JKWilliamsSr

I have sinusitus and Asthma and I am service connected for both and they are known issues that can cause sleep apnea which I have and have a CPAP machine. Yet the VA denied me so I hired and attorney and got a second IMO to go with my Dr. Ellis IMO and have appealed to the BVA.

I hired an attorney to handle my appeal based on the fact that the VA has just about ignored every piece of evidence I submitted. I used the Ellis Clinic for an IME and after consulting with my attorney he felt there are some things that Dr. Ellis missed when writing the IME. He stated the IME was very good and fantastic when it comes to the rating I should get but the VA tends to want specific jargon and if they do the search on the document and don't see it (or ignore it) the claim gets denied. I am using this attorney based on the recommendation from fellow vet who used them. He was in the same boat that I am in. He used the Ellis Clinic and while the IME was good it missed certain keywords. They got an IMO and used that with the Ellis Clinic IME to get him 100% P&T. The IMO cost $1895 and covers 5 disabilities. It is important for me to go this route because the VA examiners clearly ignore some factors. They are supposed to help you with your claim but do not. I am service connected for Asthma which can easily be used to connect to Sleep Apnea but the VA will not do it. I have to do it myself.

If you are going to have to go to the VA Court for Veteran Appeals I heard CCK (Chisolm, Chisolm and Kirpatrick) is one of the best at this level.

There is no chance in hell that I am giving up. This is all about VA incompetence so I am going to hire an attorney and go directly to the BVA. I have never had an adequate C&P exam done by a VA examiner. They were all very short and IMO do not follow all the required rules. You should see my DBQ's....they are a complete joke. I have had two C&P exams done LHI(outside the VA) and while they go through all the steps in the exam I think they are just denial factories. I have not seen those DBQ's because they are not uploaded like VA examiners but I am sure they are a joke. Case in point it was an LHI examiner that said that a paraplegic can exercise and maintain a proper BMI so I should be able to as well. This examiner also said my inability to exercise was a choice I made not because of my service connected disabilities. These statements were in my decision letter. That is a clear indicator that they ignored all my evidence which included my personal statements. I discussed what exercises I tried and why I could not continue. I mentioned the diets I tried that did not work. My decision is to go the BVA route because the BVA often throws out the bullshit reasons the VA's examiners give. I have seen many BVA decisions where the judge did not consider the VA examiners opinion because they did not take into account all the evidence as required. This is why if you go to the BVA with your own medical opinion that provides a nexus you will win because for one a private IMO seems to be more thorough and veteran friendly (what VA examinations are supposed to be) and it dots all the "i's" and crosses all the "t's". The VA examiner does nothing but cut and paste because they are lazy.

I can assure you that I did all of this and then some. My claim was idiot proof but my problem was the idiot king was the rater. It is impossible to have a claim approved if the people do not even look at the evidence submitted.

I knew Obesity could not be claimed as a disability and I spelled it out for the rater but they chose to ignore anything I submitted. My contention was that due to my service connected disabilities I was unable to exercise that led to my weight gain. I was claiming my obesity as an intermediate step to other disabilities. I even submitted the VAOPGCPREC1-2017 document that spell this out. In all of my decision letters my none of my favorable evidence is mentioned. So I am going to go straight to the BVA and stop messing with this nonsense.

I keep shaking my head on this one. It is clear that the rater only looked for reasons to deny my claim. I have 4 decisions letters from October 2019 to May 2020. They are for my normal claim through ebenefits. A supplemental claim for previously denied claims and an HLR that was filed based on the denial from the October 2019 letter. In all of the decisions letters the rater does not mention a single piece of favorable evidence that I submitted. I am reaching out to an attorney as we speak. The reason is for I believe I am going to be owed back pay from a 2002 and 2009 claims where the VA denied claims without C&P exams claiming that there is no mention of the disabilities in my SMR's. I got my C-File in 2018 and found out that is not true. They disabilities were in my SMR's and there is a date stamp on my medical records when they were received by the VA which is proof they had them then entire time. I am looking at almost $250k in back pay.

Yes I did. From a board certified MD and they a Nurse Practioner more weight.

