JKWilliamsSr

In theory that is how it is supposed to work but we know that is rarely the case. Most of my other claims for the new(secondary)/increase were denied with the very same IME submitted and they gave a Nurse Practitioner full weight and my IME zero weight and it completed by a MD. The truth is I believe the IME I submitted is for the most part being completely ignored. I can say with absolute certainty that the most current C&P examiner did not look at it because he would not have tried to say obesity is the cause of my back issues. I am diagnosed with type 2 diabetes. In my IME my doctor gave me a nexus to service connect my diabetes by using obesity as in intermediate step. He said pain from my musckoletelal issues prevented me from exercising and that led to my being obese which caused my diabetes. I am currently 5'11 tall and weigh 270 and while I accept that is obese this guy makes it seem that my back would not hurt if I was not overweight. The thing about his rationale is that he just can't say my back issues are caused by weight. He would still have to give a valid opinion as to how specifically my weight is caused the back issues. He just can't say your back hurts because you are fat.....lol

Here is my next question. Do I wait for the decision to come down before I file a complaint for a new C&P exam based on the errors that were made or do I call the 800 number and have them put in my record that I received a bad C&P exam and then fax the statement about it? Here is the breakdown on how my exam went. 1. My appointment was at 1 pm and at that time exactly I was called into the PA's office 2. When I sat down the PA asked me to tell him about my back. So I told him pretty much everything that is my statement in support of claim. (I am attaching) 3. The PA then asked me to stand in the middle of the room. He sat in a chair on on side of the room against the wall. 4. He asked me to bend at the waist 3 times. After the first movement he asked me to bend further and I told him I could not because it hurt. He did not take a single measurement. 5. He had me sit on an examining table. He had me push forward with each leg as he provided resistance and did the same thing having me pull back on his hand as he applied resistance. 6. He then had me sit at next to his desk as he copied and pasted a bunch of entries. 7. Appointment was over. I was out of his exam room in less than 10 minutes. 8. at 1314 hrs he uploaded my completed DBQ. Redacted back statement.pdf

All of the disabilites on the record list were filed for. They had to be broken down and to new/increase and supplemental (reopened) claims. The new/increase claims have been completed and I filed an HLR for issues on those because they pretty much screwed that up. I had some issues that had to be filed as supplemental claims because they were denied back in 2009 so I was past the appeal period. The back claim was one of those claims. I have absolutely zero trust in the VA so when I submitted my claims I uploaded all the pertinent SMRs that were related to the disabilities they were claiming. Everything you see on the IME records list was submitted with my claim. The Civilian records I submitted had an xray report that showed degenerative disk disease in my back. Now one can hope a rater will look at the IME report and evidence submitted and realize the C&P examiner did not do everything that was required but I will not hold my breath on that one. My Ex-Wife is doing a statement for me as we speak to dispute the stupidity of claiming my back issues are related to by obesity. Now while I submitted a statement in support of claim myself showing symptomology since service it is clear they did not looked it. We met in 1999 which was 3 years after service. I had all of these issues back then and at that time I weighed 165 lbs. I should have that statement within the next few days.

My IME is positive and dots all the "i's" and crosses all the "t's" Here are statements in my IME Report: "It is my medical opinion, it is more likely than not, that the patients lumbar degenerative disc disease is service connected because of the of symptoms when he was serving in the US Air Force." (there is medical reasoning listed but I am sparing myself typing all that in..lol) The final statement that covers the entire IME is as follows: "My medical opinions are based upon my examination of the veteran, review of records, my education, training and experience and upon reasonable medical probability and reasonable medical certainty> It is my medical opinion that the impairements and disabilities set forth in this report were, more likely than not, due to and a consequence of this veteran's military service." I am also attaching the list of records that were reviewed by Dr. Ellis and was attached to the IME report he submitted. IME records.pdf

