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Everything posted by JKWilliamsSr

  1. Yup that is what I meant. I am going to use 38 CFR. 3.156 (C)(3) in order to challenge the effective date once my claim is complete. If that fail (which I can't see at the BVA level)..... I think I also have a CUE. In all my denial the VA stated that there were no complaints in service for my foot disabilities. In 2002 they denied it saying it was not well grounded because I did not provide additional information. In 2009 they said no complaints in service. In the denials they state that they viewed my SMR's from 1986 to 1996 (my dates of service). I get my C-File and find clear as day the claimed disabilities in my SMR's
  2. There was a recent decision about this pertaining to SMR's. Where it stated that regardless of when SMR's appear the effective date will be the original file date. In this decision you do not have to prove the records were before the adjudicator or not. It does not matter. I am going to see if I can find this decisions. EDIT: https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015778/Stowers-v.-Shinseki,-May-16,-2014,-26-Vet.App.-550
  3. Any doctor whether it is a VA doctor or an outside doctor can provide a recommendation for a rating. It is still up to the rating officer as to what percentage is granted if at all. The best thing the doctor can do is make sure that the documentation they are submitting has the necessary symptoms that are necessary for the rating they think you should have.
  4. I am having the same experience. I filed claims for 12 disabilities in in my denial they only referenced 3 of his opinions as justification for denial (which they applied the wrong law) but ignored the opinion of the other 9 disabilities. I will win easily on appeal. As far as the original question. I will always go for an IMO/IME over a DBQ if I am getting it from a non VA provider. My reason for this is I filed my claims with the presumption that I would need to win on appeal. I had every reason to believe the VA would deny me even with solid evidence and I was correct. My mistake this time around was filing an HLR instead of going straight to the board. I wasted time doing that. I am still waiting for my HLR and Supplemental claims to be completed before I move forward. Some Key Points: 1. Most of us that use an IMO/IME get one from an actual MD. I think this is very important because most C&P exams are done by either NP's or PA's. I personally have never been given a C&P exam by an actual MD. What makes this important is during my appeal to the BVA I am going to challenge the qualifications of the PA that did my C&P exams. This will force the VA to provide the PA's curriculum vitae and when I provide the challenge I will force the VA to explain how they found the PA more qualified than Dr. Ellis who is an actual MD and his curriculum vitae is actually quite impressive. 2. I submitted a lay statement for every disability that I claimed. I also have lay statements from my wife and ex wife that support my claims. I think many people sleep on how powerful lay statements are. Raters tend to ignore the fact that it is just as important as any medical statement. Raters state specifically why they find any lay statements no credible. They just can't make a blanket statement saying it was not credible. It will not stand up to legal scrutiny. From the onset lay statements are presumed truthful and credible. This is stated in Caluza v. Brown. So the VA has to prove it is inaccurate and not credible. 3. Right now I am working on project that has me going through a large number of CAVC cases. Something is standing out and that is the importance of a proper reasons and bases for decisions. The CAVC has Vacated and Remanded a large number of cases where the BVA did not provide proper reasons and bases for denying benefits. In other words they were not specific. In order to deny a benefit raters are required to explain the specific reason they did not find any evidence credible. They cannot make blanket statements denying credibility. They have to be specific.
  5. Where raters screw up is by completely ignore outside IME/IMO's and that is in violation of applicable laws. They If they give more weight to a C&P examiner they have to state the exact reasons why. They cannot say things like the C&P examiner supplied the most recent evidence. The reasons for discounting any medical opinion can only be made with a valid medical evidence.
  6. I agree with you on this Pete. The only way I can see overcoming this is by medication. When I am on my medication my Asthma is controlled and I do not experience any Asthma symptoms. I stop taking the medication and the issues start quite quickly. If the breathing test does not warrant a rating then the only way to be compensated is by medication even for 10%. I have to use my medication daily which is why I am 30%
  7. If I read his original note the initial denial was based on SMR's did not show complaints. He finally got rated after SMR's finally appeared. So per the law he should get back pay from the original denial PROVIDED he can provide evidence of continual symptoms. The beauty behind the law is that you do not have to show proof the VA had the SMR's or not. It does not matter when the SMR's became a matter of record.
