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Confusedvet1

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Posts posted by Confusedvet1

  1. 1 hour ago, broncovet said:

    It sounds like you did/should appeal to the BVA, the effective date of your 10 percent rating.  However, its possible you had a scar which just started hurting when you reported pain to your C and P examiner, so you may need evidence to support you had pain with that scar since 2013.  Medical evidence.  This "may" require an IMO/IME to opine that you had pain with this scar since 2013. 

    A Veteran is competent to describe his or her pain, however, so your testimony, if you have had pain since 2013 may suffice.  There was a case where the CAVC said something close to a Veteran is competent to describe surroundings and events, and the VA can not disregard the Veterans testimony based solely because the Veteran is an "interested party" in the outcome. 

    This does not mean you can self diagnose your condition, but it can mean you can report that you were in a car accident, and suffered a leg injury.  The doctor has to diagnose a fracture, and a link to service, but you are competent to describe you were involved in an auto accident, and whether or not you were treated for injuries. 

    As far as a "duty to assist", the Va is not required to "go on a fishing expedition" and rate you for all conditions that may be SC.  The burden is on you to apply for and seek benefits for each condition.  The regulations state that, to be an informal claim it has to meet these criteria.  (NOTE informal claims were ended in Feb. 2015, after that, all claims have to be on the form prescribed by the secretary):

    1.  The informal claim needs to be IN WRITING.  Telling the doc, "I wish to also apply for arthritis" is insufficient, UNLESS the doctor writes down your request. 

    2.  The Veteran must "specify the benefit sought". 

    3.  This applies only to claims FOR INCREASE, and pre supposes you have already filed a "formal claim" 21-526.  YOUR first claim must be on the form. 

          You can go through your file to see if you can identify where/when you specified "the benefit sought" where it was written down to see if you can qualify for an eed based on the fact you applied much earlier, with an informal claim. 

          I once got tinnitus effective date because I spoke on the phone with a VA employee.  I mentioned to the employee I wanted to apply for tinnitus, that I did not know it was possible to apply for that, previously.  The employee "documented" my phone call, in writing with the date on it.  Later, I got tinnitus (10 percent) back to that date because I satisfied all 3 elements above, required to establish the "claim date". 

    Thanks for taking the time to respond. This whole thing is kind of a cluster lol. 

    I filed originally for forearm, wrist, hand and thumb since that encompassed the while area effected. I complained of lots of pains which were consistent complaints. When the BVA service connected it my RO gave me 10% based on pain from elbow that was mentioned in the original CP exam. I never had surgery on elbow and they ignored all my complaints in my records dealing with forearm, wrist and hand pains. I haven't had any new pains and the pains determined to be scar pain during exam have been there since I filed claimed. So maybe that's what I need to bring up during my appeal? I'm at least allowed to say the pain has been the same and consistent. There are a lot of complaints of pain even predating 2013. As I mentioned before as well this decision only used the new CP exam as evidence even though BVA said they needed to review additional medical records VA had in there possession that they never considered.

     

    I understand why they did what they did too. I read the rating guidelines. Basically it says NOT to rate scar pain unless the pain is reported as happening during the exam. It says not to rate it 10% based on veteran complaints only since it's subjective evidence. Even though pain at anytime is really subjective evidence. 

     

    For the hernia it's still sounding like mentioning it during appeal for scar effective date is a good idea. Best case scenario RO grants it and worse case that should be informal claim and lock in a effective date.

     

  2. This is from BVA. My SSOC says they only considered the new exam and not any of the information the decision says they needed to consider. Also I'm assuming my hernia would be considered soft tissue damage since the tissue holding muscle in no longer does. So I'm thinking that means hernia should be added with a 2013 effective date?

    Entitlement to an initial compensable rating for right wrist surgical scar, status post tendosynovectomy, is remanded.
    
    The Veteran was most recently afforded a VA scar examination in February 2015. The examination report, however, does not include all necessary information to properly rate the Veteran’s right wrist scarring under the appropriate criteria. For example, only the length of his right wrist scar was provided and no information was given as to whether there was any underlying soft tissue damage. Therefore, a new examination is necessary to ascertain the current severity and manifestations of the Veteran’s service-connected right wrist scar.
    
    Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Medical Center (VAMC) in Canandaigua, New York/VA outpatient clinic (VAOPC) in Rochester, New York and are dated to August 2017. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them.
    
    Lastly, following a February 2016 supplemental statement of the case, additional evidence has been associated with the Veteran’s claims file by the agency of original jurisdiction (AOJ) that is relevant to the issue of entitlement to a higher initial rating for the service-connected right wrist scar. This evidence includes VA treatment records from the VAMC in Canandaigua, New York/VAOPC in Rochester, New York dated from December 2015 to August 2017. This relevant evidence has not been considered by the AOJ and no waiver of initial AOJ consideration of this evidence has been received. See 38 C.F.R. § 20.1304 (c). Hence, the Board is required to remand the right wrist scar issue for issuance of the necessary supplemental statement of the case.
    
