ronnieusmc0311

Ronnieusmc0311 I would not bother with HLR. I would go BVA. If you think you want to get additional medical evidence regarding the nexus, apply with additional evidence. Otherwise, you are saying the VA simply isn't giving adequate weight to your evidence.If you choose additional, get a specialist's opinion to support your PCP. The rational should state specifically what medical articles/findings you are referencing and include them in your appeal, rather than just say "it is well known from literature."  In other words, give it to them on a silver platter. I believe you have a good shot,  IMHO. Certainly worth a try.

When my back claim was finally granted, the radiculopathy for both legs was added at 10% for each leg.  I did not apply for radiculopathy but there was ample evidence in my medical records that I have radiculopathy.  The VA will usually infer radiculopathy, and peripheral neuropathy if it is in the medical records. 

Good advice GBArmy.
🤠..........

The VARO will deep-six evidence only if it is positive toward the Veteran. If there is something wrong with an IMO/IME then they would gladly list it as evidence and flaunt it as the basis for a denial in a proverbial heartbeat. Notice how the timelines are always against the Veteran and the VA takes as long as they want too? IMHO if the VA doesn't start granting more claims sooner then they are finished as a Federal Agency. Non-adversarial means that we don't get a firing squad just for applying for benefits. The VA's "ex-parte" system amounts to a denial or low ball decision along with a take it or leave it attitude. Waiting 5-10 years for any semblance of justice on appeal is abominable, and has nothing to do with the US constitution. Their idea of justice is to let the appeals languish so long that many appeals will just fall to the wayside for one reason or another. Some Vets get just ratings sooner than later but most Vets don't win the VA lotto. In the mean time the VA continues their shell game.

I had an IME 40 years ago that declared I was 100% disabled. The VA just ignored it, and since they did not even have to list evidence in those days you never knew if they even looked at it. I can tell you that the NOD is the most important few lines of script you will ever file in your life. Due to my own ignorance and VA's mailing my decision to the wrong address I missed a chance to challenge the awful decision I got back in the day. I am sure many vets fail to appeal decisions even in this day and age. The VA can deep six an IME/IMO for any number of reasons. You have to consider that a vet who files a mental health claim is trying to prove they are mentally/emotionally ill. This, in itself, is a pretty humiliating experience. Before the concept of PTSD was accepted by the VA mental illness claims were really like a brand of shame. The VA assumes you are shaming to get money. The C&P doctor's assumed the same thing. You might have some VSO who would look at you and say "You look ok to me. Why are you asking for an increase?" Before the internet it was just you and your VSO against the VA with limited knowledge available. I remember my VA doctor telling me I would never be able to get more than 30% for bipolar because I was not psychotic as in seeing things and hearing voices. The army combed out numerous months of treatment records and army doctors failed to even DX conditions I had while at the same time telling me there was no treatment. They lie to a 20 year old kid to save a buck and these people say "Duty, Honor, Country". What honor I would say! Doctor's who lie and misrepresent conditions to make their commands happy so they don't get sent to a combat zone.

Ronnie It is very important that she "dumbs it down", seriously. The VA is always looking to prevent a veteran from getting into the 100 club, so make it really clear.You want a medical opinion that says she has treated you for ...(time).; she has observed a deteriation of ....(new condition) as witnessed by ...(medical records, mri' xrays, etc.) that in her medical opinion based on years of experience and observation, that the ...(technical parts) are at least as likely as not  been caused by ...(service-connected disability.) If she is Board Certified she should state those facts and include her Curriculum Vitae, which is her education, clinical study, any residence she did, where she has worked as a doc, published articles if any, etc. My advise is do a rough draft for her so she has a guideline to follow and offer to pay her a fee ($100.00?, or whatever) for her professional opinion. Also, emphasize that without her documentation and help, it will most likely result in a denial of your sought after disability which will result in significant financial loss to you. I'm not saying this is going to work, but it has a much better chance that what you have now.

Yes, IMHO the more likely than not will help but make sure it says that your condition is caused by or related to your injury in service and that she has reviewed your SMRs or that your condition is more than likely caused by your service connected condition.

ronnieusmc0311 Well it doesn't sound good, I admit. Don't see the reason why a rep would have a dialog with you and then set you up impling a denial. But they really aren't supposed to tell you anything before you get your letter. In any case , you have to see what is in your letter for your next move, as pacmanx1 suggests. It could be supplemental or, BVA. Personnally, I doubt HLR would work, but then I haven't seen the denial letter either. As long as you keep within 1 year, no need for an intent to file; not needed. What happened in the process, going back and forth isn't so unusual. Happens a lot and ebenefits isn't reliable anyway on reporting status, so it is what it is. Get your letter. On your back issues, yes it is supplemental for an increase, and also if you were denied once before. Just remember, you need medical evidence from a doc that they are service connected. Once you get a denial on something, you need new evidence from a doc, not your opinion, that it is "at least as likely as not" s-c, and why. So you want your specialist to have rationale that your condition is related to your L5s1, since that was already shot down.

