Inferred Claims

[free_spirit_etc]

I previously had asked about filing a CUE for a cervical condition my husband claimed. I have found I cannot submit a CUE for the condition - but am wondering if it can be raised as an "inferred claim" for accrued benefits.

My understanding is that inferred claims for increased ratings for conditions that have already been service connected that have not been recognized by the VA - and addressed - are still "pending claims"

Correct me if I am wrong on that.

My husband claimed his cervical condition at retirement. Though his SMR's showed he had a cervical injury in service - he was denied SC as both the RO and BVA stated he did not show a "current disability."

His first C&P in 1999 said his x-rays didn't show ANY disability.

He continued to complain of chronic neck pain - and his C&P in 2002 found only a slight problem at the C4-C5 level - which they still didn't think was enough of a disability to be a "current disability" to grant him SC. I have NO idea why they didn't grant the service connection and rate it at 0 percent at that point, instead of denying SC based on the "No current disability."

In 2003 - the C&P exam for headaches --for his "Desert Storm" C&P denied him SC for the headaches because they C&P examiner indicated they were a diagnosed illness (therefore not compensable under Desert Storm as an undiagnosed illness).

THe C&P examiner indicated the headaches were caused by osteoarthritis of the cervical spine - which affected C1 - C7 - but by some miracle happened to appear the greatest at the C4-C5 level with hypertrophic spurs, significant restrictions in flexion and extension, etc. etc.

My question is:

As my husband WAS Service Connected for DEGENERATIVE ARTHRITIS in 1998 - based on the arthritis that had manifested in his lower back from a low back injury in service - wouldn't a VA report that indicated that arthritis affected ANOTHER joint that had a documented injury in the SMRs raise an INFERRED claim for an increased rating for ARTHRITIS - as now affecting two or more joints?

So if the VA failed to recognize the inferred claim for an increased rating for degenerative arthritis (and just denied the SC of an undiagnosed illness) - would this still be a "pending claim" that is before the VA?

Free

[Berta]

Free- I take exception to your statement:

"So the VA might consider them (the base physicians) a bit more trustworthy than someone you hire just to write an opinion."

I have spent 4000 bucks already to get a proper diagnosis of Rods death- I have a letter and evidence already prepared with a check for 1750 attached to it for another IMO if needed-the VA has never considered these IMOs yet but are reviewing them now-

I will spend even more if needed-the pending decision will determine what I need.

Many vets here have gotten awards only because they obtained IMOs.

In my case the VA could pay me refund on funeral expenses (a small amount)and maybe I would get a better delimiting Chap 35 date-as

there is no precedent established as to whether they have to refund my offset due to direct SC death-

I didnt file this claim nor spend money on IMOs for any big retro-it was for Peace with Honor.

Dr. BAsh's IMOs gave me that-the VA still owes Peace with Honor to my husband and I dont care what it costs to get him a proper diagnosis from the very system that

owes him that via their mission statement.

I feel that the trust factor- and hiring someone 'just to write an opinion'

in my case- was the only way to get a proper and thorough review of Rods evidence and medical conditions.

Even though the VA conceded they had misdiagnosed him- they never assessed what initial condition had caused his disabilities and death.

My IMO doctor could have saved his life.

You dont have to prove what your husband died from- you do have to prove it was related to service.

Since your VSO seems to feel the records reveal the evidence needed for that-

he obviously knows more about this and sees strong points in the documentation that we cannot possibly assess here.

The VA is quick to state to widows that they are not medically competent enough to opine on service nexus.They are quick to list "internet printouts" on a SOC and then never consider them as evidence or- they will state the printouts are not relevant and specific to the disability or death of the specific veteran.Also they are quick to get a VA "expert" to opine on the claim and you have to knock down that opinion yourself if it does not agree with your position.

And of course they will state again you are not medically competent to opine on what the VA expert says.

I have an entire file cabinet drawer devoted to my 1995 claims.I didnt have an IMO and fought them for almost 4 years.

This is only my opinion as to getting an IMO in your case.

