Duty To Assist Development

[BMCS00]

I was reading over my rating decision letter, which is dated April 17, 2001. Several of the items I put in claims for service connection were deferred.

Under the 'analysis' heading for each deferred item, it says The issue of compensation for left foot pain is deferred for the following information: duty to assist development."

What does that mean, 'duty to assist development'. The claim is clearly beyond a year old. Does this leave the door open for me to submit new information and, if rated, be backdated to the date of my initial claim? I'm really not clear on what they mean by duty to assist development. I do know some new regs came into effect back then concerning duty to assist, but it was all new to me. Was the onus on me to be in touch with the VA about the deferred items, or should I have heard from the VA? I goofed and did not use a service organization for my initial claim ... but did on my 2nd go-'round last year.

I've had ongoing care in many of the deferred items, so I certainly do have 'new information' to submit. If anyone can shed some light or offer an opinion, I'm all ears.

Thanks,

--Jim

Life is good!

[BMCS00]

BMCS00,

If you have an appointment to see the C-file, I would recommend that you call your VSO (if you have one) and see either he/she can be present when you review the file or if he/she can arrange for someone from that organization be there with you during your review.

You will not be left alone with the file and you may feel rushed by the clerk who is present.Also the VSO's are used to looking through file for VCAA forms etc. It might be a good idea to have some help on that day.

Just an idea.-Jangrin

Wow, that's a great suggestion. I'll talk to my DAV rep when I see him on Tuesday. I wonder if he can get a copy of the whole thing any quicker for than I can. I am pretty good an not letting people trying to pressure me to get through. I'm actually also pretty good at getting people like that to do stuff for me. Never went up against a VA employee though, could be challenging.

[luvHIM]

BMC, I think your question on what is meant by "deferred" has pretty well been answered and I agree with the responses given.

But you stated/asked:

"Aside from the deferred items, I have 3 separate diagnosis' of plantar faciitis. I also had asymptomatic pes planus on my entry physical in 1977, and again in 1978. After several weeks of boot camp I have entries in my medical record about foot pain. Throughout the course of my career I have several more entries concerning my feet (plantar faciitis, foot pain), orthotics prescribed several times. Bilateral foot pain was one of the deferred items.

Was "Bilateral foot pain" the way you listed the condition when you submitted a claim for entitlement to have your foot condition service connected? Or is that just the way the VARO addressed it in the decision letter?

I know I don't have pes planus acquired, but I do have a condition that was aggravated by my service. I have had continued medical care for it since retirement. So I think fits the requirements for service-connected aggravation of a condition. Since it was asymptomatic at the time of entry, I'm thinking there shouldn't or may not need to be a deduction, since there were no symptoms of trouble with my feet ... am I on track?

You are stating that you had "no symptoms of trouble with my feet" at the time of your enlistment...correct? If so, then yes, you are on track. However, with a claim for service connection due to aggravation of a pre-existing condition the evidence must show that a doctor believes "it is as least as likely as not" that your current condition was worsened by your military service. So, a doctors medical opinion is going to be crucial to your claim, especially since the condition pre-existed service (yes, even though it was dormant, symptomatically speaking, at enlistment). Otherwise, the VA will definitely seek ways to deny on the basis that it pre-existed service.

I can't stand for more than 10 or 15 minutes without the need to sit down and relieve the load on my feet. The pain caused by DDD in my L4-L5 & L5-S1 region also limits my ability to work. Put the two together and the only thing I'm able to do is operate the remote for my tv from the only piece of furniture that I can be comfortable in - my recliner. I think I'll put in for IU this time around. I haven't been able to work since May 07, being on my feet for 5 to 7 hours a day part time, I was a wreck that night and he next day. I'm done now."

Due to your DDD condition, the plantar fasciitis could actually be service connected on a secondary basis. I also have plantar fasciitis and Achilles Tendonitis bilaterally. I can really empathize with the chronic pain syndrome caused by the back and feet issues. Oddly, we suffer with degenerative arthritis in the same anatomical regions of the spine. However, I also have cervical, and thoracic pain issues.

At any rate, once you gain better knowledge of what's going on with the VCAA notification and VA's "duty to assist," as everyone has already suggested, it should be fairly easy to move forward on the issues you named. Best regards.

[Pete53]

Pete/Rick,

I stopped by the records department this past Friday to get a look at my records. Is that where my "C File" is? I had to make an appointment (the guy was using a blank appointment book).

Depends if you are talking about at the VARO where the "C" File is located or at the VAMC where your medical records are located. Your problem is that you are not sure about records that can only be found in your "C" File.

I wish you good luck on getting a VSO to go with you to review records.