Just when I thought I heard it all I get my final denial letter and It is so stupid I find it funny. It is just further proof that raters will look for anything to deny a veteran. In this instance I attempted to tie my obesity to my service connected disabilities which led to other issues. Here are my ratings (for now) 10% left knee (increase denied will appeal) 10% right knee (increase denied will appeal) 10% Bilateral Pes Planus (will appeal I should be at a minimum 50% they did not adjudicate my Plantar Fasciitis either) 30% Asthma My contention is that as my disabilities got worse my activity lessened. I can't even walk without pain let alone exercise and that led to my beginning to gain weight. So the rater that took my claim made the following statements. "The examiner further stated that your service connected condition does not preclude all forms of exercise. For example paraplegics exercise and maintain appropriate Body Mass Index (BMI) "Obesity is most commonly caused by a combination of excessive food intake, lack of physical activity, which is a choice" First of all comparing my situation to a paraplegic is irresponsible and to be honest just flat stupid. A paraplegic gets no muscle stimulation in their legs and sadly they lose muscle mass and their legs are nothing but skin and bones. Their exercise is limited to upper body exercise and it is easy to maintain that the active muscles in your body are minimal. The fact that the examiner and rater state that my excessive food intake and lack of physical activity is a choice I made shows they ignored my statements. In my personal statement, a statement from my spouse and ex-spouse we all stated the pain I am in when I try to exercise and we also all stated the numerous diets that we tried and was unsuccessful in my losing weight. Then you have to take into account I have asthma and I have to take medication daily to control it. My asthma is service connected as well. I have a lot of shortness of breath when I exercise. What a complete joke.

One of the powerful things about this decision is that it forces the VA to verify credibility. While the presumption of regularity was not completely removed it still forced the VA to say why they found the examiner credible. To add to that if you submit your own medical evidence it will make it harder for them to ignore your evidence. Most C&P examiners are NP's or PA's

I honestly believe the supplemental claim lane is meant the screw veterans over. In the past you were able to reopen previously denied claims if you had additional evidence and could start it off with an intent to file. Now you can no longer do that. In order to reopen a claim that was previously denied you would have to file a supplemental claim if you were not in the appeal period. Now with that said your comments make sense and I believe you are correct with the supplemental claim being the next step in the appeal process if your HLR was denied. Since he filed it after the denial date then it should still be an actual appeal.

If I am reading this correctly you had your final denial in July 2019. The question is if you appealed that decision or not because that is going to be key here. If you did not appeal that decision but instead filed a new supplemental claim they effective date is going to be the date the supplemental claim was filed.

UPDATE: So there is more confusion for my claim I guess. My HLR was closed last week and since there was has not been any updates my rating in Ebenefits my assumption is everything was denied. Everything listed that I do not have a rating for states it is "Not Service Connected". So I am sure you can imagine my surprise when I got notified today via email and text message that I have an appointment next week for a C&P exam with LHI for my diabetes claim. I double checked ebenefits and the claim shows as not service connected and not deferred and on top of that the HLR was closed. EDIT: Just checked the VA website and my HLR moved back to the pending stage. It stated that "Veterans Benefits Administration is correcting an error". Which is probably why I received a C&P exam.

