave it alone, since I'm 100% already. I will not.
It's not my first denial, but this one is a tough pill to swallow. This one is going on 13 years now. I can only imagine what many veterans have gone through and continue to be going through; fighting for their benefits for 20+ years.
I know once it gets service-connected first, I have CUEs to appeal the effective date.
My apologies for the rant.
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HLR review did not go well. Reviewer agreed with the previous denials. It closed and there was no change in ebenefits. Bilateral Flat Feet still remained NOT SERVICE CONNECTED. I'm going to do a supplemental claim because I have new and relevant evidence that was not in the VA's possession over the past 13 years. I barely just found it a few months ago...low and behold electronically; in tricareonline.com.
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2 hours ago, stumpy579 said:
Pes Planus can be congenital or acquired. At one time VA would just deny any congenital condition by stating "by its very nature a congenital condition had to pre existed service". Now there is VA law that says a condition cannot be proven to have pre existed service simply because it is congenital. VBA still uses that "congenital" word to attempt to rebut the presumption of sound condition at entrance even if the condition you are attempting to service connect is not noted at entrance. VBA really wants to rebut the presumption of soundness because then you must prove aggravation. You had normal archs at entry therefore the onerous burden falls on VA. The fact is it is not possible for VA to meet that burden so they attempt to cheat. Your lawyer points this all out in the letter. Hopefully you will get a swift grant of service connection from VBA.
My thoughts exactly. Thanks.
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On 8/11/2020 at 8:29 AM, stumpy579 said:
VBA will always try to use the word "congenital" as evidence the condition pre existed service even though it is not noted on entrance exam or within a short period after entrance. They are wrong and they know it but do it anyway. They try to rebut presumption of sound condition at entrance illegally.
The only prerequisite for the application of the presumption of soundness is that the veteran's entry examination be clear of any noted diseases or disabilities. See Wagner, 370 F.3d at 1096. The Court has recognized that service connection may be granted for congenital diseases. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The presumption of soundness applies if a veteran's congenital condition is not noted at entry. See id.
Here is my entrance medical exam. Hallux valgus is noted above "Normal Archs". I do not contend that hallux valgus is congenital.
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9 minutes ago, deedub75 said:
It shouldn't even matter. You should be service connected either way. If you entered the service with them knowing you had pes planus and it was aggravated due to your military service then service connection is warranted. This is what happened my case.
If you had no problems with your feet when you entered service and developed pes planus while in service and it is in your records then service connection is warranted.
I don't see the issue here. When I worked for VA I saw all types of injuries that happened to service members while on active duty that had nothing to do with active service. The fact is that it doesn't matter as long as it happened while you were on active duty. I can't count how many claims I worked on where a service member was playing basketball and tore an ACL. Did it have anything to do with active duty sevice? No, but it happened while the person was on active duty and they were granted service connection for it. I had a claim where a guy was bench pressing 80lb dumbbells and dropped one on his face breaking several bones in his face and required multiple surgeries. When he got off active duty he was service connected for his injuries.
My issues are more with these VA examiners not following the regulations and throwing in their erroneous rules and opinions with no scientific backing whatsoever. It took me almost 10 years to get service connected for my knees and back secondary to pes planus even after they finally granted service connection for pes planus. A nurse practioner first said that I had a normal gait so it was impossible for pes planus to cause my knee and back issues even though my exit exam clearly said I had an abnormal gait. Then they said my abnormal gait wasn't bad enough even going as far as saying that the 'literature' shows that it's impossible for an abnormal gait to cause knee and back issues. Of course she didn't actually cite the 'literature' because it doesn't exist. Then they said my knee and back issues were likely caused by my age and me being overweight. When I filed the claims in 2010 I was like 170lbs and 32 years old.
Unfortunately, it mattered that the daggum PA that did the BDD, flat out lied about that congenital rationale; resulting in my claim being denied.
I completely agree with you.
Being that the congenital rationale was used, presumption of aggravation ought to have been applied by the flippin' Winston-Salem,NC RO that was assigned to my claim. Then, the Houston RO just went along with that decision....twice.
I'm seeking 1. service connection and 2. the appropriate earliest effective date due to CUE for my appeal. Winston-Salem RO should've gotten it right the first time.