I filed a supplemental claim to have my back claim reopened. I did this with new evidence which included an IME from the Ellis Clinic. I had a C&P exam on November 5th and was finally able to view the notes today. The exam was a joke and I knew this going in. My appointment was scheduled for November 5th at 1:00 pm. By 1:14 pm the exam was done with the results and completed DBQ uploaded to the system. So we are expected to believe that a doctor can properly complete a C&P exam, make accurate determinations and fully complete a DBQ in 14 minutes? Do they really think we are that stupid? For lack of a better word this examiner flat out lied on the DBQ. I will paraphrase some of the questions for simplicity. It is funny because I have submitted personal statements that actually contradict the bullshit the examiner wrote. 1. The examiner stated I did not report flare up. Well considering he did not ask me a single question it would be hard to report a flare up. That is why I submitted personal statements. 2. The examiner stated that I did not report any functional loss or functional impairment - This is a complete flat out lie because at the start of the appointment the examiner said to me. "Tell me about your back" and I proceeded to tell him everything I was going through. 3. The examiner stated that my obesity is the cause of my back issues. 4. The examiner stated that I am being examined after repetitive use over time - Another lie. Not sure how he could even make that determination. 5. Examiner stated that I was only seen twice for my back - Another lie. There are 9 active duty visits for my back in my records. Oh......and while he did ROM testing he did not use a goniometer I am completely at a loss for words. This is actually numbing because I did everything I could to make sure they had all the info they needed and a lazy C&P examiner does not do his job. I will be calling the white house hotline today to complain about this. November 2019 C&P exam.pdf

Thanks for catching the typo. You are correct and it should be "Reasons and Bases" It is so sad that as a veteran I had to go through each line of a decision and point out an error. It is a clear indicator that that many raters are completely inept at doing their jobs. Without any training I should not be able to find so many glaring errors but with more than 35% of rating decisions being overturned and almost 40% being remanded back to the VARO to correct errors it is expected

Well my HLR is complete to the best of my ability. I know I am not an attorney and did the best I could to put forth an argument for the errors that were made. I figured before I went ahead and faxed in the form with the errors that were made I would list my document. I hope this works but in any case I think the format could be helpful. Based on the advice I received here I changed how I created it and took a document what was over 40 pages and condensed it to 17. I don't expect people to read it all but a quick review could be helpful. HLR Review.docx

I considered the CUE as well. If they do not give me the correct EED based off of 38 CFR 3.156(c)(1) and 38 CFR 3.156(c)(3) I will hire an attorney to fight the appeal battle. I am looking at an effective date of 2009 and the difference between 70% which is what I should have received at a minimum and the 30% they rated me. Right now the most important thing is to get rated. Hopefully I will not have to fight them but we all know I more than likely will.

Off the top of my head I don't have the case law if SMR's come available and were not used to adjudicate a claim the VA is required to give the effective date of the original file date no matter how many years ago it has been. This is binding by a CAVC decision and you do not have to prove the VA had the records in hand at the time the claim was decided. I will try to find this case law. Edit: I found the Case Law. It is Stowers v. Shinseki - Decided May 2014 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

I had not yet called the WH line but will be doing so today. I wanted to give them until after the holiday to make sure there was some movement of some type. This way it will not seem as though I am constantly bugging them. I wanted clarify something as well. My pending supplemental claims is for claims that are reopened. These were claims that were denied by the VA stating they were not in my records. I got my C-File found the proof that it was in there and requested a reopen. Original denial is from 2009. Since the C&P exam results were uploaded before I walked out of the doctors office I thought that by now it would be in a raters hand.

I am dealing with something similar but it is a supplemental claim. I had my C&P exam on November 5th and the Regional VA Hospital and the results were uploaded that same day. In fact Blue Button shows that the exam results were uploaded at 1:15 pm on that day. My appointment was at 1 pm. Monday I called to checked on the status of my claims since it has been 3 weeks since the exam. The call was because I found it odd that it is taking so long. On my new claim I had results 8 days after the exam and that exam was not at VA hospital but with LHI. So I was surprised there was not a decision yet on my supplemental claim. So I called the 800-827-1000 number and spoke to someone to inquire about it. At first he told me that it is held up because they are waiting on exam results. So I told him that I am having a hard time understanding how that is the case because when I pull my blue button report it shows the results were uploaded the very same day of my appointment. So he guy I spoke to changed his story to saying that they have the results but there is a very high backlog and that is why my claim is still pending. For lack of a better word I am now pissed off because the guy I spoke to lied to me first about waiting for my exam results. Then he gave a crap answer of a backlog. That is one of the biggest crocks I have ever heard. While there is a backlog as of September there was only 66k of pending claims and that was down from 611k in March of this year. So if they can adjudicate 100k claims a month surely the 66k in September (which is when my supplemental claim was filed by the way) is only a drop in the bucket. I maintained my composure and did not call him out on it. I will wait and see if there is some movement by next week. I wlll call the 800 number next week and if I do not like the answer I get I will call the white house line and complain.