They maybe deciding your claim through ACE (acceptable clinical evidence) due to COVID-19. Your phone examination was done by a VHA examiner for DBQ information and the VA contracted doctor is assisting in the DBQ but not service connection opinion, the rater may have already established that, but the VHA doctor's DBQ wasn't fully filled out or they didn't know how to rate it so they need a second opinion.
The ACE process involves C&P clinicians completing Disability Benefit Questionnaires (DBQs) using the medical evidence currently in existence and a Veteran's claims file or medical records, supplemented by a telephone interview with the Veteran if necessary, instead of requiring some Veterans to be examined in-person.
https://www.navao.org/wp-content/uploads/2017/01/DMA-Fact-Sheet-16-005-ACE-Process-12-16-16.pdf

Yea, it’s a common tactic I’ve read far too many times in regards to VA claims.
I am convinced that veterans who received favorable decisions on their claims without going to appeal, are more lucky than anything. 

I am going through this right now, I had a mental health phone C&P with a VHA examiner which I thought went really well, now they sent me letter telling me another doctor from the QTC medical service is going review my evidence and  fill out the VA disability questionnaire. The only way I can see them doing this is to develop to deny. They sent me the QTC examiners credentials and they don't even come close to my private psych doctors experience which my doctor fill out a DBQ also. I hope they are only doing this for rating purposes only and not being sneaky. I will let you know how it turns out.

This seems to be a common tactic by the VA, which is why I immediately sought legal representation when my initial claim was denied.
If a veteran goes at it alone, even with an IMO with nexus, submitting the IMO too early just gives the VA more time to come back with a second opinion. The way my attorney explained it to me was like this:
1. Have a board-certified specialist look at your claims file and render an IMO with nexus.
2. Sit on the IMO and submit until the very last, so the VA doesn’t have time to come back and ask for a second opinion.
3. More than likely, the rater or DRO will uphold the previous denial because the VA wasn’t given enough time to refute the strong probative evidence (IMO with nexus) in favor of the veteran.
4. Appeal to the BVA, and at the hearing, point out the ridiculous decision of how the rater/DRO gave more weight from a NP than a board-certified specialist.
VA disability attorneys/lawyers learned their lesson many years ago when they submitted favorable evidence for their clients too early, only for the VA to turn around and ask for a second opinion.

Hello, I have been persuing a VA claim for over a year now in regards to Acid Reflex/GERD. I was medically retired from the Marine Corps for Asthma (30%). When I filled this claim, I was trying to Service connect Acid reflex/GERD to ASthma medications. I had a my private NP-C write a letter and added some information that shows connection between my meds and Acid Reflex. I then saw a VA P.A. for an examination. She wrote against me and the VA followed up with a second opinion from a DR at the VA. When I received this decision, I filed a supplemental claim. I had my private NP-C write a stronger letter with more substance to back up my claim. I also had my Asthma specialist DR write a quick note stating my inhaler "may" cause Acid reflex symptoms (I tried to get a substantial letter but he refused). I also typed a letter stating that I do not know (this is why I did a supplemental) if the asthma meds were the only thing causing my acid reflex/GERD. I stated that I also use Lorazepam for PTSD (service connected), I take Acid reflex medication prescribed from the VA, and I have been taking NSAIDS long term for service connected Cervical neck strain/Migraines. I also stated these symptoms manifested during my Sea service deployment to the gulf of Aden. At that time, I was prescribed Advair for asthma and still deployed. I basically connlcuded with, I believe it may be a combination of these medications that have contributed to AcidReflex/GERD.
So, for the second part. I was ordered to see (I spoke on the phone due to COVID-19) with a DR. from Veteran Examination Services. The DR. asked me some straight forward questions then after 5-10 minutes said "I think I heard enough, I have reviewed your letter and I have all the info I need" (he seemed very nice and attentive). Two weeks later, I call the VA and they say that they received the examination notes but my claim was sent back to gathering info because they are going to ask another DR due make an opinion. This happened last time, so I am a bit worried they are trying to find a way of denying me again...Anyone have experience with something like this? Thank you!

@Buck52 is correct. The symptoms and risks on the medication package inserts are helpful, but you will still need an MD, CRNP, or PA to make the connection.

I'm SC for GERD secondary to long-term NSAID usage. My C&P doc actually made the connection for me and pretty much opined that it is a generally known side effect, but did not point to any specific studies. They did some tests to rule out any other reason. First, they did a heliobacter pylori test to see if it was reflux caused by the bacteria. Next, they did an upper GI, which confirmed it. The VA rated it as hiatal hernia (because it was not bad enough to be considered to be Barret's esophagus.
§4.114   Schedule of ratings—digestive system.
 

I don't have a direct connection but the use of certain meds, IN Combination with Other Meds,  can cause adverse stomach/esophagus problems. So you first have to research the side-effects of the individual meds that you take and  go from there. The point being that it isn't an obvious cause you might be looking at, but the effects NASAID AND others in combination that can cause your disability. No doubt, NASAIDS do cause a lot of problems just by themselves. Research BVA cases and see what comes up on GERD using them.If you have Barrett's syndrome (next level after GERD), that can be rated at 30%. Rated at a current 90%, that could help you on your climb to 100% scheduler.