That is the thing. They did send me a letter but I already realized my mistake and had my supplemental claim filed. When I saw that they did not add a good number of the claims for reopening I found out that supplemental claims could only be mailed in or faxed. So what I did was took the missing disabilities and filed them as supplemental. The thing is I believe that they still did some of the things incorrectly. Now some of my new claims were secondary claims to previous denied disabilities. So instead of removing them they should have deferred them until my supplemental claim was complete and then they should have adjudicated the other claims. For example....I claimed sciatica secondary to my low back but of course that could not have been adjudicated until my back claim came back. So it should just been deferred but instead they completely removed it so I wound up including it in my supplemental claim. I don't trust them either and my mistrust is actually well founded. When doing my research on how to challenge a C&P exam I found info that said you should call and report the bad exam but you would also need to do it in writing. So I called the 800 number and discussed my concerns with the exam. I was told on the call that it would be sent up and someone would reach out to me in a few weeks. I never believed that. I had every intention of sending in a memorandum about the bad exam and I did so a couple days after the call. When I called a month later to follow up about my claims the person I talked to said there was nothing listed about my C&P exam complaints. The did see that a fax was sent in because the cover sheet was titled "Bad C&P exam" It is all moot now because I checked today and my HLR was closed as of yesterday. I checked Ebenefits and there was no increase in my rating so I am sure it is safe to assume to my HLR was denied. I am going to attach it here so people can see what I sent. Now the HLR is long and that is intentional because I am of the opinion anything sent to the VA for a claim should be done as if it was being sent to the BVA. I reached out to CCK and they responded and asked me to call to do an intake on my claims. I did some research and I know they do a lot of BVA appeals. I do remember a time where you could only hire an attorney for CAVC appeals but that changed in 2007 so now you can hire an attorney during any part of the process. I had reached out in the past and I know most will not consider your case until after you have been denied for benefits and have a letter. It just makes no sense for an attorney to take a case if there isn't any way for them to make money. For me an attorney is important because I am looking a substantial amount of back pay. When I finally got my C-File I realize the VA pretty much screwed me royally. In 2002 I filed a claim in part for my feet, knees and back. Circumstances prevented me from making my appointment and the VA would not allow me to reschedule. Even went so far as to tell me that if I did not show for the appointment I would not be eligible for any benefits and can't apply again. I have a witness to this call and statement supporting it. What I did not know at the time was that I was only scheduled an appointment for my knees. They never schedule an appointment for my feet and back. They said it was not a "well grounded" claim. I would learn in 2009 by talking to a friend that what I was told about not being eligible was inaccurate and he encouraged me to file again. This led to my 2009 claim. This claim led to my getting 30% (10% left knee, 10% right knee and 10% Bronchitis). Now keep in mind I was now given service connection for the disabilities I missed the appointment for in 2002. There was no mention of my feet and back on the decision letter. I filed a NOD for this claim and they addressed the feet and back claims in the Statement of Case. They stated there was no complaints in service for my feet and for my back while I was seen for some issues there were no actual diagnosis. In 2018 I got a copy of my medical records from the VA. In these records my entrance physical show normal feet. There is complaints of foot issues where I have X-Rays showing flat feet and also a diagnosis for Plantar Fasciitis. My Exit Physical has a diagnosis of Moderate Pes Planus. I found a number of back visits and 2 of them have a diagnosis of a Lumbar Strain. So I filed an ITF in December and then made a request for my C-File. In April 2019 I got a copy of my C-File and in it I have proof that the VA never schedule any appointments for my feet and back claims. When I filed my supplemental claim to reopen I cited 38 CFR 3.156 (c) (1). Now when I did my claim I did not mention anything about EED because my mindset was to get service connection first with a rating and then file for an EED citing 38 CFR 3.156 (c)(3) and/or 38 CFR 3.156 (c) (4) not sure which one would apply but I have heard many people say that the best way to fight the EED battle is to hire an attorney. Considering the VA stated I never had these issues back in 2002 we could be looking at a substantial amount of back pay. I believe that I should have at a minimum been given 60% back then (50% for Feet and 20% for back) we are looking more than $200k in back pay. Even if they lowballed me and gave me 30% for feet and 20% for back (44% rounding to 40%) we are still looking at $170K and to be honest all those numbers can go up or down by a good bit in any direction. However in the end any backpay from that many years would be a good amount. HLR - No Personal Info.docx

Does anyone know if you can hire an attorney to take over your pending Higher Level Review? Here is my situation. My supplemental claim is complete (2/27) and I just got my letter for that. I want to hire an attorney to handle that for me. I also have pending Higher Level Review from my earlier decision (October 16th) I was wondering if I get an attorney to appeal my supplemental claim can I also get them to take on my HLR of should I wait for the HLR to be completed?

It appears that they only adjudicated claims that were previously denied and that does not make any sense. Initially I filed everything under Ebenefits including all the reopens. When the site updated the left a bunch of my claims off and that was when I realized that they had to be filed as a supplemental because of the new AMA rules. So what I did was took all the claims that they removed from the Ebenefits claim and filed them under the supplemental claim. In any case they can't ignore the claim. They have to adjudicate it in some way even if it is a flat denial. The first thing I did was called the 800 number and complained there. They "supposedly" were going to forward it but of course I don't trust the VA so I followed that up with a memorandum. As far as I know there isn't a form to challenge a C&P exam.