But then again I had vet reps who didnt have a clue and it seems your rep is very supportive of the evidence you already have so it must be very good.

Edited June 19, 2007 by Berta

[john999]

Free

The money you spend for a good IMO is money well spent. The Veterans Benefits Manual almost always encourages vets to get private medical reports when applying for service connection, and especially increases or for secondary conditions. I went from 30% to 70% IU based entirely on a IMO.

[free_spirit_etc]

I am sorry you take exception to my statement. And I have nothing against IMOs in general. I realize they can be very neccessary. I do have an issue with the fact that the system is set up in such a way the vets (some on very limited resources) having to pay for an opinion in cases where such an opinion should not be needed.

For instance - there is case after case of cancer granted based on the length of time it takes cancer to grow. Now if the time frame is close - then you have difficulty proving SC - but if you have a slow growing cancer diagnosed within a few years -- SC has been granted without a lot of problem. If the time frame is close - you would have a bigger problem getting SC.

However, I was reading a BVA case where the VA medical "expert" stated that it is standard in the medical field to consider that cancer's "onset" was when it was diagnosed. So the claim was denied. Now to succeed - the vet will have to go out and pay for a doctor to challenge the VA expert's off the wall statement.

In my case - I would just be paying someone to write an opinion. The evidence is already there. It is not all that complicated. I don't need someone to dig through all the records and look for medical connections. It is all right there - straight up.

I haven't got the VSO yet. But I did talk to them. I actually asked them for a referal to a doctor who would write an opinion. They said that the VA might accept what is written in the doctors notes.

The problem with the doctors notes is they didn't STATE it was their opinion. However, I am pointing out to the VA that they "opined" on the cancer in their notes.

As they did not give reasons and bases in their notes - I submitted evidence to support what they documented in the notes.

I didn't just submit an internet printout about the cancer and try to make the connections myself.

Where one doctor had stated the doubling time of adenocarcinoma was 180 days and one stated 6 months -- I then submitted evidence from several reliable sources - and pointed out this supported that what the DOCTORS said is the Standard Medical Opinion in the Field.

I realize this might not be successful - especially if they don't read it.

And I realize that I might still need to get an IMO at some point.

My husband wanted to submit what we had - and see if they accepted that - and if they didn't THEN go get an IMO.

I do think as long as the medical information I sent is backing what the doctors put in their notes - and not purporting a new theory - that I should be on solid ground for an appeal.

I think if they get a medical opinion that states his cancer probably did not start in service that does NOT address why they would think a cancer that typically takes 15 - 17 years to grow to 3 cm would have done so in less than two years -- I can at least get a remand. And then, of course, I would probably need to get a strong IMO.

It frustrates me because the Base doctor is the one that told my husband that his cancer started long before he got out of the service - and he did document the standard doubling time - and the number of doublings required to reach 3 cm. But he didn't come out and STATE "this cancer probably started in the service." He WAS willing to write such an opinion when we asked - but then told us the base attorney told him that he couldn't. But he did let us have his notes - which still should be helpful.

So yeah.. it bothers me that I should have to pay someone to write an opinion when the case should not be all that complicated.

The evidence is THERE -IF they want to grant it. And I have seen BVA cases that you could tell they wanted to grant and they listed very little evidence to grant it. And I have seen BVA cases where the person had tons of evidence - and they picked it apart piece by piece.

I HAVE seen BVA cases where they took statements in the doctors notes to be credible and probative -- and stated that they considered them so because the doctor made the statements in the notes - and did not make the statements merely for the person to get benefits.

So I did point this out in my argument.

1. The doctor said the standard doubling time is 180 days in their notes.

2. All these reliable sources state the same thing.

3. Therefore the doctor statements in the medical record are based on established medical principles.

4. The evidence should be given credible weight as the doctor was not making these statements solely for the purpose of me obtaining benefits.

It would be much easier if they just came out and said "In my opinion___ because _____"

And in my opinion -- that would be ALL I need. A doctor who did not get into all the complex what ifs -- but a very simple direct statement.

