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LarryJ

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  • HadIt.com Elder

Okay, here's the problem:

I turned in a claim for osteoarthritis of my hip and knee.

Here is the way that I worded my claim:

"Please consider this as a claim for disability concerning my left hip and left knee, which are causing me pain and the inability to sit or stand for any length of time. This also keeps me from bending or flexing my back and causes me chronic pain in my knee, especially when trying to walk and both of these problems cause interference with my daily activities.

The cause of these problems is connected with the way I must walk (antalgic gait) due to my service connected left ankle disability."

I will present just the denial for the left knee, and the denial for the hip is worded the same way:

"2. Service connection for left knee condition as secondary to the service-connected disability of arthritis, left ankle.

We regret we cannot grant your claim for service connection for a left knee condition bacause there is no record of treatment or diagnosis of this condition shown in the service medical records. Service connection for a left knee condition as secondary to your servce connected left ankle condition is also denied because at the VA exam, although you were diagnosed with degenerative joint disease in the left knee the examiner furnished an opinion that it is less likely than not that your condition is related to your service-connected left ankle condition."

Nowhere in the denial do they even mention that I had, in fact, claimed my left knee as secondary to the antalgic gait that is directly related to my left ankle condition (and which has been diagnosed as such by the VAMC....). They denied me on conditions that I never even CLAIMED. I did NOT claim that my knee was secondary to my left ankle.

How do I overcome this rather glaring error?

"It is cold and we have no blankets.

The little children are freezing to death.

My people, some of them, have run away to the hills, and have no blankets, no food; no one knows where they are-perhaps freezing to death.

I want to have time to look for my children and see how many of them I can find.

Maybe I shall find them among the dead.

Hear me, my chiefs! I am tired; my heart is sick and sad.

From where the sun now stands, I will fight no more forever."

Chief Joseph

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  • HadIt.com Elder

Do you have a service connected rating for an antalgic gait, or for arthritis of the left ankle?

If you are rated for an antalgic gait, then they screwed uo and you need to nail them to the wall.

If you are rated for arthritis of the left ankle, then they have their bases covered. They cannot grant secondary service connection for a condition that is not service connected (antalgic gait). Moreover, the examiner stated that "it is less likely than not that..." these new disabilities are related to your SC'd ankle.

If you are still in the NOD period, what you need to do is get a IMO stating the opposite, or the same statement from your VA PCP. Use the nexus letter posted on this site if you get your VA PCP to do it.

If the decision is final, file a claim to reopen, and then do what was stated above, as this would constitute evidence that is both new (wasn't around during the last claim) and material (makes the nexus between the current disability and the SC'd disability).

Good Luck!

90%, TDIU P&T

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  • HadIt.com Elder

Is an antalgic gait something that you can actually file a claim for?

Good point, if so. It never entered my mind. I do know that there are literally dozens of BVA decisions granting vets claims wherein the, let's say, right knee is screwed up and SC'd, and the vet has done just as I did and claimed the hips being arthritic due to the altered or antalgic gait as secondary to the screwed right knee.

Thanks.

"It is cold and we have no blankets.

The little children are freezing to death.

My people, some of them, have run away to the hills, and have no blankets, no food; no one knows where they are-perhaps freezing to death.

I want to have time to look for my children and see how many of them I can find.

Maybe I shall find them among the dead.

Hear me, my chiefs! I am tired; my heart is sick and sad.

From where the sun now stands, I will fight no more forever."

Chief Joseph

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Larry, gait problems such as that you have described are simply symptoms of something and are not in themselves a service connectable disability.

If one has such a gait problem then it is an indication that something is wrong some where with that side of the body. It could be a hip problem, knee problem or foot and ankle problem.

Your rating discloses that they looked at direct service connection for the knee but could not find any evidence in your med records; then they looked at it to see if they could connect it to a service connected disability on a secondary basis. However, based upon the evidence of the VA examiner, who stated that it is less likely than not (less than 50 percent) that it was due to your service connected disability.

In your claim you said Please consider this as a claim for disability concerning my left hip and left knee.......... then you said The cause of these problems is connected with the way I must walk (antalgic gait) due to my service connected left ankle disability."

So you did ask for secondary service connection of your knee to the ankle. This was because you claimed the gait problem was due to the due to the way you had to walk due to your ankle. The service connected disability which could have been used to service connect these issues as secondary disabilities was the ankle and not the gait since the gait is not service connectable. If one tried to claim SC for a knee and Hip due to an ankle problem as you have and they do not have gait problems it would be a no starter at the gait. Hope this makes sense.

Now with that said. If that is the entire rating I do not see anywhere they actually denied the hip service connection that you asked for. If you do not NOD this and bring that issue forward again they will simply assume that it is denied.

You are going to have to get a medical opinion. Gait problems due to knee, ankle or hip injuries do, in many cases, result in other problems with the limb in question. A knee injury that causes gait problems often results in problems with the hip and foot......etc....... most ortho docs will admit to this so an IMO/IME should not be a problem.

Do a little research on the internet and you will quickly discover the information needed to word your NOD. Point out that based upon XXXXXXXXXXXXX your ankle problem has resulted in a gait problem which has placed more stress from walking movements etc....... on your hip and knee and although you had claimed SC for the hip in your original claim for a disability rating it was neither discussed nor denied, therefore you disagree with the entire rating decision.

Ask for a hearing, get the needed IMO and lay it on them at the hearing. The doc that did your exam should be imprisioned!!!

jmho

Edited by Ricky
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  • HadIt.com Elder

Tanks Ricky.

I think I understand what you are saying......although I'm really not "with it" this morning.

I've got the worst nasal congestion/allergy reactions that I ever have had.

I was cleaning up the attic yesterday, rummaging through dust-covered boxes and such. I spent all day up there (I can hardly get up there anymore so when I do manage it, I try to stay until I have accomplished what I went up there for.)

Anyway, I'll re-read what you have written until I understand it.....and, thanks again.

crap!, but I feel crappy!

"It is cold and we have no blankets.

The little children are freezing to death.

My people, some of them, have run away to the hills, and have no blankets, no food; no one knows where they are-perhaps freezing to death.

I want to have time to look for my children and see how many of them I can find.

Maybe I shall find them among the dead.

Hear me, my chiefs! I am tired; my heart is sick and sad.

From where the sun now stands, I will fight no more forever."

Chief Joseph

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