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11 hours ago, Berta said:
The citations are very good .
I would have written this differently however.
It looks to me as if the VA did obtain your SMRs ( that would be listed in the decision's evidence list)
However they violated 38 CFR. 4.6 because it appears they did not even read them , even regarding the past denials.
And I would have filed CUE in April 2019, probably a day after I got the decision,.
Hopefully the HLR will do the right thing.
CCK had more info than we have here so , I do think it will help,but I will check the Citations, as soon as I get time.
38 CFR 4.6 covers a multitude of legal errors the VA can make . It is my Favorite regulation.
"§ 4.6 Evaluation of evidence.The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."
https://www.law.cornell.edu/cfr/text/38/4.6
Short and sweet.
Ms. Berta it's always enlightening reading your responses.
I did find existing medical evidence of record that was not properly weighed; in my electronic medical records via tricareonline, is that "Acquired Pes Planus" was dated April 19,2007 in my medical problem list. My initial diagnosis for Bilateral Pes Planus was 05DEC2006. I ETS'd 14JUL07.
I can provide redacted files to corroborate this for your review.
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3 hours ago, deedub75 said:
Reading the evidence in your letter just shows how erroneous these VA examiners can be. What does it even matter whether or not you had a congenital foot issue when entering the military? It seems clear based in the evidence that you developed bilateral foot issues while in service.
I had flat feet noted on my entrance exam and had some issues while in active duty. It was noted on my exit exam that I had an abnormal gait. Being ignorant about how VA disability worked, I didn’t know I could file all of the issues I had when I was sent to the VA to file claims as part of my out processing. I only filed for an ankle and a varicocele that was aggravated during my service. These were also on my entrance exam. Even then the examiner just told me think of anything that bothered me on active duty. There were others like allergies and sinusitis that I had no idea VA would service connect.
My initial flat foot claim was denied on an ACE exam because the examiner said I didn’t go to the doctor enough times for it while on active duty. There is no such requirement on how many time you have to go get seen for an issue. I asked for a DRO review and it was granted on appeal
There was no evidence of congenital or pre-existing flat feet upon medical entrance exam.
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13 hours ago, pacmanx1 said:
OK, it is early Monday morning and I have not had my drugs but why did CC&K file this claim as a CUE. If your claim was rated and issued on or around April 23, 2019 and this letter was submitted on April1, 2020 why didn't they just submit a disagreement since it would be a lot easier to win than a CUE claim (within a year time frame of your last denial). Don't get me wrong you can still win a CUE claim and they would result in the same benefits but a CUE claim has a higher threshold to meat than a simple disagreement.
Sometimes it is best to get service connected then fight for the effective date.
1. The claim has been denied 3x already. Still Seeking service connection.
2. The VBA erred in denying my acquired flat feet claim in Oct 9,2007 and the last two attempts for SC.
In my case, I believe I should've have been rated at least 10% for acquired bilateral flat feet and the effective date ought to have been 14JUL2007 (ETS)....but I'll take 01NOV2007 since the first denial is dated Oct 9,2007.
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This is the letter CCK sent for my appeal. Does it suffice to make a strong arguement for a CUE??
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On 9/7/2019 at 10:17 AM, Justaskpat said:
In 2011 I was denied SC for IBS. There is evidence in my SMRs of chronic IBS that began during my military service. The C&P report also stated I had IBS. I would appreciate all comments and suggestions regarding my CUE before I submit it. For the sake of clarity, I'm also attaching that shows links to support my statement that there is no medical test or objective evidence that can confirm IBS.
Thank you.
CUE IBS 2011.pdf 703.2 kB · 9 downloads Errors + Confusion in Examiners Report 7-31-2010.pdf 2.54 MB · 5 downloads
§4.114 Schedule of ratings—digestive system.
Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.
Unfortunately, this statute would rebut your CUE, to seperate the combined IBS and GERD; but there's some good news.
My understanding of the bolded part, is that if a single rating is going to be assigned; the highest rating must be given from either 7319 and 7346 depending on the severity of the symptoms.
What does this mean? The highest rating of the two diagnostic codes would fall under 7346 Hiatal Hernia [GERD is assigned this code]at 60%. (That is the highest that is allowable.)