  8. The lack of symptomology is going to be a problem especially since you state this yourself. They will repeatedly deny you because of this which will force an appeal. I do have a question though. The assumption is that you had Asthma in 2004 which is why you are service connected. Were you on any medication during this period? The reason this is important is because I am 30% for asthma because of the medication I take. I have a diagnosis and I use Advair daily as well as carry a rescue inhaler as needed. You do not need to have asthma attacks to be service connected but if you were on medication during this period it would be a slam dunk for EED.
  9. Mine was deposited on Friday as well. The actual payment date was Jan 31 since the 1st fell on a Saturday. Ebenefits under payment history will show if a payment was sent to you.
  10. If the rater was doing his/her job they would have automatically done that but from what I hear that rarely happens. One thing is for certain IMO, you can forget about C&P examiners putting it all together for you. They never seem to figure that out. IMO this is what is needed to make the claim a slam dunk. While it may still fail at the VARO level it will easily get overturned at the BVA. 1. You will need a doctor to provide a nexus stating your back issues are caused by your knee issues. 2. Submit your own personal statement stating how your knee has caused you to experience back pain. The pain has caused you to limp which altered your gait which led to back pain. Now self interest makes it so your own personal statement may not be enough. 3. You will need someone else to submit a statement for you that has observed your knee issues causing you to limp and how they saw how it caused you back pain. This piece is critical because it makes your personal statement pretty much bulletproof. This is because of the decision handed down in Jandreau v. Nicholson where it states that "lay persons are generally competent to provide evidence on observable symptoms); see also 38 C.F.R. § 3.159(a)(2) (2015). However, because DC 5002 requires that “satisfactory evidence of painful motion” be “objectively confirmed,” a veteran’s testimony, alone, is not enough. There must also be objective confirmation from a person other than the veteran or claimant, be it a medical examiner or a lay person, of a veteran’s joint pain" You have all three of those and it should be a slam dunk.
  11. When you marry you can add her and her children as dependents. I have never heard of something like this triggering anything as far as new C&P exams.
  12. I think the reason for this is that it is not a requirement of the C&P examiner to review another doctors opinion. The only reason this would be necessary is if the rater needs an opinion of an outside examination report and this is something they would need to request. C&P examiners do not make rating decisions. They make the determination of they believe the condition is service connected or not. This is done via the submitted medical records in conjunction with the examination. C&P examiners have access to your entire C-File and can see all the information that is uploaded. They can see lay statement as well as reports from other doctors this is not necessary to be provided. They can just look it up themselves. It is the raters responsibility to review the outside doctors report and determine it's weight not the C&P Examiner. Where it can become tricky is if the rater decides to give the C&P examiner more weight than your examiner. Then the requirement is for the rater to state the specific medical reasons why. They cannot simply say they believe one over the other. On top of that most C&P examiners are either NP's or PA's. So it can be tricky for the VA to state why they gave their examiner more weight when most of us that use outside doctors use actual MD's. I have yet to have a C&P examination from an actual MD.
  13. There isn't a rater working at the VA right now that has not heard of Caluza. They often use it in their denials for service connection. So mentioning that statement in reference to lay statements puts them on the spot.
  14. That is what happened to me. In my 2009 denial for back issues the VA stated that while there were complaints of back issues in service there was no diagnosis of a chronic condition. I think this makes sense. I am not sure how pain is rated these days but it can be done without a diagnosis. This was decided in Saunders v. Wilkie. This Vet's claim was originated in 2008 and the ruling came down last year. I am not sure if this decision is retroactive to 2008 or not. Definitely a question for an attorney that specializes in veteran benefits. My guess is the rating for pain will be the minimum of 10% per affected joint.
  15. In my current HLR (still pending) one of the cases I cited was Caluza v. Brown where it states "the Court, in discussing the credibility of lay evidence, held that the truthfulness of evidence is presumed and that credible testimony is defined as that which is plausible or capable of being believed." This means that the any lay statement is presumend to be credible and if the VA is going to deny it then they will need to substantiate it. Now we all know they are not going to do this properly. I put in my HLR with the understanding I am am going to have to go the BVA route and want it there to show this information was before the rater when they made the decision.
