JKWilliamsSr

I had a C&P exam for Lumbosacral Strain. I think I may have been in an out in less than 5 minutes. Here is how the appointment went in order. 1. I go in the doctors office and he says to me "tell me about your back" 2. I explain the issues about my back and how my recent flare up lasted almost three months. It was so bad that my wife had to assist me with getting dressed and that I could not even put on my own sock or tie my shoes. I tell the doctor I cannot recall the last time I had a day without any back pain. 3. He has me stand up and bend over from the waist three times. He does not like how far I bent and asks me to bend more and I tell him it hurts to do so. He did not take a measurement with a goniometer 4. He has me lean three times too the right side and three times from the left side. 6. He has me rotate 3 times 7. He copies and pastes a few things on his computer. I could not see what it was but I can say this much he barely typed any words. 8. End of appointment. My appointment was at 1:00 I was back in my car at 1:15. I looked at the clock. This was at the Houston Regional VA Office.

As I go over this ridiculous decision letter there is one think I hope some can help with. I am truly trying to understand the logic the rater gave when denying diabetes. The rater pointed out a couple things and I wonder if they just threw them in there because it makes no sense to me. 1. The rater stated " It also appears Dr. Ellis opinion was based on your history alone as that is the only source he noted in rendering his medical opinion regarding your diabetes". This is in violation of Coburn v. Nicholson which states "a medical report/opinion cannot be rejected solely because it was based upon the veteran’s history without providing reason and bases as to the credibility of the statements" It also makes no sense to me because the VA regularly will make a decisions via ACE exams which is only a review of the records if I am not mistaken. 2. The rater stated "Dr. Ellis also did not indicate the possibility or probability of incurrence of your diabetes if these joint conditions did not exist." . Now I may be mistaken but I think this puts an undo burden on the veteran. I have never heard of an instance where a veterans representative was required to provide additional theories on what may have caused a disability. It is as if the rater is stating that I am also required to provide info that could very well go against my claim. I think this is in violation of Gilbert v. Derwinski which states "Veteran need only demonstrate that there is approximate balance of positive and negative evidence in order to prevail on claim for benefits; entitlement need not be established beyond reasonable doubt, by clear and convincing evidence, or by fair preponderance of evidence."

I appreciate the info. Now reading the letter the VA stated that they applied Deluca and Mitchell but I do not think they properly applied them. I think they just threw that in there I had a C&P with LHI and was examined by a nurse practitioner. The NP did ROM testing but the results are not listed anywhere in my letter and that is baffling to me. She was training another NP and explained the reasons why certain measurements were important. Another think that was not considered was ROM based off of pain due to flare up. This was a question that was asked of my by the NP to where I told her that by the end of the day I am in so much pain I can barely walk. By the end of the week it is so bad that I have to rest all weekend just to be ready for the next week. Nothing I told the examiner is listed in the letter. To compound on the issue is that I submitted a personal statement that says what I told to the examiner. This was submitted when I filed in September and was on record before the C&P exam. As far as the Asthma goes I knew 60% was a pipe dream and I am ok with that. Last year was a pretty bad year for me Asthma related but I am getting it under control. I don't always have to go through the periods of getting steroid treatment every year. It is sporadic. Some years are really bad and others are ok. So I am not going to fight the Asthma rating. As you said.....60% is more temp than anything The Rater also made some error. One was where the rater stated that Dr. Ellis diagnosed me with Diabetes. He did no such thing. He only confirmed that I had diabetes and put in my letter that I was diagnosed in Dec 2018 and I was by my primary doctor (civilian) I uploaded those records and the lab reports that show my A1C levels which warranted diabetes. I also submitted my medication list that showed I took metformin. Now I used obesity as an intermediate step for diabetes. My inability to exercise to has led to my weight gain which led to my obesity. Now I claimed my inability to exercise was do to the pain in my feet, ankles, hips, back and knees. Since I am only service connected for my knees (so far) the rater pretty much discounted that because I was not service connected for all of them. Another thing that throws me off is that the rater put in there that Dr. Ellis did not state if there are other ways I would have developed diabetes. That is a new one for me. Since when is it required for me the veteran to provide evidence of possible other ways of obtaining a disability.