I do not have that information but I know there are members on this board that have had the same problems.  They will chime in for you.

You can try to fix it and each way has it’s problems like you said.  You can try the supplemental. And then appeal. Which will probably happen. 
Make sure you do your research and pick what fits the best way forward. 
Personally I would go with the presumptive as I has worked for me. 

Are you ready to appeal? If so you can fix it there. Redirect them!  Make sure you have checked all presumptive conditions and put them all In!  
What stage are you at?

Ok so I think this is a case of making it too pointed at one thing.  I am going after mine just as a whole and letting them figure out where it fits.  I believe I have seen a bunch of people from OIF/OEF who have gotten claims for GERD.  either secondary to IBS or a direct connection.  Do you have it documented in your C-FIle of where you got checked for the symptoms of GERD?  If so then this would be a direct connection and not a secondary.  
Check you file and see if you do and try to go at it from the front and not the back.  

@ronnieusmc0311 Yeah, the rationale must be adequate. I found this link below that explains a possible link:
https://www.webmd.com/asthma/guide/heartburn-asthma#2
Of course, the article does not cite any scientific studies.
 
However, I found this scientific article stating oral steroids (i.e. prednisone) have been linked to increased stomach acid: https://www.ncbi.nlm.nih.gov/pubmed/11834680
The "small population" part may look bad unless your NP indicates she feels this is what you have.
Keep in mind too that steroids are great for controlling asthma, but can cause Cushing's either while taken or in long term. 
 
Your condition has to be really bad or has persisted for 5+ years with no persistent improvement for the VA docs to state the condition is not expected to improve.
Phoenix VA has been in the news a lot, especially for the secret waiting list that caused some veterans to die due to lack of diagnosis/treatment.
 
 
 
 
 

@broncovet you can add me to the list of big wins below BVA level.
My initial rating took 5 years and granted 40%, but it took going to the BVA.
In 2013, I won 100% P&T via the DRO with retro going back to 2008 when I joined hadit and started filing new claims. 

Welcome to Hadit!
The VA's justification for denying your GERD claim should be in the rating decision under the REASONS AND BASES section. They are required to tell you explicitly why they grant or deny each claim. If you are not certain, you can post the content from that section for other members to review and offer their opinion, just be sure to redact/omit any personal information.
As you already know, you need these three things to get something SC:
1. Event/injury in service, existing SC disability, or presumptive condition
2. Current diagnosis
3. Medical nexus connecting 1 and 2
Sounds like you already have all three. The only potentially legitimate reason for a denial if you have 1 and 2 would be an issue with the IMO nexus. It might be a case where the doctor did not use the VA's favorite jargon:
100% = "due to", "caused by", etc...
75% = "more likely than not", "most likely", etc...
50% = "least as likely as not", etc...
It could also be weakly phrased medical rationale, failure to review medical records, etc...
I had an IMO denied because the doctor used words like "possibly" or "probably". I talked with a guy a while back who's GERD was denied because the doctor did not test for heliobacter pylori bacterial infection. Once he got it ruled out, he succeeded.
My GERD was SC secondary to 20+ years of daily NSAID use to treat SC disabilities..
Keep in mind if the evidence is equal for and against, the VA is supposed to concede SC per the relative equipoise rules (i.e. benefit of the doubt).
Regarding the asthma increase, make sure the VA gave you the correct effective date. For increases, medical records going back 12 months prior to the date you filed the intent claim can be used to get an earlier effective date. Also, going from 30% to 60% for asthma often triggers a follow up examination about a year later. If this is the case, the decision letter should indicate "your condition is expected to improve". If you got 60% due to the breathing tests, expect them to bring you back for more PFTs. If you got 60% due to 3+ ingested/injected steroids within 12 months to treat asthma, they may almost certainly bring you back. If your doctor notes that your condition is not expected to improve, the rating continues for 5+ years, or if you are 55+ years old, they probably will not bring you back. Just be sure you have your medical treatment records handy. If you send them in proving the rating needs to be continued, they may not bring you back for another year.
You can also explore other disabilities to boost your schedular rating. If you suffer from pain, stress, anxiety, or depression caused by your SC disabilities, consider filing a mental health claim. 
Good luck!
 

On what basis did the VA find your independent medical opinion inadequate to link your GERD to the treatment you take for service connected asthma?  If your private doctor can address that point, you can submit a supplementary review request if you want to try to keep it local at the Regional Office.
If you can’t or don’t want to get new and relevant evidence, you can file a higher level review request with the Regional Office.
If you no longer want the RO to handle it,, you can file a Notice of Disagreement, with or without new evidence, to the Board of Veterans Appeals in Washington, DC.
Personally, we have had more success with the Board correcting the RO’s lack of thoroughness and accuracy with many of my husband’s appeals.  My husband had two DBQ’s by treating physicians completed and submitted for secondary service connection for GERD linked to pain meds taken for service connected conditions.  The RO denied with no C&P exam.  We were under the old system pre-AMA, so we submitted a DRO review request.  This resulted in a Rubber stamp denial, again with no C&P exam.  We then appealed to the Board.  The Board granted the claim for GERD without a C&P exam.