The VA by law is supposed to list all of the reasons for the denial. Now they do not have to list each piece of evidence and provide an explanation for each but they still have to state a reason. For example, if they found lay evidence to not be credible have to say it was not credible. If they gave more weight to one piece of evidence over another they have to state so. They probably can just put it in generic terms with the exception of medical evidence. That can only be rejected with medical evidence. The decision letter is required to be able to stand up to CAVC scrutiny. There were two decisions handed down in 2008 that dealt directly with the information that is to be provided in the reasons and bases for decisions. Those were Vasquez-Flores v. Peake and D’Aries v. Peake. I think by citing those decisions in your HLR or Supplemental Appeals you are forcing the raters to provide the required information. This could be huge in determining the outcome of your ratings because when you have plenty of good evidence you are letting the VA know you understand enough of the law to force their hand.

This is excellent advise and I agree with you. What I have learned over the years is that most raters cut and paste old denials and add just a little different information to make it seem like the did their due diligence when they did nothing remotely close. In a most of the denials in my decision letter they made some very glaring errors that most people will not catch because they probably do not verify the info in the letter. In the majority of the claims in my decision letter the rater cited they reviewed and considered 38 CFR 3.304 and 38 CFR 3.306. Those are glaring errors because they do not apply to the disabilities because they are secondary disabilities. 38 CFR 3.304 is for Direct Service Connection Wartime and Peacetime. 38 CFR 3.306 is for Aggravation of Pre-Service Disabilities. As I mentioned most of my new claims are secondary claims and direct service connection does not apply. I did not have a single pre-service disability and my entrance physical confirms that yet the rater applied laws that had nothing to do with my claim. What should have been applied was 38 CFR 3.310 which is for Diabilities that are proximately due to, or aggravated by, service connected disease or injury. I am going to challenge them to prove the properly applied every law they were require to. Now my understanding is the current decision letters should have all the information that would be found in the Statement of Case you received when you filed a NOD under the old system. I have been trying to find some clarification on this but have been unsuccessful.

The exact same thing happened to me. The sad thing about all of this is the evidence I used for direct service connection that was previously denied I got from my C-File. It is a clear indicator that raters only glance at evidence.

Agreed and I am also going to him them with improper reasons and bases explanation in the decision letter. In D’Aries v. Peak the court held that The written statement of reasons and bases of a decision must be adequate to enable a claimant to understand the precise basis for the decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims

It baffles me because this section of the M21-1 is pretty big and you would think that 38 CFR 4.6 would be referenced since it is a matter of law.

Here is something that some may find interesting. I was going over the M21-1 specifically the section that covers evaluating evidence. The relevant section is M21-1, Part III, Subpart iv, Chapter 5 Principles of evaluating evidence and decision making. 38 CFR 4.6 is not listed in the entire section. How in the hell is that not listed in there?

I just did a search of BVA decisions for "Lay Evidence" and almost all the overturned decisions had that very same statement in it. For some reason many raters tend to discount veteran statements.

I understand completely. I think for the most part is all about perspective. Lay Evidence is required to be considered and weighed. If the evidence is listed on the decision letter the presumption of regularity comes into play where is it accepted that the "government officials have properly discharged their official duties" . This is a really gray area that the VA uses to it's advantage. I have seen a large number of BVA decisions handed down concerning lay evidence. In my instance there isn't a single reference to my lay evidence in any of the decisions. However, they listed that I submitted 12 VA Form 21-4138 and the presumption of regularity is going to come into play. This is where I think many veterans run into issues. Now I think the key here is to directly challenge the VA to prove they considered the lay evidence. The Key is citing the correct laws to support this. 38 U.S.C 1154(a) States: The Secretary shall include in the regulations pertaining to service-connection of disabilities (1) additional provisions in effect requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence. 38 CFR 3.159.(a)(2) covers Competent Lay Evidence and Jandreau v. Nicholson is the case law that is cited in the M21-1 covering lay evidence. I also found a couple other cases that mention lay statements the big one being Caluza v. Brown which 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 Kahana v. Shinseki is another precedent setting case that mentioned lay evidence. The court added a note to the decision that goes as follows: “lay testimony is competent … to establish the presence of observable symptomatology and ‘may provide sufficient support for a claim for service connection." Then there is the matter of cases that the rejection of lay evidence must be explained. Without going into a lot of detail I found some precedent setting case law that that mention the rejection must be explained. They are Rowell v. Principi, Colayong v. West, Jones v. Principi, Locklear v. Nicholson, and Quiamco v. Brown. Now I have heard it said that you should not send the VA too much information and overwhelm them with citations of laws because doing so tends to upset raters. Now I could understand that if it was the initial claim but in this instance I have been screwed again and I am not concerned with the feelings of the rater. I want on record everything I think they did wrong. In other words this HLR preparation is probably in reality preparation for the BVA. Edit: I found a BVA case that pretty much covers everything I said in this post. Now I know BVA decisions are not precedent setting but this case seems to be spot on. https://www.va.gov/vetapp19/files8/19161026.txt

