Foxhound6

I ran into this under 38 CFR 3.307 - This is what I believe the HLR reviewer was referring to. I have lay statements, CP exam (from 2019 with one of the Va examiners) and continuity that can show the 10% or higher rating back within the one year window. Have a look, perhaps I am interpreting this wrong? (c) Prohibition of certain presumptions. No presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period. This will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.

Just an update via the BBE I received. The cervical spine was deferred due to the following: Clarification of conflicting medical evidence and new medical opinion. Unsure as to what was conflicting, same info they've had really. Maybe the examiner mentioned something.

This makes sense. I would hope its not a negative thing per se. Hoping since back was approved this one will too but just done by another doc.

That has been my experience too. The examiner that did my back also examined my neck. So I can only assume he maybe did not have the "proper VA credentials" to complete the specific DBQ. Or it involves more than originally thought and needed someone slightly more qualified to complete it? The original QTC examiner was a general MD. The new exam (or review since I wont be attending) is being done by an Internal Medicine MD. So some more education there that covers a broad spectrum. I actually used an internist to complete an IMO for me as it related to this claim so I can see that happening.

Me too. The examiner I had for the back portion (he did my neck measurements too) was good. Pretty laid back too. Younger. Oddly though I think this next examiner is strictly going off of my exam done by previous examiner. He opined favorably. Just dont know how this will work out.

I understood that. I was just perplexed as to why my examiner couldn't do the neck dbq. As said tho, It may be due to those different sets of things you mentioned

I have a feeling it may be what you are describing. Really, the VA examiner from 2019 is what screwed them. He failed to opine on secondary condition and that is what gave me the new exam a couple weeks ago. The exam that I had a few weeks ago was also QTC. They approved my back and radiculopathy and they were on the same claim. So, I assume either they needed more clarification on something or wanted someone with more medical knowledge to do it? It is odd that the examiner would have completed my back portion but had to defer my neck? I understand that internal medicine doctors are usually consulted when an injury affect multiple systems/body parts as they have more of that knowledge to link one issue to another. It could be that they feel my neck issue is more related to my back issue and not my SC knee issue, if that makes sense.

Got a letter regarding my deferred neck claim from recent exam. QTC has to send my file to another MD to review and fill out the DBQ based on last exam I had (which was only a few weeks ago). I assume this could be due to the person who did my exam was not qualified to complete that specific DBQ? This is a new one for me lol

I did not. I complained of back pain then but didnt file anything as i didnt know jack about it. That and the person seeing me back then, whoever it was, told me “its probably because of your knee issue”. And they left it at that

So, I had an HLR initiated awhile back. There was a DTA and I was sent to new exam on 3/23. The rating came in today on Ebenefits (I know, ickk, waiting on BBE). EED shows 2018 on my two awards for DDD in lumbar and radiculopathy on left side. Problem is, the HLR decision received explaining the DTA error that gave me the new exam stated that the condition would be presumptive to 2011. I feel like maybe the person rating did not quite see that part of the claim and went with my original intent to file date? I notified my attorney of it, maybe they can see it in system. However, with COVID they have been having a lot of......employee turnover at my attorney firm, so it has been more difficult to reach them timely than normal. Just trying to see if I misread something or not. Below is a link to the timeline I have been keeping of this claim as well as the HLR DTA error decision from Nov 2020. Thanks

I appreciate you explaining how the system works where you can. Having some experience with data management systems, I know all too well how they can function and in times like these, can function in a way that just bottlenecks things..making it hard to get things done. Even if others don't feel the same, most of us can relate in some way. Honestly, having dealt with state employees trying to figure out our UI issue out here, I MUCH rather have fellow vets and those who have been thru the claims process handling these things rather than some random civie. In the words (borrowed words?) of the infamous Joe Dirt: Keep on keepin' on!

I am currently going thru something similar. However, my first exam (was with the VA itself) wasnt great and they had a DTA and gave me a new exam which I just finished the other day. My issues are close to yours but with my thoracic junction which I have been told is very strange place to have it as they usually see it in places like where yours is. With that it has made it difficult to see it on radiographical images. So my rheumatologist, for now, is calling it Non-radiographical axial spondyloarthritis. I have partial fusions, DDD, along with levoscoliosis and other crap going on there. I originally claimed as an incident I had during active duty, but the examiner that I saw with the VA shot that down. However, he did not opine as to whether or not it could have been secondary to my left knee SC issues over the long term. Myself and my attorney pointed this out (I provided an IMO from a board certified internal medicine MD) and they gave a new exam. This one felt like it went well and I even had far better xray results to present and symptoms. I just have to hope the examiner opines in my favor as my issues being secondary to my left knee issue. I may have to have an EMG done as well as the examiner at recent exam noticed I had absent reflex in both my knees and ankles.