7346 Hernia hiatal: (hiatal hernia)
Symptoms of pain, vomiting, material weight loss and hematemesis or
melena with moderate anemia; or other symptom combinations
productive of severe impairment of health.................................................................. 60Here is a case where the veteran was granted 60% for combined GERD and IBS. Please read carefully. This case outlines exactly how the board used the medical evidence and the LAW to get it granted. You may have a CUE for getting assigned the highest rating.
https://www.va.gov/vetapp09/files2/0919318.txt
I apologize if this isn't what would be ideal to hear, but I believe I found a way for attaining a higher evaluation, under your circumstances.
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On 9/5/2019 at 7:28 AM, Buck52 said:
No doc25 thats not necessary I agree with you about the secondary claims...a diagnose should already been made hence the secondary claim to sleep apnea so Roger that what you mention above.
I had to read it over and I could see how it would be confusing. No worries.
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8 hours ago, Mcbwv said:
Hello, I finally got my C&P for Hearing loss and Tinnitus and received the results in which I clarified here on the forum. My claim consists of 1] PTSD 2] Hearing Loss 3] Tinnitus.
IRIS inquiry told me that everything has been received except for my Audio Exam results by the RO . There is also still an open VA request in Ebenefits for the results. They also stated the results were uploaded but not pulled down yet by the RO? Does anyone have any insight on this? Since I have the results can I upload them in Ebenefits? Or just sit back and wait for the RO to continue the process. My Claim is now 101 days old. With an estimated completion date of September 2nd to October 15.
If your C&P was administered at a VA facility you would have access to it within 3 to 10 days in myhealthevet in your VA electronic record (Blue Button)
If it was done with QTC,VES, or LHI...then you wouldn't have access to that C&P exam immediately.
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5 hours ago, paulstrgn said:
You are correct. There are certain meds that cause OSA as well as disabilities such as PTSD. You will just need to get an IMO to connect it to your disability.
I concur.
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6 hours ago, NoZZZ's said:
I read this as meaning that for secondary service connection, you do not need the above to happen while in service. You do need the diagnosis, etc., at some point in order to claim it as secondary, but just not while in service (as long as you have something to secondary service connect it to).
That's how I meant it to be read. But, it's always good to be fact checked. Which is always appreciated.
Secondary connection still requires this criteria to be met:
#1. Current Diagnosis
#2. Service-Connected Disability
#3. Nexus of Opinion linking #1 to #2 and a rationale present.
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On 9/3/2019 at 9:00 PM, Buck52 said:
doc25,
Respectfully, but where in the Code of Federal Regulations '' or other possible VA Previsions or MR-1 does it mention this or close to this?
''You don't require a diagnosis, sleep study of OSA or issuance of a medically required CPAP in-service if you are secondary connecting it to a service connected disability such as certain mental health disorders, respiratory conditions, heart conditions,'' diabetes, etc.''
??????????
Buck,
I'm sure you're correct, but allow me to explain.
I'm talking about SECONDARY CONNECTION....not DIRECT SERVICE CONNECTION which would need all that I mentioned to be present IN-SERVICE.
A veteran still requires a diagnosis, sleep study of OSA, and issuance of of a medically required CPAP after service plus a Service Connected disability that could link OSA, on a secondary basis.
But, if you require that I reference the CFR. I'll go back and do my homework. I'll follow up after I'm done.
I appreciate the fact checking.
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6 hours ago, Clarence said:
Hello Vets!
I read on one website concerning Sleep Apnea that in accordance with VA Adjudication Manual M21-1, Part III, subpart iv, chapter 4, Section D updated April 18, 2016; There is no longer the requirement to have been diagnosed with SA prior to leaving the military to receive a rating.
First, I looked at the cited manual and Section D, does not pertain to Respiratory issues, Section F does. So I'm just looking for clarification.
Clarence
You don't require a diagnosis, sleep study of OSA or issuance of a medically required CPAP in-service if you are secondary connecting it to a service connected disability such as certain mental health disorders, respiratory conditions, heart conditions, diabetes, etc.
You do require a diagnosis, sleep study, and a medically required CPAP issued in-service to direct service connect. Although, the reasonable doubt doctrine has been occasionally used to grant direct service connection for OSA based off of buddy letters or family letters.