Based on the letter it is clear that they did not review all the evidence. They did not even list the evidence I submitted for the supplemental claim. This could work to my advantage though because I have an IME that provides a nexus for disabilities. I have seen a number of decision where the C&P examiner did not review favorable evidence to the veteran before they made their opinions on the DBQ. For this reason the BVA just stated that C&P examiners opinion will not be considered for the opinion and base on the other favorable evidence they award service connection to the veteran. That is the thing that baffles me the most. I did not file a claim for "Back Condition" the VA just gave my claim that generic term. I was specific to what I was actually claiming base on my IME. I claimed the following exactly as you see it here: Lumbosacral Strain Degenerative Disc Arthritis of the Lumbar Spine Intravertebral Disc Syndrome of the Lumbar Spine Lumbar Radiculopathy with Right Sided Sciatica Lumbar Radiculopathy with Left Sided Sciatica Nope. I did not get a single reply. No call or anything concerning it. I do know the VA received it though. I have the fax confirmation and I also called the 800 number to confirm they had it.

UPDATE: I received my letter from my Supplemental Claim. I am attaching it to this post. It is clear that whoever adjudicated my claim had absolutely zero intention of doing any work. They just did the bare minimum and figured it can be handled in the appeal. It is clear by the fact that they letter has the bare minimum requirements necessary for decisions. They did not even list all of the evidence I submitted. You can go here to see the post where I listed all the evidence I submitted for my claim. https://community.hadit.com/topic/77619-pending-hlr-pending-supp-claim-closed-supp-claim-should-i-call-or-file-iris/page/2/#comments Now on to the decision itself: Service Connection for Bilateral Flat Foot: When I filed my claim I specifically filed for Bilateral Pes Planus and Bilateral Plantar Fasciitis. SMR’s were submitted that show the diagnosis in service. The IME I submitted provided nexus and I also submitted records from my current podiatrist with current treatments which include Cortisone shots for my Plantar Fasciitis. They completely ignored the Plantar Fasciitis. On top of that the exam that was given was inadequate. The examiner stated things that I never said. The decision was made before I could view the DBQ so I have not yet had the chance to challenge the exam. Service Connection for Back Condition: This decision is laughable but not unexpected. When I was last denied in 2009 the denial stated that while I had issues with my back during service there were no actual diagnosis. So when I reopened my claim I submitted the SMR’s that had the diagnosis that was clearly missed. Yet somehow they missed it again. When I filed my claim I specifically filed for Lumbosacral Strain, Degenerative Disk Arthritis of the Lumbar Spine and Intravertal Disk Syndrome of the Lumbar Spine. This was the diagnosis and recommended ratings in my IME. While I understand that raters are not obligated to accept the suggestions they are still required to adjudicate the disabilities I claim. On top of that I submitted private medical records with supporting xray evidence. They just said “back condition”. The C&P exam was a joke and a complete travesty. My appointment was at 1pm on Nov 5th. A couple minutes after 1pm I was called in by the examiner. The examiner did a full Back C&P exam, completed the DBQ and opinion and had it uploaded into the system at 1:14pm. All of that was completed in a little over 10 minutes. I was able to see the C&P exam on December 5th and saw just how bad it was. The examiner stated things I never said, Stated he performed parts of the exam he never did. I challenged this C&P exam and faxed it in Dec 9th 2019 and have confirmation of delivery. So it was in the record at least 2 months before the decision was made and it was never even addressed. Left and Right Ankle Pain: My IME is for direct service connection and that could be an issue because I was not seen in service even though I had many ankle twists and sprains but back then we just taped it up. I think it could also be secondary to my foot issues so I am going to see if I can get my podiatrist to write me a nexus letter for that. Service Connection for Sleep Apnea: This is also something that my IME is for direct service connection but my own statements of snoring in service may not be enough. I am working on getting my 1st wife to write a statement to say that I snored often and loudly in service so I can probably re-open with that. However, I am also service connected for Asthma (30%) and I have seen people say that Sleep Apnea can be service connected secondary to Asthma. So I am going to research that but if the case it is something the rater should have considered but we all know they never do. I did not get a C&P exam for my sleep apnea. There were a number of claims that were not addressed in my letter. I filed claims (secondary claims) for Lumbar Radiculopathy with Sciatica (both sides), Right and left Hip Arthritis (secondary to knees, feet and back), My assumption that since they continued the denial for my back they did not bother to make a decision on those. Feb 2020 Decision Letter.pdf

