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RBrogen
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Posts posted by RBrogen
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I was talking with another vet recently and we were discussing service connection and the question came up "can the VA can "un-service connect" a condition once it has been service connected? If my memory serves me the only time this might occur is if there was intentional fraud by the person (e.g. faking conditions or records) In cases where there is conflicting opinions about the severity of a condition, the heavier weight is supposed to go to the report created by the examiner who has the most experience in that field.
Anyone have thoughts on this?
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I'm optimistic about what I've seen and how my evidence falls into alignment with what I believe is a plausible case. Like everything with the VA, I get the sense I won't know how the VA is going to "respond" until I package it up concisely, timeline and exhibits and submit the request for claim reopened based on CUE.
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Here's an actual court case where the court sided with the Veteran in an almost identical situation as mine. The veteran in this case actually said he had sustained an injury prior to service.
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3 minutes ago, Buck52 said:
Another way to prove service connection is ifa pre-existing condition is aggravated during military service. There is a presumption of aggravation. This means, that if it is shown that the medical condition the veteran had before service was made worse while in-service by the veteran then the VA must show by "clear and unmistakable evidence" that the increase in disability is due to the natural progress of the disease. To rebut this presumption the VA has a very difficult burden to meet.
This type of service connection needs to be made when the VA is able to overcome the presumption of soundness. Under VA law it is presumed the veteran was in sound condition when he entered service. To rebut this presumption, the VA must show "clear and unmistakable" evidence that the condition pre-existed service. If the condition is noted on the entrance medical exam then the presumption of soundness for that condition does not apply.
The most common reasons aveteran is found to have a pre-existing condition is if there was medical records of treatment for the condition prior to service, or the veteran states he had the medical condition before service or it was noted in his/her entrance medical exam. In this type of service connection, the issue is first whether there was a pre-existing condition. Second, if there was a pre-existing condition was that condition made worse or aggravated by service. Lastly, if the condition has become worse is it due to a natural progression of the disease. If you have a claim of this type the most important aspect is to show by medical evidence that your condition has gotten worse in service. If you can show this, the VA has a very difficult burden to meet when having to show that your worsening condition is the result of the natural progression of the disease. The VA will normally try to overcome the burden by opinion evidence from the VA doctor that states your worsening of your condition is due to the natural progression of the disease. If they have an opinion like this in your particular case it would be a good idea to get opinion from your own doctor.
Since I have the service connection now, I would think that the fact that the didn't apply the presumption law originally would be even more in question and go to support my position. I have never said that I had a high school knee injury of torn meniscus because I never had one did. I never went to a doctor for that so there is absolutely no medical evidence that can state otherwise.
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1 minute ago, Buck52 said:
Remember that this is only part of the equation for service connection. If the VA is not able to rebut the presumption of soundness, the veteran still must be able to prove the two other elements of service connection – that he or she has a current disability and that a nexusexists between the current disability and the injury or disease in service.
Right well the point on that is that I am now service connected for both knees which was what was denied me before so the nexus was established. I'm not sure but one could extrapolate that to be that if they had correctly applied the presumption law that it would have probably changed the rating decision.
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2 minutes ago, toddt said:
38 CFR § 3.304 (b) ". . .where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted." In your case it should make no difference whether or not it was preexisting. It was aggravated by service. (Just my two cents).
Here's a great explanation by a veteran lawyer Chris Attig: https://www.veteranslawblog.org/presumption-of-soundness/
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Thanks GBArmy .... my understanding is that the core base is the fact the cue would be that the rater did NOT apply the presumption of soundness rule that explicitly states (regardless of 'hearsay') that the test of Presumption is that any claim to be denied for pre-existing condition MUST have that condition NOTED on entrance exam. If it is not noted then you are presumed sound mind/body regardless of a non-doctor examination note. Had the rater properly applied the Presumption law, they would have never gotten to the note discrepancy.
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Hello Everyone,
I wanted to put a situation out to you all and get your feedback as it would relate to a potential presumption of soundess cue claim.
Back story: 1983 - In high school I tried out for varsity football (note I am 5'5" and 135lbs at that time) so I could have some level of social life. First day of practice a kid ran into my left side and hurt my knee. I DID NOT seek medical attention, never went to the doctor and was fine the next day (though I did decide not to try out for football any longer).
Fast Forward: 1985 - I joined the Army National Guard and NO MEDICAL ISSUES were noted on my entrance exam. I transitioned from ARNG to RA in 1987 and did not have anything listed on the exam for that either. I was Airborne and have STR entries for strained MCL, Achilles and Twisted knee.
1991 - I got out of the service with a lumbosacral strain issue with 20% disability at that time.