    The matter is REMANDED for the following action:
    
    1. Obtain the Veteran’s outstanding VA treatment records from the VAMC in Canandaigua, New York/VAOPC in Rochester, New York for the period since August 2017; and all such relevant records from any other sufficiently identified VA facility.
    
    2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right wrist scarring. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 
    
    Specifically, the examiner should report the nature and severity of any right wrist scarring, to include whether any scar causes any limited motion or loss of function. Each scar size (including BOTH scar length and width) and whether any scar is superficial, deep, associated with underlying soft tissue damage, nonlinear, unstable, or painful should also be noted.
    
    To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected right wrist scarring alone and discuss the effect of the disability on any occupational functioning and activities of daily living. 
    
    The examiner must provide reasons for any opinion given.
    
    3. After the above development, and any additionally indicated development, has been completed, readjudicate the remaining issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case that considers all additional relevant evidence (including the VA treatment records from the VAMC in Canandaigua, New York/VAOPC in Rochester, New York dated from December 2015 to August 2017, and all additional relevant evidence received since the February 2016 supplemental statement of the case) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review.
    

     

  3. 1 hour ago, shrekthetank1 said:

    They are so strange about the way they word things.  I would appeal the effective date and you can appeal the hernia.  I have had a few time they are not sure what they are talking about and you have to appeal to get someone to word it correctly.  I would keep pushing it forward until it is where you feel it should be.  

    Ok so even though I never technically filed for hernia should I just include it in my appeal for the scar effective date? Like I said too the examiner said she would note hernia. I don't have access online to exam notes though since it was through a 3rd party VA contracted with.

  4. 14 minutes ago, shrekthetank1 said:

    You can always try, but the issue is if you don't show it somewhere in your records where you complained about pain or something like this then they will go with when you did.

    You can always fight with lay statements to try and show it as you and those around you can fill out.  I always try to document everything with the VA as it will save you in the long run.  I would go through your C-file and look as it is very likely you did complain about it at some point.  Then use that information to fight it.

    I know 100% my records complain of pain in those areas. In fact my BVA decision pointed out last time they didn't even consider relevant medical records they had. I just double checked rating decision I got today and the only evidence they considered was the exam this month. So that shows they didn't even follow the remand instructions. So I guess I have that going for me.

     

    Any clue on the hernia? Should that have come up during a these exams or do I need to file a new claim for it? The hernia wasn't called a hernia in service but the manifestation was there in service. Only a few years ago was hernia confirmed during a biopsy of site to see why I still had bulge. 

  5. Hello,

    I would really appreciate some guidance on next steps. Please let me know if I forget any useful information. I had 2 items go to the BVA. I had a claim for tenosynovitis of right hand/wrist/forearm which was originally denied connection and the other issue was for scar. 

    The BVA said my tenosynovitis was service connected so that was taken care of.

     

    The scar was remanded because of a incomplete c&p exam. Pretty sure when I filed NOD I also said I did not agree with the exam because I complained of scar pain and the examiner never mentioned it at all. So my initial rating for scar was 0%.

    Like I said I filed NOD after initial 0% assignment. Couple weeks back they gave me another c&p exam like the BVA ordered. This time the examiner actually wrote down that I complained of pain so they rated me at 10%. However they changed my effective date from 2013 to Oct this year because the previous exam didn't mention pain

     

    I'm obviously going to appeal this again but what do I say? What's best way to go about it?

     

    Second part of question is about VA duty to assist. I had no idea there was a rating possible for hernias. Because of the surgery for tenosynovitis which is service connected and where the scar is which is service connected I have a hernia where muscle bulges through and raises the skin. That hernia has always been there. Should the VA have included that? Any examiner can see it clearly when looking at forearm and my last c&p examiner for scar said she would note it. Can I get that connected with a effective date of 2013 which is when the tenosynovitis is and my original 0% scar was?

  6. Hello,

    I was hoping to get a second opinion on a potential claim. While in service I had a radical tenosynovectomy which is service connected. I am also service connected for the scar from said surgery. That surgery caused a hernia on my forearm. The size of muscle coming through is about 2.5 inches long by about 1 inch wide.

     

    I was wondering if this should be a pretty straight forward claim or what I might need to consider or prepare for?

     

    I believe this claim would fall under 38 CFR § 4.73, Schedule of Ratings – Muscle Injuries, Diagnostic Code 5326.

     

    Seems pretty straight forward to me but again it's the VA and there always seems to be something to complicate things.

     

    Thanks

  7. @GBArmy It doesn't restrict it I'm the sense that if I don't do fine motor detail I'm good. However fine motor detail and lots of use causes the range of motion die to pain to pretty much make hand unusable until I stop and rub it and give it 20 minutes or so to be better. It's caused me to drop parts where I work worth a lot of money.