I am working on an HLR but felt this particular question deserved it's own thread in case someone wanted to do a search for Lay Evidence. I could not find anything myself. The question is how do we determine lay evidence was not considered? It was pointed out that the VA operates under the presumption of regularity. That basically says the it is presumed that government officials have properly discharged their official duties. So for the sake of argument for disability claims I interpret that to be that regardless of what the decision letter says or does not say it will always be presumed the VA reviewed all the evidence to adjudicate a claim. There appears to be some limitations to the presumption of regularity rule. I am researching that. Not sure what I will find out. Given the obvious assumption that will be in favor of the VA how are we the veteran to determine they did not consider certain evidence? Can we just make that assumption based on no entries in the decision letter. My decision letter does not mention a single piece of lay evidence in any of the decisions. We all know that every piece of evidence is supposed to be weight but how or when do we make the assertation that our lay evidence was ignored?

What I will probably do is have the first page list all the disabilities and what did not happen in short form and attached would be detailed explanation on how they were not properly applied. For example. 1. Left and right knee a. Deluca not applied - Deluca v. Brown b. Mitchell not applied - Mitchell v. Shinseki c. 38 CFR 4.45 not properly applied. 2. Left and Right Hip a. Lay evidence not considered - Jandreau v. Nicholson, Kahana v Shinseki, Caluza v. Brown b. Medical evidence improperly rejected - Shipwash v. Brown

I just went over the decision later again and there is not a single reference to my lay evidence, IME report or the C&P Examiner. This was for a increase and it just basically said it is being continued at 10 percent and that is it. The Following paragraph is talks about how the 4.40, 4.45, Deluca and Mitchell were considered and applied under 38 CFR 4.59 (missed that earlier) it goes on to state what the requirements are for in increase to 20% and that is the end of it. My IME was an actual examination and the IME report also has measurements that were submitted. This is the statement the Dr. made at the end of the IME report: "My medical opinions are based upon my examination of the veteran, review of records, my education, training and experience and upon reasonable medical probability and reasonable medical certainty. It is my medical opinion that the impairments and disabilities set forth in this report were, more likely than not, due to and a consequence of this veterans military service." The IME has attached to it a list of all the records that were reviewed which includes SMR and a Range of motion worksheet with Range of motion values for my back, hips, knees and ankles. I am still in the appeal period. This decision was handed down October 16th. This particular decision can almost show the rater never bother to completely read my evidence. In the IME report Dr. Ellis stated that I was "Diagnosed" with diabetes in December 2018. Now this supported by the medical records that I submitted from my civilian doctor. My primary care doctor diagnosed me with diabetes based put me on medication (metformin) Dr. Ellis was merely confirming the diagnosis and stated his opinion based on the examination of me. To be honest that is logical. In fairness it is not an issue if a claim is adjudicated in favor of a claimant. However, When denials come into play and I am sure this goes without having to say it but the rater is required to follow all applicable laws when it comes to evidence. Which we all know they do not do. Hell, I have a supplemental claim pending for flat feet where the denial stated that there is no record of complaints in my SMR's. I found the SMR's to support the claim. I also submitted a supplemental claim to reopen a back claim where the denial stated that while there are documented back issues while I was in service there are no diagnosis in the record. I found SMR's where there were 5 diagnosis of Lumbar Strain. Guess where I got this info..... My C-File. There were a total of 12 decision made on my most recent claim. The claims were were for Asthma (granted), Right and Left Knee both (limitation of extension and instability - 4 decisions - denied) , Left and Right hip (2 decisions denied), Diabetes (1 decision - Denied), Sinus condition (reopened by VA was not in my claim - 0 to 10% granted), Sciatica ( 2 decisions - Denied - should have been deferred) When I filed my claim the VA reopened my Sinusitis I was rated at 0% but service connected. I have to use prescription nose spray so that is why I got 10%. I did not claim it because I thought it was upper respitory and could not be combined with my asthma. Either way with or without it I would still be at 50%. My sciatica I claimed secondary to my back. They flat denied it because my back was not service connected. My back is pending a supplemental claim because it was denied and 2009 and I was past the appeal period. So that should have been deferred. I had a C&P for my hips and knees. This exam is mention for limitation of extension and the examiner range of motion value are not listed. The examiner notes is not listed for the knee instability either. So I had a knee exam and also submitted an IME that included a knee exam and neither of them are mentioned at all in my knee denials. For the hip denial the examiner not is listed only by saying they are unable to confirm a chronic diagnosis. I uploaded medical records and an X-Ray report showing arthritis in my hips. Gave he C&P examiner a copy of the X-Ray report and the C&P Examiner actually diagnosed me with Degenerative Arthritis in both hips. The IME is only referenced in the diabetes denial and the Sciatica denial which should have been deferred anyway. My lay evidence was not mentioned in any of the decisions. So as you can see there is a lot to cover in my denial because there is a lot the VA did wrong IMO.