1996 - I had meniscal surgery on left knee
1997 - I had surgery on my right knee was going to physical therapy. During the review the physical therapist did to get medical history they asked me about injury history and so I told them the only issue I ever had was the issue in high school which was really a non issue but I was being honest and the meniscus surgery the prior year. They incorrectly annotated on my record that the high school knee injury was "torn meniscus" by combining my two statements into their notes to read high school knee injury (torn meniscus).
1999 - I filed a claim for bilateral knee issues and was denied because the rater read that note and said that I had a pre-existing condition. There is no medical evidence of my high school knee issue because I never went to the doctor and the next day it was fine.
I was finally able to get a rater who service connected and rated for both knees and ankles and nexus was established for marching/jumping in service. I didn't know exactly why I was originally denied but after getting my c-file I figured out that it was all because of a physical therapist not taking proper notes.
My question is that I don't think they properly applied the presumption of soundness rule in my case because the rater had no direct medical evidence to prove that I had a pre-existing condition and the entrance exam(s) were negative for any medical conditions. I'd like to get your thoughts.
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Well after 20 years I finally found out why I was originally denied my bilateral knee issue because I have my C-File! Apparently a physical therapist screwed up and combined 2 statements into one to make it appear that I had a pre-existing knee condition. UGH!!!
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3 hours ago, Patton said:
Here is mine:
40% from 05/20/2014
60% from 08/11/2016 (Bilateral factor of 3.5 Percent for diagnostic codes 5271, 5257, 8520)
70% from 06/08/2017 (Bilateral factor of 3.5 Percent for diagnostic codes 5271, 5257, 8520)I am at 80% now, but this is what it said after receiving my C-File in 2017.
I have no idea why they calculate the bilateral factor differently
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Can someone verify for me I'm reading this correct. I'm showing this Rating Decision information saying that they apply a 6.3% bilateral factor for my bilateral conditions. I thought it was supposed to be 10%
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Look what came in the mail this morning ... about 2900 pages of goodies.
- ShrekTheTank, Patton and GeekySquid
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UPDATE: Just got a UPS Overnight shipping notice about my records being sent to me. Fingers crossed it is the correct, full file ... will find out tomorrow morning.
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Does anything have any experience/thoughts on this one?
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1 minute ago, RBrogen said:
Yeah we have .... I have been contemplating putting together a very simple flowchart that shows the process in general so it can be shared so vets at least have a general idea of the process and what to do themselves. I spun my wheels for 9 months with blank DBQs trying to find someone to complete them only to find out that they are completed automatically in the C&P ... literally that was my biggest hurdle. Once I figured that out, it was a matter of educating myself more on conditions, nexus and what to expect during the C&P. I tried leveraging a VSO but they took 2 months and still hadn't even submitted the initial claim info so I pulled it back and have done it all myself. I went from 20% to 90% in 6 months and now after the last 2 C&Ps within the last month I am on track to hit 100%.
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Just now, GeekySquid said:
bingo... and I believe most of us have been there at some point
Yeah we have .... I have been contemplating putting together a very simple flowchart that shows the process in general so it can be shared so vets at least have a general idea of the process and what to do themselves. I spun my wheels for 9 months with blank DBQs trying to find someone to complete them only to find out that they are completed automatically in the C&P ... literally that was my biggest hurdle.
- Patton and GeekySquid
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42 minutes ago, GeekySquid said:
the three distinct parts of that sentence set your actions/choices above the norm.
Thanks GeekySquid .... I try to put myself in their shoes as well. The people working at the VA know they history of the VA has been deplorable and that they have a LONG way to go to get where they should be as an organization. But I find you get a lot more help with kindness, understanding and perseverance than irate yelling, demanding and posturing. There are a lot of good people at the VA, and some not so good. Given the chance, most will help you but you have to own your side and responsibility for your claim. That means educating yourself to all of your claimable conditions, understanding 38 CFR and how to present your condition in such a way to make it undeniably connected and ratable. You also have to READ EVERYTHING multiple times to ensure you understand exactly what the diagnosis are, potential SC conditions, denial letters, C&P reports etc. It's WORK but it is ultimately your responsibility to do that work if you want to get your claim approved and rated appropriately.
Unfortunately where I think many get bogged down is that they don't know where to start or don't educate themselves to the process fully. You can't expect a quick or accurate claim adjudication if you just say I have X condition(s), go look at my medical records and pay me. You have to lay each condition out methodically, connect the dots for NEXUS and provide support documentation so that a C&P examiner and Raters can look at your claim and say ... Ahhh, condition 1, here's the nexus, here's the proof .... let me assign the rating. Versus, here's a vague condition, they want me to troll through hundreds if not thousands of pages of hard to read medical records to find the preverbal needle in a haystack. I've been working with several veterans to give them the shell of the process so they can then educate themselves like I did. I think the more of us that take this approach, the more we'll see positive results.