I submitted my claim to reopen on Sept 16th and received a decision on October 16th. My claim is in two parts because I screwed up when I filed my claim. I has several claims that were denied some time back and we are well past the appeal period. I did not realize I needed to file a supplemental claim for those. I realized it after checking the status of my claim a week after submission and noticed those claims were removed. I filed a supplemental claim on Sept 22nd for those claims before I even received the letter informing me. I have a C&P exam on Nov 5th for those claims. I received a bump from 30% to 50%. I received my decision letter and to be honest I feel as though the pretty much ignored most of the evidence I submitted or at a minimum picked and chose what they wanted to consider. When I filed my claim I submitted a good amount of evidence. Now they generically list my evidence on the decision letter but most of the evidence was not even mentioned in the actual decisions. I used the Ellis Clinic to provide an IME and I thought it was solid. I am uploading the decision letter, my IME report and the evidence list I submitted (on a 21-4138) that breaks down all the evidence I submitted. Going to go the HLR route. decision letter no personal info.pdf IME no personal info.pdf Evidence List no personal info.pdf

If you request a copy of your C-File it will be in there.

Thanks... What you said makes perfect sense. I am going to resubmit all the evidence for the claims that I have to file a supplemental for.

I filed a FDC an Sept 16th and when it moved to Evidence Gathering more than half the disabilities I claimed were no longer listed. I learned that this was because I improperly filed some of the claims. The claims in question were to be reopened or were secondary to the reopened claims. The claims to be reopened were already past the appeal date. What I did not know was that these claims were to be filed as supplemental claims. I am in the process of getting all of that together but had some questions about evidence submission. All of my new claims or increases are being worked and I have a C&P exam scheduled for the first week of October for DBQ’s. I have an IME for all of my disabilities but as we all know the VA requires DBQ’s as well. Under my current claims all of the evidence I submitted has been uploaded and is listed when I view the uploaded documents. Even the evidence for the claims that were removed. For example one of the claims I wanted to reopen was for foot disabilities. It has been removed from my current claim but all the evidence I submitted to support it is still there. The statement in support of claim to reopen, The statement in support of claim with my personal statement and all the medical evidence including SMR’s that show the claimed disability was in my service records all along. When I submit the supplemental claim do I need to resubmit all of this evidence all over again or should I just submit a statement stating that all the evidence has already been uploaded?

I am really trying to understand this because I have been in contact with the Ellis Clinic a lot over the past several months while I prepared my package to send in. Every time I called I did not have a single issue getting someone on the phone and I have called and talked to them more than 10 times. Every time I spoke to them they were courteous and professional. Today's call was to see if they received my paperwork and they acknowledged they did. I sent it in a week ago and I understood that it could take two weeks to get a call back to schedule an appointment. I just wanted to make sure the received it. The person I spoke to pulled my paperwork out and said that they are going through them and should get back to me before the end of the day. They called me back an hour later to set the appointment and they had an opening in August that I took. After I got off the phone I realized I screwed up and could not make it on that day. So I called them back and explained it all to them and they were very accommodating and rescheduled the appointment for me without any issues. I have not been able to find a single person on this forum or the 2 facebook groups (closed veterans groups) I am on to say anything negative about Dr. Ellis and his staff. Everyone that has commented on him talk about how great he and his staff is.

I just made my appointment with the Ellis Clinic. I am set for September 3rd. I will let everyone know how it goes. I am pretty confident because I am going for issues that the VA clearly screwed up on like my Pes Planus/Plantar Fasciitis and my back issues. They were in my medical records but the VA stated that there were not.... let me know if your heard that before...LOL I going for the Nexus and DBQ to strengthen what I feel is a strong case for benefits but I just don't trust the VA to do right by me.

The claim for this is Somatic Symptom Disorder. This is what chronic pain is rated under. I have seen posts (facebook) where many have been rated for this.

I think this is huge news and could really force the VA to actually start doing their jobs. https://www.militarytimes.com/news/pentagon-congress/2019/06/17/court-allows-a-class-action-lawsuit-against-va-for-the-first-time/?fbclid=IwAR1HsZ8l8bnrI03WUb0uESmLH7BRAuRU0s1eawehDaabl8y0ufBeTjghQrQ#.XQgJRO27m0Q.facebook

How long has it been since the original claim? If it has been more than a year I would hire an attorney to assist you. Granted they get 20% of the back pay but in the end I think it will be worth it.

I am still completely baffled every time I read about what happened to you. Still kills me that the VA found a nurse practitioner more credible than a board certified podiatrist.

The fastest route IMO is going to be using Ebenefits but you have to stay on top of it. You need to make sure you upload everything and confirm that it is listed. I have heard some suggest that if you file your claim electronically to also mail in a hard copy.

