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Chris Barnes
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Posts posted by Chris Barnes
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2 hours ago, LightofSolitude said:
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!
I posted a thank you and I think it didn’t go through.
I want to thank each one of you for the help you are giving me. It’s all overwhelming information. I don’t understand why the VA makes it so hard. I’ve read multiple accounts of people trying to get VA to make an approval. I will keep y’all informed on what happens and I hope I can help any other veteran in the future.
Hell SSN disability wasn’t near the headache as this is.
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On 5/15/2020 at 11:30 AM, LightofSolitude said:
“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.
I had two buddy letters also.
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On 5/15/2020 at 11:30 AM, LightofSolitude said:
“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.
The hand written are from sick calls where I went in for my back during service. The other three are from the “Myhealth” page before I had private insurance. It shows that I still had problems only a couple of months after discharge. Does this show evidence of in service accounts?
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3 minutes ago, Buck52 said:
Great Advice from Sherkthetank1 and GB Army
my 2 cents
I would go face to face with the judge let him/her see just how bad your disability is up close ,no need to freeze up at this point buy now your going to know what to say and what evidence you need., direct reviews are ok but in my opinion its best to go to the Judge yourself or your rep if you trust him/her.
Thanks!
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26 minutes ago, shrekthetank1 said:
you just need to get it summited. you have more time to get this completed as they are not very fast.
On Form 10182 (Board Appeal), which one do I choose?
1. Direct Review By A Law Judge.
2. Evidence Submission Review By A Veterans Law Judge.
3. Hearing With A Veterans Law Judge.
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1 hour ago, 63Charlie said:
You're trying to establish service connection.
Why don't you go see Dr. Ellis and obtain an independent medical examination?
He can provide a solid nexus opinion to support a grant.
You don't need an attorney for this.
IF you have the know-how to file your appeal with the BVA under the evidence docket, and submit your new relevant medical evidence(nexus opinion) on your own, you just saved yourself a boat load of retro money.
I called Dr. Ellis office and I can’t get in until July.
My letter from the VA says I only have 60days from the letter to file an appeal to the board. It’s confusing to me. -
7 minutes ago, Fat said:
Outstanding............
So you have had luck with appealing to the VA board?
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4 hours ago, Fat said:
Ok Chris Barnes, I will take a stab and hopefully this helps.
You seem to satisfy the first criteria of a service injury or sickness.
Next, you need a certified diagnosis of a current back issue. This needs to be confirmed through x-ray, MRI, or nerve conduction test.
The therapy helps with treatment evidence; however you need a diagnosed injury to satisfy chronicity or worsening of condition since leaving military.
I would visit a orthopedic back specialist and bring all your military and physical notes.
If they can confirm a injury (herniation, nerve impingement, degenerative joint disease as evidenced, etc), then ask them to opinion if the initial military injury has a relation with the current diagnosis.
If you can secure all three levels of the evidence, then submit appeal to the BVA.
1. In service injury or sickness
2. Current diagnosis. Preferably by a specialist.
3. Nexus- statement of medical rationale of causation between military illness/injury and current diagnosis.
Thanks for the information Fat. I am currently 100% disabled with social security for my back (multiple fusions and a spinal stimulator). I’m sure my family doctor will write a Nexus statement. I was wondering if I should get an attorney. I read on most forums to not waste my time with one. What do you guys think?
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I just looked on myhealth page and pulled up VA hospital records showing lower back visit only 2 1/2 months after I was discharged. Another for lower back four months later and another VA hospital visit for lower back two years later. After that I finally had insurance and went to regular doctors for it.
By the way the wreck they are talking about happened on my way to drill for activation. They said since it was three days before the activation date, it’s not covered. I was living out of state and I came to town three days before activation and was in a car wreck halfway.
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Just received my third turn down from VA. They say I can appeal to the board. The reason for turn down is because “Not enough evidence to show service connection.” They have records of me having physical therapy and sick calls for my back. Isn’t any evidence some evidence? Have people had good results from, “Appealing To The Board?”
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2 hours ago, Berta said:
" I am disabled by SSN for back issues that started in the Gulf War. "
Do you mean SSDI ? If so this is excellent evidence for your VA claim, however they (VA)must know of the SSDI award and then they must obtain your SSA records.
I assume you mean the SSDI is SOLELY for your back injuries.
"It seems like the VA would look at the SSN decision and it would be an easy decision for them. Less work for them."
