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About LightofSolitude

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    E-3 Seaman

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  • Service Connected Disability
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  1. In order to receive a grant of the benefit sought after a denial, you must first understand why the VA denied you. You must also understand the facts of your own claim. Observe the following two quotes below from your decision letter dated April 21st 2020: 1. “To establish direct service connection for a claimed disorder, objective evidence must show a diagnosis of a current disability that is related to a disease or injury incurred in or aggravated during “active” service;” 2. “Veteran was in a motor vehicle accident 11/90 prior to his active duty and was treated during his active duty with physical therapy.” Your medical records state that your car accident occurred on November 27th 1990. Your active duty activation started on November 30th 1990 just three days after. This means that your car accident occurred when you were in a “Title 32 status” with the Army National Guard, not “Title 10” which is federal active duty. Therefore, the VA is correct in saying that your injury did not have its “onset” in “active service.” If you were on orders traveling to / from a duty station (which you would have received travel reimbursement for by the government) then your accident would have been “covered under Title 10 federal orders.” However, there is still an avenue for service connection and that is “service connection by aggravation.” After reading your records, I have found that the VA has violated two specific regulations in your claim. These violations are as follows: 38 CFR 4.6 “Evaluation of Evidence” 38 CFR 3.306 “Presumption of Aggravation” Based on the records that you posted, I have found “four very important facts in your claim.” These are as follows: A. Line of Duty Determination: Your “Chronological Record of Medical Care” or Standard Form 600 is your proof of an “in-service event / injury” for purposes of “aggravation” (This is your second element for service connection) B. Referral to Physical Therapy: Demonstrates that an increase in disability occurred while on active duty C. Sick call notations in service: Also aid in demonstrating that an increase in disability occurred in service D. Buddy Statement: The fact that your buddy was with you while in physical therapy at the same location adds "probative value" to your claim In my humble opinion, the negative VA medical opinion of record did not adequately consider the “degree of aggravation” of your disability. In order to rebut the “Presumption of Soundness” the VA must show by clear and unmistakable evidence that your condition was not incurred in active service AND was not “aggravated” during active service. The latter portion here is where you have highly probative federal evidence that demonstrates you having a meritorious claim. Here is what I would recommend that you do: 1. File an HLR “High Level Review” (you cannot submit any new evidence with this option) and specifically point out the facts and evidence that VA overlooked (blatantly ignored) in your claim, which I have posted above for you. This is of course assuming the VA already has everything you have posted in this thread in your C-File. Here is the form that you need: https://www.vba.va.gov/pubs/forms/VBA-20-0996-ARE.pdf 2. Obtain an expert medical opinion to rebut the negative opinion on record by VA. Take all the evidence that you have posted here (and more if applicable) and present it to a specialist in the field for which you are applying for disability (see an orthopedic surgeon, rheumatologist, neurologist, etc.) If the HLR is denied, file a formal appeal with the BVA and then supplement your record with a positive medical opinion as suggested above. Going to the BVA without a positive medical opinion on record is like going to war without a weapon. I believe that this claim can be won at the Regional Office level; you just have to present it in the correct way. Make sure to cross all your T’s and dot all your I’s because the VA will never do this for you. Don’t give up. Please continue to keep us posted. We are here to help!