     

    @broncovet I had tenosynovitis in service. They did surgery which caused the hernia and scar in question. I originally filed for forearm condition, wrist condition, hand condition and thumb condition since those were all the areas effected. They were lumped together. Initially the tenosynovitis was denied but granted 0% for scar. I have CP exam coming up for scar and BVA granted me SC for the tenosynovitis. My RO rated the tenosynovitis at 10% for my elbow. At my CP exam for tenosynovitis over 5 years ago I said it would sometimes get worse when I bent my elbow. 

     The RO used the 5 year old exam for my rating decision. They didn't consider all my complaints about hand and wrist at all and my hernia is huge and you can't miss it when looking at forearm. 

  8. Hello,

    I have a CP exam coming up soon for my dispute over 0% rating for scar. Is it possible to get 10% effective the time of scar rating for a hernia? I have a large forearm hernia below scar that I was told can't really be fixed. 

    Also what is a painful scar? After surgery there was 1 obvious adhesion at wrist that surgeon had to break by bending wrist back. I think I have more at base of thumb because it's enlarged and restricts motion but not enough to be rated under range of motion. However repeated use does cause pain where the surgery was and adhesions are scar tissue.

     

    Thanks

  9. Thanks guys. I saw a neurologist a few months back because I had a couple instances of seeing horizontal lines across vision. I think he said he thought it was an optical migraine of that's a thing. 

     

    In service like I think I said before I noted on exit form that I was getting I think 2 headaches a day for few months. 

     

    My RO confuses me a lot. I know I should probably start new topic but here is another issue I ran into.

     

    I filed for service connection for a forearm/wrist/hand/thumb a long time ago. I had swelling in forearm 3 years into service. They did surgery and cut into my hand and wrist as well. Turned out to be dense fibrosis and now I have a hernia there and pain and weakness in hand when I use it a lot. They denied me saying since I broke my arm in 6 grade it was a natural progression. I had VA orthopedic surgeon say he didn't think the broken arm and condition in service were related because of a 10 year difference in injury and symptoms. VA said the PA who did CP exam was more credible. BVA agreed with me and granted service connection. My RO rated me at 10% because during CP exam I said bending my elbow would sometimes cause pain too. So I'm rated at 10% for my elbow when surgery was on forearm into hand. Completely ignoring all my hand and wrist issues. To top it off before granting me SC they had given me 0% for the surgical scar. I appealed that and BVA said they needed to do another exam because I wasn't given a proper one so that issue was remanded. 

     

    So when my RO gave me 10% for elbow they gave me 0% again for the same scar I had at 0% which was remanded for improper exam which I still haven't had yet. So I have 0% twice for same thing. 

     

    It's definitely frustrating to say the least.

     

     

  10. Thank you both. I know I put it on my exit medical form about headaches. I don't know if it's documented in there but after a run I had a bad migraine with radiating pain to left arm that didn't go away until next day. I told person checking me in at base hospital for a stress test that was ordered for unrelated issue and got yelled at more not saying anything when it happened. I just don't know why they didn't give me 0% rating? I've had issues with them getting really bad but I fight through it. Heck the day I got out of hospital for possible sepsis I went to work after taking shower. That's after 3 days of not eating or being allowed to walk and my job consists of me standing all day and walking.

     

    That may be my problem as well as I push myself to hard.

     

    I'll definitely file NOD and see what happens.

  11. Hello,

    I got a denial for headaches and I'm not sure what it is saying. When I read it I think it's contradicting itself. Could someone please help me understand what it says? Also there are a lot of other times I reported headaches after service which are all in my VA medical records that they did not mention in denial so I'm thinking they didn't actually read my file?

     

    This is from the letter.

     

    Service connection for headache condition.
    Service connection may be granted for a disability which began in military service or was caused
    by some event or experience in service. (38 CFR 3.303)
    While your service treatment records reflect complaints, treatment, or a diagnosis similar to that
    claimed, the medical evidence supports the conclusion that a persistent disability was not present
    in service. (38 CFR 3.303)
    We did not find a link between your medical condition and military service. (38 CFR 3.303)
    The evidence does not show that your disease developed to a compensable degree within the
    specified time period after release from service to qualify for the presumption of service
    connection. (38 CFR 3.307, 38 CFR 3.309)
    Service connection for headache condition is denied since this condition neither occurred in nor
    was caused by service. (38 CFR 3.303, 38 CFR 3.304)
    Favorable findings identified in this decision: Service treatment record dated January 26, 2005
    and July 25, 2007 shows headaches. Medical record dated January 13, 2020 from Canandaigua
    VA Medical Center shows headaches. You have sufficient service to meet the minimum
    requirements for presumptive service connection. The claimed disability is a chronic disease
    which may be presumptively linked to your military service.

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