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2 minutes ago, GeekySquid said:
I certainly agree, but reality is if that use of power becomes a common theme out here in the wild, you can bet the squirrels will come down out of the trees and overwhelm her office with questionable attempts to do the same...Exemption 6 or not.
Yeah ... I can see both sides where those who can help would sometimes be reluctant to because of the deluge of BS requests from those who don't do their homework. They would never be able to do their jobs. I've spent the last 17 months building rapports with contacts while I educated myself about the entire process. To the person, they are all more than willing to help when you come to them, prepared, with concise information.
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1 minute ago, GeekySquid said:
that will be rich if complaining to the FOIA Director will over rule Denials, bogus or not, on FOIA requests. That director will soon have to change her phone number.
When the denial was blatantly illegal use of FOIA Exemption 6 I think it was right in her wheelhouse to say WTF to the RMC Director and the OGC. A combination of things, not a small factor of which is the great feedback and information shared here on Hadit!
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1 minute ago, GeekySquid said:
So is this the Denial you posted about that started this thread? or is this notice about one of the moving pieces?
Yes it is about the original denial that through the process, I got in touch with the FOIA Director and she contacted the Records Management Center Director last Wednesday who told her that he was going to have his team work my file that evening. It appears that was what happened ... the question now is will it be my full C-File.
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UPDATE: I found that my C-File FOIA request was completed on August 8th and I should be getting it in the mail soon. Hopefully it is my full C-File. It appears that the FOIA Director got the Records Management group off of their butts to avoid the litigation.
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Just now, GBArmy said:
This C&P was for a claim to increase your ratings on already s-c conditions except the shin splints? And, you also included a new claim for the shin splints along with the others for increases? Just trying to understand the facts.
Claim #1 did NOT have shin splints on it. Claim #2 had shin splints on it and that condition was denied without a C&P because the rater stated that they didn't see any evidence in my STR. I submitted a 21-4138 challenging this decision on the basis that the rater is not a medical person and doesn't know what contributing conditions might cause the shin splints (e.g. I was airborne) and it was frowned upon to go on sick call for achy shins.
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My latest C&P covered some items that have already been service connected (neck, knees and ankles) and one in particular (bilateral shin splints) that I have filed a claim for but was denied on a previous claim without a C&P.
The examiner in my most recent C&P completed the DBQs for ankles, knees, shin splints, scars. On every DBQ there is a question that says "Was an opinion requested about this condition (internal VA only)? [ ] Yes [ ] No [ ] N/A. Every single one of these questions were checked NO.
On every DBQ I've had, it has always had YES checked for this question and at the end of the C&P report, the examiner would give an opinion and state 50% or more likely or not likely on the condition. However, on this last one, every DBQ had this question checked NO. If I understand the logic behind this (this is what I'm trying to figure out) then it would mean that if the condition is already service connected and they are only looking for severity/rom condition details for rating purposes. Now that logic makes sense for all of the conditions EXCEPT the Bilateral Shin Splints because I was previously denied by the rater without any associated C&P with the reasoning that they (the rater) didn't see anything in my STR for that condition. Does that mean that they are associating the shin splints because both ankles and knees are already connected and evidence would support common sense that the shin splints are also connected?
I wanted to get your thoughts on this.
Thanks as always for your helpful insights.
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3 hours ago, NoZZZ's said:
Did you appeal to get a higher rating, or was the new C&P for a new claim for increase?
It's a bit complicated but the gist is I filed a claim that included neck, and knees (was awarded 10% neck, 10% left knee and 10% right knee). I filed a higher-level review that didn't get done so I had to file a supplemental claim because they didn't consider Reverse Lordosis and torn meniscus in both knees which are direct conditions for 20% for each claimed condition.
Now, while this claim was being bounced around and closed without adjudication because the VA had an Independence Day Challenge for their raters to close X number of claims to get an extra day off on July 5th 2019, I filed another claim which contained 7 additional conditions including bilateral shin splints and jaw and that clam was also screwed up because of a demonstrable inadequate C&P exam and a couple of items were denied, another lowballed and the rest were deferred.
Ultimately what I think has happened is that they are running both of these claim in parallel because I just had my 2nd C&P in a month and the first one on July 10 covered deferred items in second claim and the latest one on Aug 6th covered conditions in both claims.
Shin splint rating question
in VA Disability Claims Research
Posted
Hi Everyone,
I was wondering if you could shed some light on how the VA might rate bilateral shin splints with this info. Note I am already rated arthritis in both knees and ankles at 10% for each of those. I would think that 38 CFR 5262 would be the rating code
C&P Report
Right Ankle: Dorsiflexion = 0-15 degrees / Plantar Flexion 0 to 30 degrees
Left Ankle: Dorsiflexion = 0-10 degrees / Plantar Flexion 0 to 30 degrees
Moderate Pain
Left/Right Knee Moderate pain decreased ROM = 70 degrees
As always, thanks for all of your opinions.