JKWilliamsSr

You are absolutely correct. The VA is not allowed to send you for a C&P with the purpose of obtaining negative evidence or to rebutt positive evidence that is in your favor. With that said if a C&P exam was never completed they could ask for one to be done for the purpose of getting a DBQ completed.

My question is simple (I hope). Would a pain journal carry significant weight in support of a claim? As I have posted this before I am in the process of reopening a claim where the rater said things were not in my medical records and they were. I am working on getting lay statements from my current wife and my ex wife (we have a son together and are on good friendly terms and is also a nurse) this will cover more than 20 years of documented symptomology. My pain is daily without any real break once the flare ups begin. With the exception of my lower back. My pain there is 24 ours a day upon any manipulation. Pain medication does not touch my back at all and only limits the pain in my other areas. I have daily foot, ankle, knee, hip and back pain. I have heard of others keeping journals and I though about doing the same thing and upload it to support my claim. I could just give it to the examiner but I honestly do not trust VA C&P examiners but here is my plan. I want to complete a 30 day journal detailing the issues I have with pain and the severity if it as the day progresses. Once completed I will upload it in support of my claim. I will also do another 7 day journal that leads up to my C&P appointments making day 7 the day before my appointment. This I will give to the examiner (if they will take it) but I will also upload it as well. Thoughts please..TIA

Almost all of these bad decisions are overturned at the BVA level. The problem is that the VA does not fix the problem at the rater level. Bad raters and examiners keep their jobs and it does not matter how many bad decisions they make. In most companies an employee would be fired if they performed like many of these raters./

I have done an intent to file but have not submitted it yet because I am still gathering info. So my next question is this. Should I cancel that intent to file and start a new one? My current intent to file was started last month.

I am assuming any claims submitted ebenefits will still be ok?

1. Entrance Physical has feet as normal 2. Active Duty Podiatrist diagnoses flat feet 3. Separation Physical documents flat feet That is a favorable Nexus and all you need.

You only need to have it in your service medical records in order for it to be service connected. There does not be an individual event for this. The only requirement is to have it document. You do not need to be seen a number of times. It only needs to be listed in your records once. Your issue is almost the same as mine and truth is you are dealing with a moronic C&P examiner and you are going to have to fight this through the appeal process. Case Law is clear on how contradicting opinions are to be applied. Under the benefit-of-the-doubt doctrine, where evidence of record is in relative equipoise with regard to a material issue, that issue will be resolved in favor of the claimant. Shoemaker v. Derwinski, 3 Vet.App. 248 (1992). BVA erred in failing to address the benefit-of-the-doubt rule, which requires only that the evidence be in relative equipoise for the veteran to prevail, given significant evidence presented by the veteran in support of claim for service connection. Goodsell v. Brown, 5 Vet.App. 36 (1993). According to the benefit-of-the-doubt rule, claimant need have only approximate balance of positive and negative evidence in order to prevail. Cohen v. Brown, 10 Vet.App. 128 (1997); 38 U.S.C.A. § 5107(b). You have diagnosis while on Active Duty. You have a C&P examiner that gives a contradictory diagnosis. You also have a civilian doctor that you currently see that also confirms your active duty diagnosis. Neither of them state that your diagnosis was congenital and was acquired since birth. The thing here is that your entrance physical said your feet was normal and your exit says you have flat feet. To deny you benefits that VA examiner is required by law to prove otherwise and it is only acceptable if it was CUE.

Very valid points. One of the big issues here is that raters follow their own rules and there is not set continuity on what is to be followed. There is the M21 that does pretty much spell it out but each rater obviously interprets it differently. Raters are not held accountable for their mistakes. There are hundreds if not thousands of BVA reversals where it is stated that the rater ignored evidence and diagnosis from other doctors and relied only on VA C&P examiners and they are not allowed to do that.

I did not realize the Houston office did your claim. I am in Houston as well and I have the same issue. It is laughable to be honest. In my denial they stated there was no complaints about the disability in my records and I have notes in my records from a base podiatrist that says Plantar Fasciitis and Flat Feet with an X-Ray confirming flat feet with Moderate Pes Planus listed on my exit physical.

I thought that was the case and it sucks that you have to fight to get a benefit that should be rubber stamped based on the information that is your records. The fact that the rater took the diagnosis over a Physician Assistant, a person that can only practice under supervision of licensed doctor over that of a Podiatrist who is a specialist in the field for which you are requesting a disability is a true miscarriage of justice.

The VA will never be able to overcome the fact that your entrance exam shows that your feet were normal. The only way they can do that is to show that it was a clear an unmistakable error. You can also argue that the PA is unqualified to make the diagnoses that your flat feet was congenital. I am trying to recall if this was mentioned before but you have seen your own podiatrist correct?

Doc25 was the person that did the exam and DBQ a Podiatrist?