That is a very rationale statement Chris -however-rationality and common sense often allude the VA .
VA could have awarded my husband 100%or TDIU in his lifetime, due to his SSDI award solely for PTSD. (He was at 30% in his lifetime)but told my senators and Congressman, that SSA refused to release his records. It was a bold faced lie. I raised hell and got his SSA records sent to the VA.
His signed authorization form was in his C file and I had a copy here as well.
Results was 100% P & T PTSD with a very favorable EED. It was a posthumous award and an accrued benefit to me, his widow. He was dead by then for almost 3 years.
And the PTSD SSDI award was solely based on his many years of VA medical records.
They(VA) had denied at one point, not only because they didn't access his SSDI records, they completely ignored his VA psychiatric records. I went over to see his VA psych and the result of that was that the award letter came soon after that.I already rattled off here before what I did.
Widows sometimes have to take drastic steps to get the VA to do the right thing.
But I don't think they discriminate against us widows- because that goes for too many veterans as well.
I do hope they award your claim, but if they know of the SSDI and do not consider it , then you can file a CUE on their decision ASAP, and turn that all around faster than the traditional NOD, etc appeal scenario.
Thanks for your information. Yes I am totally disabled to never work again. I sent the VA my copy from Social Security with all the details and what all the doctors said about multi fusions, multiple disc ruptures, multiple bulged disc and spinal stimulator with battery. Total disabled 100%. You would thing the VA would make the same decision!! Thanks again. Still waiting on my letter.
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1 hour ago, Martell said:
In my claims case C&P exams have created obstacles toward a favorable decision. Since 2006 when I filed my first claim C&P exams have been less than favorable; I have been examined numerous times and every exam has led to a claim denial. In the VA's SSOC letters stating reasons for denial their diagnosis to my service connected injuries have been quite the opposite to the orthopedic Nexus and support statements which clearly and accurately describe the severity of my condition. I have had three reconstructive foot surgeries (left and right feet) which have left me with severe and limited range of motion, severe chronic pain due to the joint fusion of various joints, the neuralgia/neuropraxia pain from the multiple incisions, and the hardware implanted (screws, plates and rods). I recently had an additional C&P exam, again, it was inadequate, it just involved a quick visual observation and manipulation of my feet, this has been the routine for the dozen or more exams I have had at the VA hospital.
There were three exams in which the examiner mentioned it would only be a question and answer exam, then months later I receive the SSOC letter indicating a pseudo diagnosis and denial of claim. I have submitted surgery reports, x-rays, ct-scans, MRI scans, nexus letter and additional support statements from my orthopedic surgeons; statements which illustrate the erroneous and less than accurate C&P diagnostic reports from the VA examiners. My VSO is clueless in my opinion, so in my case with C&P exams it's been deny, NOD's appeal, more C&P exams, deny, re-appeal and so on and on. I'm considering continuing the process with an attorney, I just think I need another pair of eyes to look at my claim. It's very hard to get a fair rating for service connected injuries, they give you 10% and then you have to battle for more. I am a combat Vet, 18 month tour in the NAM, 70% PTSD, 10% for bilateral physical injuries. I think I'll continue the process with an attorney. My combined 80% rating was obtained by going to Psychiatrist, orthopedic surgeons outside of the VA.
It’s amazing they do these types of things. It seems like getting an attorney is the only way to go. SSN disability was the same. I had to get an attorney and now I am 100% disabled with them. It seems like the VA would look at the SSN decision and it would be an easy decision for them. Less work for them. I sure hope you have better luck. I’m sure I’m not done fighting them. Thanks
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This is my third time applying for disability for major back disability. I am disabled by SSN for back issues that started in the Gulf War. I was rejected twice from VA (they said no proof it was service related). I finally at the local VA found records that do show several sick calls and physical therapy done back then.
This last time I put in for disability, they made me do a C&P exam. I am now waiting on my letter. Since they did a C&P this time, does that mean I will probably get a favorable decision?
Appeal To The Board
in Appealing Your Veterans Compensation Disability Claims NOD, DRO, BVA, USCAVC
Posted
Update:
VA in my town finally opened back up and I had an appointment today. Absolutely no help. I knew more from learning things from you guys than the guy I talked to. He is apparently just a “Filler out of basic forms” person. Only been on the job for six months and two of them he was off because of the virus. Soooo frustrating! I can’t believe the VA makes things so tough.