Pete

[BMCS00]

Hi luvhim,

Thanks for your response. to answer your questions;

Was "Bilateral foot pain" the way you listed the condition when you submitted a claim for entitlement to have your foot condition service connected? Or is that just the way the VARO addressed it in the decision letter?

I don't recall for sure what I put on my claim. I think I put foot pain. I didn't realize I had the diagnosis at the time. I was still on active duty, XPO of cutter, and didn't take the time I should have to review my SMR prior to submitting my claim. That was MY mistake.

You are stating that you had "no symptoms of trouble with my feet" at the time of your enlistment...correct? That is correct.

However, with a claim for service connection due to aggravation of a pre-existing condition the evidence must show that a doctor believes "it is as least as likely as not" that your current condition was worsened by your military service. So, a doctors medical opinion is going to be crucial to your claim, especially since the condition pre-existed service (yes, even though it was dormant, symptomatically speaking, at enlistment). Otherwise, the VA will definitely seek ways to deny on the basis that it pre-existed service.

Interesting point. My argument is that it was all the physical activity at boot camp that started my feet down this painful path. I had 2 entry physicals. One in July '77, that entry says moderate bilat pes planus, asymptomatic. I was sent back down to Brunswick NAS for an aviation candidate physical for guaranteed school. That one does not even mention pes planus. The physical I had upon arrival to Cape May indicated 2 degrees bilat pes planus. Not sure what the 2 degrees means. Around week 6 or 7 it's documented in my smr about foot pain. I suppose when I pull it back up I will have another C & P. The VA podiatry department has made me 2 sets of orthotics. Doc said if this doesn't taek care of the pain then he would strongly recommend surgery (conical subtalar insertion and achilles tendon lengthening). I don't want that. So they have the best records of ongoing care since the deferral in 2001.

Due to your DDD condition, the plantar fasciitis could actually be service connected on a secondary basis. I also have plantar fasciitis and Achilles Tendonitis bilaterally. I can really empathize with the chronic pain syndrome caused by the back and feet issues. Oddly, we suffer with degenerative arthritis in the same anatomical regions of the spine. However, I also have cervical, and thoracic pain issues.

Quesion: Do you have radiculopathy? I didn't even know what it was until I googled it tonight. I have had it for quite some time now radiating from my lower back. When I had my C&P last year I told the doc all about it. My rating upgrade decision came back unchanged ... and in part because I had no radiculopathy. So clearly that item will be appealed. (I will get advice from my NSO rep at the DAV before writing my statement.)

My sc is for L4/5 and L5/S1 DDD. Now I'm having probs with cervical area. Do you think that would that be secondary to low back stuff? I'm going to try for its own rating as I had several back injuries over the years of my career. I think they were mostly lumbar and thoracic regions though.

Thank-you for your service and time.

--Jim

[BMCS00]

Depends if you are talking about at the VARO where the "C" File is located or at the VAMC where your medical records are located. Your problem is that you are not sure about records that can only be found in your "C" File.

I wish you good luck on getting a VSO to go with you to review records.

Pete

Hi Pete,

I believe Togus has all my medical records as well as my C File. I'll find out this week. If not there, I don't know where they would be. Not sure but I think they are the VARO as well as VAMC. If I don't get a VSO or NSO or whatever, I think I'll be okay. I've never seen a VA file, but have seen more than my share of personnel files and medical records, and have a knack for catching on quickly to filing systems. I'm hoping my NSO will be able to show me one or describe what the VCAA looks like.

Thanks for all your sage advice,

[luvHIM]

Jim

First off, I think (operative phrase..."I think" so it's just my opinion) you definitely have a claim for aggravation on the pes planus. You have a strong case with current podiatry notes. I have the same and an earlier C&P exam where the rating examiner actually wrote "...bilateral pes planus is one of the reasons for continued low back pain." That was the first time I had been given the diagnosis. But SMR's show pain in feet bilaterally beginning in basic.

If you go to va.gov then click on the link for Board of Veterans Appeals and go down to the sublink that says "search decisions" and click on that...you will find very similar cases to your own and see how they were won at that level (it will just help you to better prepare your claim for submission). It did not take much to win in many of the cases.

Yes, I have an xray and mri diagnosis of left radiculopathy, in addition to a VA rheumatology diagnosis.

You know, I think it is all connected. But I have seen claims at the BVA level denied for lack of sound etiology. It is not impossible but hard to get a claim awarded for the cervical on a secondary basis. Now, in my case, it may not be as challenging because I am diagnosed with Ankylosing Spondylitis, which effects the entire spine. Although, I have a diagnosis, I haven't filed a claim to service connect the cervical spine directly or as secondary. However, the VA seems to be including my cervical spine on their own. We'll see how it all plays out.

Back at cha...thank you for your service, as well. Best regards. CC