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What was your MOS?
If you were a groundpounder, you might have a small chance to use that. It's a stretch, considering you DID NOT seek treatment in-service, but it's worth a shot.
If you were a POG/Admin, then there's zero chance. Which I don't think you were, since you mentioned you would PT 5 days a week.
I agree with getting a buddy letter. In addition, it would help if you had your C-file or service medical record.
Once you tell me your MOS i can begin to research some medical literature for you and give you my findings.
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On 6/27/2019 at 8:01 PM, Diotima said:
Hi guys update... I just wanted to show you a excerpt from my medical records with PII blurred out... this is my FIRST sleep study in 2014... my recent one from this year had a positive diagnosis. My doctor has never brought up Hypersomnia but im increasingly thinking all this is linked somehow. CPAP helps somewhat but I am plagued by tiredness despite this.
So while in military I was plagued by constant fatigue sometime after coming back from Afghanistan I would wager... headaches... just tired all the time.
This seems to have morphed into pathologic hypersomnia (doc never brought this up to me)...
Sleep Apnea diagnosis a few years later so who knows if it was missed before... argh! The doctor makes it sound as if I have it and that it was a cause of my military service "at least as likely as not a result.." (how would you interpret this weird wording?... it seems I could claim it at least and claim SA secondary to Hypersomnia.
I found this on the phrase.. https://cck-law.com/news/news-va-standard-of-proof-at-least-as-likely-as-not/
The “at least as likely as not” standard is part of the non-adversarial nature of the VA disability claims process. For claims for VA disability benefits, veterans do not need to prove conclusively that they are entitled to a certain benefit, only that the evidence shows that there is at least a 50% likelihood that they are entitled to the benefit they are seeking.
If a veteran obtains a private medical opinion, whether it be from an independent medical professional or their personal physician, the doctor will need to use the “at least as likely as not” language. A favorable private medical opinion that uses VA’s standard of proof can be helpful in rebutting against a negative C&P examination, or in simply providing one of the requirements of service connection: a medical nexus.
My VA doc seems to not really give a **** since he never brought this up and it makes me somewhat mad as it seems pretty clear I should be able to claim it.
At the very least you should have been granted hypersomnia at that time. Depending on the severity it can be rated under 8911 petit mal seizure. No, hypersomnia is not a seizure, but if you suddenly lose consciousness or fall asleep this is not good. As it can put you and others in danger. See my point?
You probably should re-open if it's over one year or claim hypersomnia. BEWARE: if you claim hypersomnia you MIGHT lose your earliest effective date.
But, if it was diagnosed during that exam and you were afforded a favorable nexus I don't see why you would lose that earliest effective date.
If you're still feeling tired, despite using your CPAP, there may have been a possible progression of worsening from OSA to Central Sleep Apnea.
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17 hours ago, Diotima said:
That was my idea doing a Supplemental Claim but from what I can gather those claims can only be done within 1 year. Since it's been a few years since the original claim that seems like it would not work. I heard you can reopen the original claim and try to go that route however.
I'll look into that nexus of opinion, although that is the first I've heard of that.
I do have a in-service general anxiety diagnosis but nothing that would fit in respiratory/nasal/sinus/heart. I did have to see a cardiologist for a vasovagal syncope they were concerned about but from what I gather the doctor thought I was healthy after seeing him.
Apart from my general anxiety in-service connection I also have tinnitus and spinal issues (30/10/10)
There's some good news. Sleep Apnea can be Secondary connected to Mental disorders; in your case, your anxiety disorder. It's tough, but doable.
Below is a medical research that links Sleep Apnea to Psychiatric disorders.
Be advised, going the secondary connection route will re-start the effective date; meaning you'll lose the original effective date because it will be considered a new claim. Sorry to be a debbie downer. Weigh the risks.
Vasovagal syncope can worsen Sleep Apnea, according to some studies,but you are not service-connected for it. If you're not service connected, you can't use it to secondary connect.
Vaccine
in VA Disability Claims Research
Posted
I'm a VHA employee and from what we were told; was that VA employees will no longer be receiving the covid vaccine, until more is available. The VHA will be transitioning to administering the covid vaccine to veterans only, when it becomes available. No timeline was provided. So much vague.