I understand what you are saying and I could very well be talking out of turn here. I am trying to find info related to this because I was under the impression that the Bilateral factor is automatically included in combined ratings. I will keep digging and post what I find or maybe one of the seasoned vets here that know where this info is can show.

VA does not add up ratings to come up with total disability ratings. They use a forumula. With that said it appears your ratings come up to 43% which is rounded down to 40% The VA gave you a bilateral rating which combined the conditions of both feet. I believe because of this be bilateral factor is included in the overall rating. Your decision letter should explain how they calculated the 30% rating.

@USMC_SawGunner Based on the information I see so far it appears the rater for your claim could be completely clueless. It all depends on what your claim was for. I did not see the actual claim in your original post. Now with that being said, to me it seems clear that you are claiming depression because of the pain caused by your back. However the rater is having difficulty applying it to your claim. What was your claim request for? I am going to assume that you made the request for depression due to chronic pain. You have to spoon feed the VA for anything you are claiming for and they make behind the scene changes to make it harder. There was a recent change to the M-21 (VA Rater Bible) that allows the rater to request additional information in order to adjudicate your claim if you are not specific enough. If you do not respond within 30 days they will proceed with the claim which I am pretty sure will be a denial. M21-1 , Part III, subpart iii, Chapter 1, Section B, 1. Requesting evidence from claimant states: 'Whenever the disability claimed is not clearly identified, ask the claimant and authorized representative to clarify the issues to ensure appropriate development and accurate decision-making." M21-1 on requesting additional evidence. The VA is not required to show proof of delivery. All they have to do is show proof that they mailed correspondence to you and they say you never responded. Crappy but true.

From what I can tell it looks like he is service connected for his back. He has 40% for arthritis in his spine and intervertabral disk syndrome. The denial I believe is for depression secondary to his back issues.

For now I am doing it on my own. My personal opinon of VSO's are they are just as crappy as the VA but that is just from personal experience. I have dealt with 4 VSO's and none of them did anything. One actually said I am lucky to get 30% and to not rock the boat......LOL... go figure. If I have to appeal I am going to hire an attorney.

The ankles are going to be secondary to my flat feet and plantar fasciitis. My Asthma is going to be an increase from my already service connected bronchitis but I also have a statement from a C&P examiner that my asthma symptoms started in service. Sleep Apnea is going to be secondary to all my disabilities preventing me to work out and gaining weight. Going to use obesity as intermediary step for that and can also couple that and use asthma as well.

I am going to get an IME done for the Sleep Apnea, Ankle and Asthma (just to be safe). My feet and back issues are documented in my medical records. I am already service connected for both knees. The issues were always chronic which is why I am getting the statements to show symptomology over the years. My current wife is working on a letter as well to cover the last 10 years. I currently have an intent to file on records. I am just gathering all my evidence. In my denial letters the VA stated that my back and feet issues were not in my records. I now have my SMR and C-File to show they were incorrect and basically ignored it.

Can you guys review this statement and let me know if it is ok or if it needs anything? This a statement my ex wife wrote for me. It is in basic format because we are going to put it a VA Form 21-4138 and then sign it. Just wanted to get some honest opinions. Thanks Statement in support of claim 1.docx

I am convinced the VA when they receive a C-File request goes through them and removes some information. It appears that is what happened in my case. I made a request for my SMR's and the Regional office stated they did not have them. I though that was odd considering they should have had them in there since they adjudicated my claims. So I jump through hoops and finally get my records and in there is a letter on VA letterhead dated 5/2/00 that shows they were transferring my records Houston Regional Office. I know this because the "TO" in the letter was VARO (362/21) which is the Houston Regional office. Someone also put their initials on this letter on 5/15/00 and wrote records review. They had to have actually received them because the very same records is in my C-File. With one exception...... The letter with the date on when it was sent to them is nowhere to be found in my C-File. I have painstakingly went through my C-File at least 10 time trying to locate it. It is not there.

you can be rated for secondary conditions at any time. However, in order to have a secondary condition you must first have a primary service connected disability. I have seen and heard of instances where secondary claims are denied quickly because the primary condition has not been yet adjudicated. From the statement you listed the C&P examiner is basically stated the issues you are claiming as secondary were more than likely not due to your diabetes. Since this was done in 2016 your best bet is to request your claim be reopened since you have new evidence to submit.

In all fairness I should have stated my civilian medical records. I was officially diagnosed with asthma after I got out of service even though I exhibited symptoms on active duty. I have been seeing a civilian doctor for this and not the VA so they would not have had access to my records. However, I swear I signed an authorization form form them to obtain records but i did not see that in my C-File.