I will see what I can do to shorten it but my decision has so many errors it is not even funny. Here are is a small sampling of them. 1. The letter states that 38 CFR 4.40, 4.45, Deluca v. Brown and Mitchell v. Shinseki was considered and applied. That is it. No further explanation. No notes from the examiner. Absolutely nothing about how any of these were applied. 2. My diabetes decision is laughable. There are few reasons in this denial that baffle me. One being the rater stated the IME was based on opinion alone. That was not true but they cannot deny on that this was decided in Colburn v. Nicholson. 3. Another issues in my diabetes denial is part of the denial is based on the fact my Dr did not indicate the probability or possibility of incurrence of your diabetes if my joint issues did not exist (I used obesity as an intermediate step to getting diabetes). So I interpreted this as the rater requiring my doctor to provide medical evidence against my claim. 4. They had all the lay evidence as it is listed on my decision letter. They just simplified it by listing it like this. VA Forme 21-4138 (12) received September 16, 2019. I submitted 15 separate 21-4138's and one of them is an evidence list that breaks down each piece of evidence. I listed each statement and what the statement was for in the evidence list. The did not mention any of my statements once in any of the decisions. They only cited my Medical Evidence twice in the decision. My decision letter is based on 12 disability claims.

I have some questions before I submit my HLR. The document pointing out the errors is so far 38 pages long. Not because there are a ton of errors but that the same errors were repeated. For example they denied an increase for my left knee and right knee under seperate decisions. What I did was listed the left knee decision and pointed out they did not apply Deluca, Mitchell....etc. Then I listed the right knee decision and listed the same things,. I did it that way because I did not want to give them an excuse saying that I did not say I did not point an error out. For example I did not want them to say I pointed Deluca for the left knee and did not do so for the right knee. Also my IME separates each disability. My IME warrants different percentages for the right and left knee so I thought it best to keep them separated. There are some things I am pointing in my HLR and did not know if it would have any value. It deals with the VA being required to state the reasons for explaining the reasons they did not consider or give my lay or medical evidence at all or gave minimal weight. For example I found 9 precedent setting CAVC cases that state the the VA is required to supply a reason for why they rejected lay and/or medical evidence. I included this in my HLR. My thinking it is important to included it because if they decided to deny my HLR it shows them I know the requirements in case they try to not included it in my statement of case. Here is an example of how I know with absolute certainty the did not consider my lay evidence. In my denial for diabetes the rater stated that I did not claim obesity as the reason for my diabetes. That is completely wrong because my VA Form 21-4138 that is submitted my statement clearly states that I using obesity as an intermediate step to my diabetes claim and I even submitted the VA OIG document that states it can be used. That alone tells me they did not read my evidence.

It would be very hard for an examiner to state the condition is not likely to be service connected if the exam was conducted while you were still on active duty. The only way this comes into play is if the condition pre-existed your service and if that is the case the responsibility is on the VA to actually prove the condition was not aggravated by your service.