I would do the same. However, in my experience, it can be hit or miss whether the examiner will look or even accept them. I have had one examiner thank me for bringing certain documents because they had not seen them in the CFile and I have had an examiner outright tell me he didn't want it. But I believe it is ALWAYS a good idea to bring all pertinent information to the exam, you never know how it might help.

I hate to say it but I agree with Pac. Looks like they identified a DTA in your claim.via that HLR and it was sent back St Petersburg RO for processing. That RO put in request for another GERD C&P. I am in same boat with my HLR for exam on lower thoracic. Been waiting months for QTC to get me an exam. Hang in there.

I would also second this. But I also have used iris twice now for an issue with no response (been few months now). Going senator route before WH hotline. See if that goes anywhere

Berta also posted this yesterday. Thanks for the reminder though. I need to look at it more.

Thanks Berta! This might end up changing my entire case! LOL Not sure in what way, but reading some so far, it seems to be a little more favorable depending. I feel there is going to be A LOT of freshly denied claims when it comes to these updated regs. It also does seem tho, that if you put in for your claim PRIOR to the change (before Feb 7) then they will rate you either in the old system or new and award whatever is more favorable to the veteran? That seems nice.

I think @shrekthetank1is correct here. I was also told this during a VES exam not long ago. Although, my exam was uploaded after about 3 weeks. I am currently being given the run around with QTC. Been waiting 3 months for an exam of the thoracic spine as well. Keep getting put on a list for events that pop up randomly and have to wait for a call to be scheduled but the call never comes. Unfortunately I have not found an email address (plus I would fear the email would be to the wrong individual and would just end up being forwarded from person to person as that is how these companies seem to operate). However, the number I call QTC with is: 1-800-682-9701.

It sounds like you just had a bias examiner. They are definitely out there. Fortunately, those exams are usually simpler to disprove via a well written and medically backed IMO such as the one you may be seeking from Dr Bash. You could also include a personal statement about that exam experience and the hostility of the examiner along with it as supplemental if it is denied. An HLR would likely just net you a new exam and delay your claim more and then you are rolling the dice again with nabbing a poor examiner. So that's probably not the best route. Honestly it sounds like you are taking the correct steps to keep your claim alive and on the road to getting approved. Patience is something all of us struggle with during these claims, me included. I HATE waiting but we know it's part of the game. My anxiety gets the best of me some days but we know what our mission is. Keep at it brother. Stay the course. Give Dr Bash some time to reply, if you haven't heard anything just send a nicely written followup asking if they received your files and if they have any questions to contact you. The wait is one of the hardest parts of these claims.

As everyone has stated above, it doesn't look bad. It appears more an "administrative" error. At some point, the VA just failed to attempt to get a portion or your records, whether that is STR's, private docs or even LAY STATEMENTS. Side note: even under other circumstances, lack of STR's for an issues is never a deal breaker. Could it be a little more challenging? Yes. However, it is not a deal breaker. My own experience, so far, can attest to that. My current claim appears to be stating that my issues will be presumptive and that is directly due to lay/buddy statements. If you could find a way to upload a redacted copy of letter or just the evidence list as Berta mentioned, it may help in wrapping our heads around the Nexus/In-service event conundrum?

If it were me I might email back and explain that I understood that but, if possible, you would like to have that "corrected on the record/his notes". The statement, while not meaning to minimize the issue, that language may be taken out of context by the VA and possibly lead to a reduction of benefits. The fact that you got a response in email means you now have "counter weight" evidence. I feel that his response itself could serve helpful in any review as it at least provides some sort of contextual sense of what he meant. It isn't the best but it is something. I would likely send another email similar to what I stated above. Hang in there

Berta, great post! Id like to offer a couple buddy statements I used in my claims as an example. The redacted info I will explain in the post itself here. The first is from a former NCO I had. It is a good example of a buddy statement you described in your post. The bottom redacted info lists all as you said. It identifies the individual by name, address, phone number, and email. It also describes the who, what, where, how and why of the event in the narrative. The second is from my father. So, it is differently formatted than the VA form 4138. However, we included the "I CERTIFY THAT the statements on this form are true and correct to the best of my knowledge and belief" in it and had it notarized. It also provides the same information needed. Identifies the individual by name, address, phone number and email. I hope this is ok to post. Thanks for all you do! SSG Signed VA_Redacted.pdf Dad Signed Statement_Redacted.pdf

I fully understand that, no worries. Takes me awhile a lot of the times to send off a solid, coherent post on here LOL. Anxiety sucks..

I am not the most versed here by any means but I have found the info from this source to be pretty solid. Have a look at these, maybe they can help? I'll provide link too. http://www.militarydisabilitymadeeasy.org/kneeandleg.html#limo