If you have separate ratings for your shoulders than the bi-lateral factor is coming into play and that could take you past the 95% threshold

UPDATE: I log in to check the status of my HLR and noticed some changes were made. This is the second time that I noticed changes to my HLR. Initially my HLR was for Limitation of Extension (both knees) Instability (both knees), Hip Arthritis (both hips) and Diabetes. They took my hip claims and attached it to my then pending Supplemental Claim. Why? I have no idea. Well today I logged in and I noticed they added Bursitis to my HLR and that makes no sense to me. When I filed my claims (Increase, new and supplementals) I submitted an IME from the Ellis Clinic. The IME was very thorough and what made it so good IMO is that Dr. Ellis made recommendations with ratings codes and what he felt my percentages would be. When I filed my claims I made sure I filed for the exact thing Dr. Ellis recommended. For example he diagnosed Lumbar Radiculopathy with Right-Sided Sciatica and he put the rating code of 8520 and recommended 40%. So when I filed my claim I filed for Lumbar Radiculopathy with Right-Sided Sciatic but I did not put the rating code and percentage. If they read my evidence they would see the recommendation. So I followed this pattern for every claim I made. I filed for the diagnosis that Dr. Ellis gave me. So today when I logged in I see that the VA has added Bursitis twice. I am going to assume that it is for both the right knee and left knee. This is confusing to me because I have never been diagnosed with Bursitis. Now my civilian Dr. has diagnosed me with Osteoarthritis in both knees. My SMR's have Chrondomalacia Patella as diagnosis and my current rating for each knee is 10% for Left Degenerative Joint Disease associated with Chrondomalacia Patella. I am going to assume the rating code for this is 5024 as this rating was continued from my 2009 claim. Anyone have any insight on what could be going on here?

on my last 2 claims Ebenefits updated before va.gov

Even with a good IMO/IME the rater will still ignore the evidence you submit. This is something I am repeatedly learning. For lack of a better word and I hate to say things like this but I think they are just lazy. There could be an argument that they are short staffed and undermanned and when you add that to the pressure of needing to quickly complete claims things could be missed. The problem here is that the errors should be made in favor of the veteran and not against. My claims have an IME that was for every disability that was claimed. My recent Supplemental claims was closed this weekend and I was only awarded 10% for Bilateral Pes Planus. There were 10 claims on this supplemental including "Bilateral Pes Planus with Plantar Fasciitis" which was diagnosed in service. They gave me Pes Planus and completely ignored the Plantar Fasciitis and on top of that I submitted Private Medical Records showing cortisone shots for treatment of my Plantar Fasciitis. So a clear error was they did not adjudicate the Plantar Fasciitis.....that is just one of many I am sure. My C&P exam for feet was bad and they completed the supplemental claim before I could challenge the exam. I think this was intentional because early on they gave me a C&P exam for my back and 30 days later I was able to review the results. The examiner did everything wrong and made things up that I never said. This is contradicted by the lay statements I submitted when I filed my claim so it is proof that the examiner never reviewed it. Hell he did not even use a goniometer. Well I challenged this exam submitting a memorandum to the VA and it was completely ignore. Nothing was done about it. It will come to bite them in the ass because it was a matter of record and no matter what they still have to account for it. I am going the BVA route and I am hiring an attorney. While I think my claim is a slam dunk I learned there is no such thing with the VA and I am going to have a qualified seasoned veteran take care of this for me even if I have to overpay. Getting 70% to 80% of something is better than 100% of nothing.