  2. “Service-connection for this condition remains denied as the evidence continues to show this condition was not incurred in or aggravated by military service.” Whenever I see the above statement in veteran’s decisions, two things immediately come to mind: 1. There is a “negative C&P exam” on record (to which VA used to justify a denial of benefits) OR 2. You have no independent medical nexus opinion at all in your C-File What you have to do here is get an expert independent medical opinion to rebut the negative VA opinion on record. You want to get your claim to a point where the “benefit of the doubt doctrine” is applicable to you and a strong private medical opinion will do just that. Here is your claim as it stands right now based of off what I see and have read in this thread: A. Current Diagnosis (you have this element covered) B. In-Service Event / Injury (this element is missing from your claim) C. Medical Nexus Opinion (there is a “negative opinion on record” by VA) The problem here is “B and C” listed above. No amount of private medical records can fix “B” stated above and without B there is no way to obtain “C” because that medical opinion would have little to no credibility (The medical opinion links A and B). I believe that you still have a valid claim as you have a current diagnosis; however you are going to have to do your “due diligence” to get the claim granted by VA. Do you have a copy of your active duty orders and if so, can you post it here? Depending on what your orders say (in my humble opinion) will determine whether or not you will need an attorney for this claim. The government can reimburse you for travel to and from a duty station. You are considered “government property” after taking the oath of enlistment, so if something happens to you on your way to a duty station, the government has to know about it as you are required to report it. Also, keep your paper trail going by staying in treatment and keep us posted. Don’t give up.
  3. The moment of victory never gets old! Congratulations on your hard fought win!!
  4. It's good that you are considering an IMO, but remember, you cannot submit this IMO as "new and relevant evidence" if you choose the "HLR route." It might be in your best interest to take this straight to the BVA. For some reason, the VA loves to deny sleep apnea claims. I know through years of research and reading endless court cases that sleep apnea is one of the more difficult claims to win at the Regional Office level, but not impossible. Whatever you do, do not give up. Perseverance is key, especially in your particular case.
  5. Remember, you can always file for an increase if your condition gets worse. Should you ever feel the need to file another claim in the future, we veterans here at Hadit are here for you. Congratulations!!!
  6. Reading your post and hearing the audio put a big smile on my face! Excellent job!!!
  7. To answer your first question: This would be a violation of CAVC Court Precedent Mariano v. Principi which you can read here: https://www.uscourts.cavc.gov/documents/Mariano_01-467.pdf To answer your second question: It is prohibited because the VA is supposed to be "non-adversarial" and the Benefit of the Doubt Doctrine should be applied when it is warranted. To answer your third question: Yes, but that is entirely up to you. Perseverance is key. If you give up, the VA wins. If you continue fighting, you will eventually get what is due to you if you have a meritorious claim.
  8. Broncovet is right. It seems that you are putting the cart before the horse so to speak. Until you get an official letter with a proposed reduction, nothing is official. If he has "a medical paper trail documenting his symptoms" then you have nothing to worry about. If he does not, then get him the help he deserves. The VA cannot use an isolated piece of evidence (ex: therapy notes of improvement) as justification to reduce his rating. They are required by laws and regulations to consider the "totality of the evidence" and then make an equitable and just decision on whether or not to reduce his rating. Stay positive and optimistic. We are here to help!!
  9. Congratulations on your hard fought win! Myself and many others are very proud of what you have accomplished!!!
  10. Agree 100%. I just won a CUE at the Regional Office level. If one is familiar with applicable laws, regulations and court precedents, then CUE's are easy to spot!
  11. Roger that! Just donated to Hadit.com!! I will continue to stick around to help other vets who need it!!!
  12. Thanks Buck52! As you and many other veterans already know, it is not easy advocating for yourself while at the same time dealing with symptoms from disabilities. I try to keep myself hydrated as much as possible!
  13. I didn’t expect to get an award letter from the VA out of my mailbox on this day, but it happened! I am now 60% Service Connected!! Here is a quote from my award letter of what the VA determined: “A clear and unmistakable error is found in the evaluation assigned for folliculitis barbae of the beard and chest. Therefore, the separate evaluations are combined and an increased evaluation of 60 percent is assigned effective May 22nd 2019. Your combined rating evaluation is 60%.” Also, listed below is a brief timeline of my appeal: Brief Timeline: Filed a supplemental claim (Decision Review Request) on October 23rd 2019 Claim received by Regional Office on October 23rd 2019 Claim closed on November 29th 2019 Retro Pay hit bank account on December 5th 2019 Received Award Letter in the mail on Friday the 13th (December 13th 2019) Total time spent for re-adjudication of claim: “38 days” I had all of my ducks in formation with me calling cadence! There are still a couple of secondary conditions that I would like to have service connected so my fight with the VA will continue, but I will never give up for what is due to me. Let these words encourage all my fellow veterans with claims still pending to keep up the good fight!!!