At this point - I am more concerned that if I get a more complicated IMO -it might harm the claim more than help it. The claim is pretty straighforward. But if all kinds of complex issues start getting added to the mix - and the doctors start debating the more complex issues -- the whole MAIN POINT can get lost. And I think the VA is good at getting off on the side issues to side-step the main point sometimes.

I have contacted a couple of doctors about an IMO - and I will continue to research on that issue -- because I want to know exactly which direction to move when and if the time comes.

But I would just be paying someone to write me an opinion - because the evidence is really already there. Maybe that is why they have failed to acknoweldge and address his claim that the cancer started in service.

I was hoping to hold off and see if they accepted it - and if they did not - then I would probably get an IMO to address the opinion THEY paid someone to write.

I am not opposed to IMOs. I am opposed to the notion that many vets have to pay for them in cases where the should NOT need to get one. I do not think all IMOs are created equally. And I do want to make sure that if I pay for one - it is one that will help my case.

Free

Free- I take exception to your statement:

"So the VA might consider them (the base physicians) a bit more trustworthy than someone you hire just to write an opinion."

I have spent 4000 bucks already to get a proper diagnosis of Rods death- I have a letter and evidence already prepared with a check for 1750 attached to it for another IMO if needed-the VA has never considered these IMOs yet but are reviewing them now-

I will spend even more if needed-the pending decision will determine what I need.

Many vets here have gotten awards only because they obtained IMOs.

In my case the VA could pay me refund on funeral expenses (a small amount)and maybe I would get a better delimiting Chap 35 date-as

there is no precedent established as to whether they have to refund my offset due to direct SC death-

I didnt file this claim nor spend money on IMOs for any big retro-it was for Peace with Honor.

Dr. BAsh's IMOs gave me that-the VA still owes Peace with Honor to my husband and I dont care what it costs to get him a proper diagnosis from the very system that

owes him that via their mission statement.

I feel that the trust factor- and hiring someone 'just to write an opinion'

in my case- was the only way to get a proper and thorough review of Rods evidence and medical conditions.

Even though the VA conceded they had misdiagnosed him- they never assessed what initial condition had caused his disabilities and death.

My IMO doctor could have saved his life.

You dont have to prove what your husband died from- you do have to prove it was related to service.

Since your VSO seems to feel the records reveal the evidence needed for that-

he obviously knows more about this and sees strong points in the documentation that we cannot possibly assess here.

The VA is quick to state to widows that they are not medically competent enough to opine on service nexus.They are quick to list "internet printouts" on a SOC and then never consider them as evidence or- they will state the printouts are not relevant and specific to the disability or death of the specific veteran.Also they are quick to get a VA "expert" to opine on the claim and you have to knock down that opinion yourself if it does not agree with your position.

And of course they will state again you are not medically competent to opine on what the VA expert says.

I have an entire file cabinet drawer devoted to my 1995 claims.I didnt have an IMO and fought them for almost 4 years.

This is only my opinion as to getting an IMO in your case.

But then again I had vet reps who didnt have a clue and it seems your rep is very supportive of the evidence you already have so it must be very good.

[free_spirit_etc]

Thanks John. I would agree that the money for a good IMO would be money well spent. That is why I am researching IMOs a lot - to make sure if I get one - I get a good one.

Free

Free

The money you spend for a good IMO is money well spent. The Veterans Benefits Manual almost always encourages vets to get private medical reports when applying for service connection, and especially increases or for secondary conditions. I went from 30% to 70% IU based entirely on a IMO.

[carlie]

Free,

This part you posted:

"But I would just be paying someone to write me an opinion - because the evidence is really already there."

That's the part called a nexus as I'm sure you know - and yes a medical doctor has to write it.

You can send all the internet stuff you want on this but I personally do not think it will help your claim.

jmho,

carlie

[free_spirit_etc]

It was my understanding that the nexus could also be shown in the doctors notes.

I am doing - and have done - research on IMO's.