If the disabilities they are combining Meniere's Disease with are not service connected then I will have to say that it is not a good thing. I think they are going to try and say that Meniere's Disease and Tinnitus are the same thing. I googled the disease and this is what I found: https://www.healthyhearing.com/help/tinnitus/menieres-disease - This site says they are the same thing but....these two sites state that Tinnitus is a symptom that can be a part of Meniere's Disease but does not make a note of them being the same https://www.webmd.com/brain/what-is-meniere-disease#1 https://www.mayoclinic.org/diseases-conditions/menieres-disease/symptoms-causes/syc-20374910 It appears the VA has Meniere's Disease separate to Tinnitus but I guess it all depends on who does the exam and who is rating. Here is link to a thread here on Hadit that discussed the two

This clears it up perfectly for me..... and I know you don't make stuff up and I think the VA makes stuff up all the time to find a way to deny or limit compensation. For the most part I agreed with everything you previously told me but as go forward I find little minor things I try to get clarification on to make sure I leave no stone unturned. I found another thing possibly wrong when looking at my file. I have separate 10% ratings for each knee and both have the exact same diagnosis but I was not given the bilateral knee rating if I am understanding things would have taking that up to 30% and would have given me an overall 40%. Probably not a CUE and I am sure I will not file for it but when I do file for an increase for my knee I am going to ask that.

You guys are probably right. Makes perfect sense but as I go through the regulations and then look at some of these decisions I wonder that the (bleep) is going through some of these raters minds. It is as if you need to spell out every single detail because they are too dense to follow their own regulations. Some of the decisions by some of these raters are so bad I wonder how they even got their jobs.

I saw it from this thread I guess a lot may have to do with interpretation so I guess we may have to see what happens when the rule goes into affect. I am not sure of the VA can make new rules concerning the effective date of a claim since there is specific case law pertaining to effective dates. However, I will have to concede that your attorney will definitely know more than I would on this matter. I am truly a novice when it comes to this.

I am going to go back and see if I can find the post where I saw the information. If I am remembering correctly I think it stated that back pay is limited to 1 year if you opt to use the RAMP and it is granted.

Everything I have read so far tells me that everyone should get as far away from the RAMP process as they can. It is nothing more than quick denial and if the new rules are correct it screws you over on back pay.

Back in 2009 I filed a claim for foot and ankle disabilities. I am working on having those claims reopened citing 35 CFR 3.156 but am waiting for my C-File before I submit it. I want to make sure I take a good look at everything before I do. I was looking at some case law concerning secondary service connection disabilities and that is what led to my question. Are we required to designate a disability as secondary when we file our claim? Nothing I see actually specifies this as a requirement but I can't find anything that say you do not have to make claim that way either. When I filed I claimed foot and ankle disabilities. My foot issues of Pes Planus and Plantar Fasciitis are clearly documented in my medical records. There are no issues in my SMR's pertaining to ankle issues. When I made my initial claim I had no clue as to the distinction from service connection and secondary service connection. They denied my foot issues saying it was not in my records. I have proof contrary to that hence the reopen. They denied the ankle issues for the same reasons and that is accurate because I was not seen for any ankle issues while on active duty but I am experiencing serious issues due to my flat feet and that is why I made the claim. I can see the justification for the denial for the ankle because of nothing showing connection. Broncovet did address this in part in another thread dealing with my entire claim and here is what he said about it: "Its a little different if seeking secondary conditions, however. You need not concern yourself with an in service event, because that will already be documented with the primary condtion. Dont, however, close the door and insist its primary or secondary..again let the VA rater do their job and decide whether its primary or secondary. Ask for both to ocver your bases, if there is ANY doubt." What Broncvet said made perfect sense but in my case a service connected disability that could be tied to my ankle issues is yet to be awarded. Everything I have researched whether it was on case law or BVA decisions actually mention a veterans claim for secondary conditions and that is why I have the question of it being required or not. I believe on e-benefits you given the option to choose secondary but I don't think that option was given when I originally filed more than 10 years ago. I am going to be honest here. Most of my questions are gearing towards making sure I have all my ducks in a row for when I file my appeal. I am not confident in any VA rater going in my favor unless they absolutely have to.

LODI since the information may not be in your SMR's your best bet is to go with Lay/Buddy statements. Any letters you can get where people can attest to your symptoms while in service will help in a big way. I think this is a tool that many veterans are not aware of how powerful these statements are. Now I have seen that raters often ignore these statements and do not find them credible but case law does not allow them to do that. If they are going to make the assertion that lay statements are not viable they have to prove it with something of substance. A rater cannot just use their opinion here. Keep in mind and this is critical IMO..... Lay statement are to be used to state they saw symptomology and should not be used to state an opinion of diagnosis. For example the statement could say that they noticed that when you would bend your knee you were in obvious pain or something like after physical activity they noticed your knee was swollen and you would have to ice it down. They should not say something like when you bent your knee you were in pain and it showed you had arthritis. Here is some case law on lay statements: Lay persons are not competent to opine as to medical etiology or render medical opinions; however, lay testimony is competent to establish the presence of observable symptomatology associated with an injury or illness and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet.App. 303 (2007).

Ok....I think I have it all now. I think you explained it well enough I just misunderstood some things. Based on all the information once your claim is finalized you should get necessary rating and you should get backpay from 2008 and if I did the math correctly Sleep Apnea should take you up to 80% (rounded up because the total I came up with was 78%)

I will have to say that your case is baffling to me. You have sleep apnea in your SMR's and are being treated for it by the VA and that claim is still deferred. I can't make sense of it.

They have not yet denied you on Sleep Apnea. I am baffled as to why it is deferred if it is in your SMR's. Has this been deferred since 2008? or is it part of your new claims?

That information can be used in an appeal for failure to assist. If the VA doctor will not do a DBQ they are still required to assist you in filing your claim which IMO would be a sleep study. It is already in your SMR's so all you need is a current diagnosis.

You should received a letter for the denials even if you have deferrals