  16. So I had a C&P exam today and it was a fast one as well but I don't think it was as bad as my last exam. This exam was for my foot claim. I was diagnosed on active duty with moderate pes planus and plantar fasciitis. When I applied in 2009 I was denied due to the VA's claim that I had no complaints in service. In 2018 I got a copy of my C-File that showed treatment in service. So in other words.... a rater got lazy. Today's exam was straight forward. 1. I walk into his office and he asks me to remove my socks and shoes. 2 The then asks me about the pain in my feet and where does it hurt. I explain that the pain is constant on use and it is on the inside of each foot and so bad that it forces me to put all my weight on the outside of my feet. 3. He quickly examines my feet and say to me that I definitely have flat feet 4. He has me stand facing me and looks at my feet. 5. He has me turn around and looks at my feet from the back 6. He then tells me I can put my sock and shoes back on. 7. He is working on the DBQ and comments to me that I have been seen several times during service for these issues. That was the end of the examination. All in all I think it was over in 10 minutes. Considering this an exam for flat feet I don't expect there was much to examine but more of a confirmation.
  17. I have always believed I would need to hire an attorney anyway because of EED. I was denied for both feet and back by the VA stating that my service records showed no complaints. Got my C-File and that was not true. SMR's show complaints and on top of that they really screwed up. My exit exam had normal feet. My exit exam actually has a diagnosis of moderate pes planus. I also have X-Ray and Podiatrist confirmation of flat feet. So the EED is should go all they way back to 2009....we are talking 6 figures.
  18. hmmmm......just got a courtesy call from the VA to remind me about my appointment tomorrow. That has never happened.
  19. Honestly.....I just want a decision letter because if my HLR (still waiting) and supplemental claims come back denied I am just going to hire an attorney (going to go with hill and ponton) and appeal directly to the board.
  20. I would not be surprised if this same thing happened to me. When I submitted my memorandum for record about my last C&P exam I asked for a new exam with a different examiner. I highly doubt this will go in my favor and I am willing to bet I get the same examiner as well. He did ROM testing and did not even use a goniometer. He "eyballed" it and even told me to bend further to which I replied this where the pain begins and I am not bending any further than this.
  21. This is what I am doing as we speak. I am creating a separate folder for every possible Ortho issue I may have. I am putting all the necessary evidence in each folder and highlighting the information necessary for the claim itself. That means I am printing out my IME report 4 times and putting it in 4 separate folders with the pertaining nexus highlighted. I am submitting all the SMR's in relation to the disability and highlighting the diagnosis and part of the body it is in reference to. I am going to give this to the C&P Examiner and make it dummy proof.
  22. All the necessary is already uploaded. Initially I filed a claim and requested a reopen of previously denied claims. I uploaded all of the evidence then. They close all of the reopens because they had to be filed as supplementals. Something I was not aware of. I filed the supplemental claims and faxed in all the necessary evidence...again. So it is listed twice. I can actually view all of the documents in ebenefits. I am going attach a list of the evidence I submitted. I have done this as well. However, I did not trust the VA to actually make any requests so I uploaded all necessary private records as well when I filed my claim. Probably one of the main reasons I got 30% for my asthma. They did not make any requests but the evidence was already there.
  23. Trust me.....I understand all of this completely now. While I will say the VA screwed me over by not doing their job I have to accept some of the responsibility. I should never....ever.....trust anything the VA says to me. I did request a new C&P exam as soon as I saw the DBQ submitted by the C&P examiner. I submitted a memorandum for record on December 9th and faxed it in. I pointed out every error and requested a new exam. I am going to my appointment tomorrow with the expectation that they may decided to throw in a back exam even though according to the VA rep I spoke too said the appointment request was for foot issues. I am creating a separate folder for every single disability that could be examined by Ortho. Not going to take any chances.
  24. I already have a private IME for all of my claimed disabilities that gives a clear nexus. Submitted it when I submitted my claim.
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