Two of the main things that have stalled this are:

1. IF the VA will grant service connection on the medical evidence in the file. I am entitled to accrued benefits as well as DIC. If they grant SC - and base that on an IMO submitted after his death - then I get DIC but no accrued benefits. Of course, I could appeal that - and try to build a case that the IMO only supported the evidence IN THE FILE at the time of his death. But I am not sure how successful that would be if they use the IMO as the basis for granting SC.

If I do not submit an IMO now - I run the risk of being denied. But I can still submit one later - at the beginning of the appeal - the remand, whatever -- AND I would have the SOC telling me exactly why it was denied so that could be addressed in the IMO. And I still would probably want the IMO to focus on the fact that the evidence to grant SC was ALREADY in the record.

If I submit an IMO now. I run the risk of being granted DIC but being denied accrued benefits - as the decision was not made based on the evidence in the record at the time of his death.

A couple years of accrued benefits for 100% SC is a substantial amount to risk - IF I can afford to wait and see if I can get the claim approved without having to risk it.

I might even risk losing it if the VA decides THEY need a medical opinion. I don't know.

But I was trying to keep the focus on pointing out that the evidence to grant SC is already in the record.

If not sending an IMO right now would cause me to lose DIC - and I wouldn't have a chance to redeem that choice - then I would send an IMO in a heartbeat.

But if sending an IMO RIGHT NOW causes me to risk losing the accrued benefits claim - I would prefer to wait and not take that risk.

2. I have contacted several doctors about an IMO - but they either:

a. Don't want to get involved.

b. Want to complicate the issue.

I wish I could find someone who would write a fairly simple opinion - such as what is already implied in the medical records.

But the one that I have talked to about building a case wanted to base the case on the LONGEST doubling time of cancer, or adding this that and the other.

To me -- if using the standard doubling time of the type of cancer - or even the SHORTEST doubling time of that kind of cancer would show SC - I don't know why you would risk trying to use the longest time.

The STANDARD doubling time of pulmonary adenocarcinoma is 180 days. At that rate it would take 17 years for the tumor to reach 3 cm. My husband's tumor was that size two years after he retired (28 years of service). If you use the LONGEST doubling time as an argument - it conflicts with all the evidence already in the record, can lead to all kinds of arguments at the BVA level as to whether the longest doubling time is an accurate measurement, taking the focus off the fact that even the standard or shortest doubling time would make the cancer present for longer than two years -- and possibly cause the VA to not take anything they say as credible. I am also hesistant about the this, that and the other speculations - which again, I think could take the focus OFF the main argument - Based on standards of medical practice - THAT kind of cancer does not grow THAT big in THAT time frame. It is not even close. We aren't talking about the possibility that a cancer grew twice as fast - and grew to a size in two years that most cancer takes four years to obtain. We are talking about a 2 year vs. 17 year DIFFERENCE!

I realize in some cases - a lot of connections have to be made. But I think in this case - the more simple I keep the IMO - to where it is only addressing the MAIN argument - without adding other things for the VA to argue with it about - the better.

IF they did not grant SC with a simple, straight forward IMO - THAT would be the time to create the additional arguments. But I think adding the additional arguments early - or creating an argument based on longest doubling times (when that wouldn't be neccessary to support the claim - and MIGHT harm the claim) would not be the wisest course of action.

I realize my course of action might take longer. However, the biggest thing I risk losing is time. I will still get the retro once I get the claim approved. I think I risk losing more by moving too quickly with an IMO I am not comfortable with.

I have several emails out to doctors now in regard to an IMO - I want to already have my plan to get an IMO ready to move on whenever it is neccessary.

Perhaps they won't grant SC based on the evidence that was in the record at the time of his death. If they don't - then I will lose my claim for accrued benefits. But on chance (however slight that may be) that they DO grant SC based on the record at the time of death - I stand a lot to gain to try to make that happen.

Free

Free,

This part you posted:

"But I would just be paying someone to write me an opinion - because the evidence is really already there."

That's the part called a nexus as I'm sure you know - and yes a medical doctor has to write it.

You can send all the internet stuff you want on this but I personally do not think it will help your claim.

jmho,

carlie