Yeah I have been doing research on lawyers. I am leaning towards Hill and Ponton. While I know they charge more from my research they are very, very good at what they do. My second choice is Chisolm, Chisolm and Kilpatrick

I am still on the fence if I should hire an attorney or appeal to the BVA Pro Se. When I do file I am going to go for a direct decision because I do not think I will need a hearing. To be honest I felt my claim should have been a slam dunk. Most of the item I submitted an IME for things that were already in my SMR's. It was more for confirmation that my issues are still continuing but service connection should have easily been a given. As far as case law and the 38 CFR goes I have done a ton of research on a couple of projects and have a very good working knowledge where the raters made their mistakes. For lack of better word it is possible they were just lazy because I did submit a lot of evidence with my claims and most of it was ignored. Some things that may have me lean toward hiring an attorney. 1. I intend on challenging the qualifications of the C&P Examiners. I have had 3 C&P exams for my recent claims, one was from an LHI Contractor who was a Nurse Practitioner and two were completed by the same VA C&P Examiner who was a Physician Assistant (PA). Doing this will force the VA to explain why they chose to accept the report from their examiners as opposed to my independent examiner. My IME was completed by an actual MD who is a Fellow on the American Board of Disability Analysts. He is Board Certified in Family Medicine and Environmental Medicine. In my opinion his Curriculum Vitae is beyond reproach. 2. The other issue is for an EED for both my feet and back. I originally filed my claims back in 2002 for my feet and back and they were both denied without an exam being scheduled. The reason back then was it was not a well grounded claim. They sent me letters requesting evidence to support my claim but I had nothing to send. At the time I had no idea they were not going over my SMR. So fast forward to 2009 when I file again and was again denied without an exam. This time in the denial they say it was because they stated for my feet there were no record of complaints in my SMR. For my back they said because even though there were complaints of issues in service there are no diagnosis. Fast forward to 2018 and I get a copy of my C-File and find all the ignore evidence that was actually in my SMR. So I submitted supplemental claims based on 38 CFR 3.156 (c) (1) to have it reopened and submitted the "missing" SMR's. I am going to request retroactive pay based on 38 CFR 3.156 (c)(4). The beauty behind this is that I will not have to prove the VA had the records the entire time thanks to the recent decision of Stowers v. Shinseki (2014)

UPDATE: There is movement on my claims but I would say more bad news than good. My overall rating jumped from 50% to 60% today. I guess every little bit counts but the reason for this is laughable I got a bilateral rating of 10% for my flat feet. On the one hand that is somewhat good new because my feet are now service connected. So getting an increase because of how ridiculous the DBQ is should be easy. It just sucks that in order to get the proper rating I have to file an appeal because a C&P is too lazy to do his job properly. Key points of he DBQ: a. Describe the history (including onset and course) of the Veteran's foot: DAILY PAIN IN THE AM THAT GETS WORSE DURING THE DAY. MAINLY ARCH. NO SURGERY. TRIED INCERTS THAT DIDN.T HELP. HAS HAD STEROID SHOTS. NO MEDICATION (this is copied and pasted exactly from my DBQ. He typed it in all caps....even mispelled inserts.) The problem with that assessment is that I never said that. If you go to page 9 on this thread you can see what I said. I told the examiner that he 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. b. The DBQ asked if I reported if flare up impact the function of the foot. The examiner stated I said no. The examiner never asked me about flare ups. This was never discussed. This is also contradicted by the lay statement I submitted when I filed my claim that states that at the end of each day the pain in my feet is a 10 out of a scale of 1-10. A clear sign that the examiner did not review my file. c. The DBQ asks Does the Veteran have any foot injuries or other foot conditions not already described? - The examiner stated no When I filed my claim I filed it as Bilateral Pes Planus with Plantar Fasciitis. My services records that I also submitted with the claim shows that I have diagnosis of Pes Planus and Plantar Fasciitis. The private records I submitted show that I still have issues with Plantar Fasciitis. Another clear sign that the examiner did not review my file. That is just some of the things wrong with this DBQ. Then there is the issue with my IME report being completely ignored. It is possible some of my other claims could be approved because my supplemental claim is not yet closed so we shall see. I have not decided that when I finally do appeal if I go with an HLR or an appeal straight to the BVA. That depends on what happens with my current HLR. On this HLR I cited a lot of applicable laws and precedent cases. If it comes back denied I will not waist time with an HLR when I appeal my supplemental claim.