  14. You need "three elements" in order to get service connected. These are as follows: 1. Current Disability (without this, there can be no valid claim) 2. In-Service Event or Injury (proven by a line of duty determination) 3. Medical Nexus Statement (showing the relationship between #1 and #2 above) Based on what you posted, my assessment is as follows: 1. Current Disability = You are good to go here 2. In-Service Event or Injury = This one is questionable. It seems like you have this element, however the doctor is going to have to clarify his/her opinion on exactly what is the cause of your current disability or provide sufficient rationale for "secondary service connection." 3. Medical Nexus Statement = Due to the doctor rendering a "negative opinion" the VA is most likely going to completely disregard the doctor's rationale anyway and deny the claim. An "HLR" would most likely result in the claim being denied again as you cannot submit any additional evidence with this option even if such evidence is favorable to your claim. My advice: Get another medical nexus opinion "rebutting the negative opinion with a clarifying rationale" to support the claim. Then file another "supplementary claim" along with submitting "new and relevant evidence." Remember, your goal is to get service connected at the 1st level of the claims process (regional office level). You can always appeal at a later date for an earlier effective date. Also, throwing in a couple of pages of medical literature would strengthen your claim as a whole. The following regulation: "38 CFR 3.159(a)(1)" specifically allows you to do just that. Keep fighting and NEVER GIVE UP!!!
  15. Vync is right on the money with this assessment. In other words, if you do not have an injury or event in-service of your "left knee" specifically, it would be more beneficial to you to argue on the basis of aggravation from the "right knee" which is service connected. Moreover, pay attention to what Dr. Anise says here: "Thus, his left knee tendonitis/tendonosis is more likely than not also caused by and/or aggravated by his service-connected right knee condition." Does Dr. Anise specifically cite your medical records (be it private or federal) to substantiate his opinion (as well as supporting rationale) on the degree of aggravation? If not, then this is the reason why VA denied the claim. Judging from the denial letter you posted, the adjudicator gave "substantial weight to the VA examiner" and completely rejected Dr. Anise's medical opinion. Dr. Anise also states the following: "Medical research clearly shows that soldiers are especially susceptible to osteoarthritis after discharge from the service and that osteoarthritis may manifest itself many years after the initial injury." Here, Dr. Anise should have cited the following: "38 CFR 3.303(d) Post service Initial Diagnosis of Disease." FYI, see below: "(d) Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid." Moreover, medical literature is typically general in nature and should be "supplementary to your medical evidence" to strengthen the merits of your claim. Never under any circumstance should medical literature outweigh private and federal medical records in my humble opinion (example: submitting 20 pages of medical records and then submitting 40 pages of medical literature for a total of 60 pages in your claims file). Here, Dr. Anise should have tailored his medical opinion on you (the veteran) instead of "soldiers in general." In my opinion, there are two things that need to be clarified with this medical opinion: 1. Exactly how your service-connected right knee condition has caused a left knee condition 2. Exactly how your non-service connected left knee condition is "aggravating" your service connected right knee condition If you have to overcompensate with the left knee, then that would put more stress on the "right knee" which in turn would make the right knee worse over time. I would politely ask Dr. Anise for an "addendum" to his medical opinion explaining the above two issues in further detail and citing the specifics (facts) in your medical record that led to an increase in disability. I don't know all the details of your claim, but it definitely sounds like an error has been committed. The VA loves to ignore "probative evidence in favor of the veteran." Do not let them get away with it. In addition, "38 CFR 3.310(b)" will help substantiate your claim. This regulation states the following: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. (Authority: 38 U.S.C. 1110 and 1131) Hope all this information helps. Keep fighting and keep us posted!
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