Va Rewords My Claim And Denies

[Jayg]

My knees are failing under me. I have flat feet (10%) and my L ankle (20%) and have claimed both knees as secondary conditions.

But. In denial (no pun here, I'm too desperate for levity at the moment ) VA reworded the order of my claim.

VA's denial- word for word-

Item 2, Service connection for bilateral knee condition.

In your current claim, you contend service connection for a bilateral knee condition. You contend your left knee is directly related to your military service and that your right knee condition is secondary to your left knee. Cited evidence of record fails to show your current left knee condition is related to your military service and there is no evidence available showing your right knee condition is related to your left knee condition. Therefore, service connection for a bilateral knee condition remains denied.

I have inexpertly filed claims as records or evidence became available where appeal or NOD should have been. Oh well, part of the learning curve.

But in 3 claims, none have applied the order they cite.

The above statement "You contend your left knee is directly related to your military service and that your right knee condition is secondary to your left knee." is grossly in error. Review of my claim dated 6-15-05 requests "service connected disability as secondary conditions for left knee, right knee and lower back due to the stress and strain placed on them in taking up the slack for the left ankle."

Not formal language I grant you, but I submit the meaning is clear. That being that my claim is for both left and right knees as secondary to my service connected left ankle. That's not "directly related to military service" for one thing. Neither is it for 'right knee condition secondary to the left knee' as stated by VA here.

Further, I have reviewed claims submitted 8-5-04 and 5-24-05 respectively, and there is no statement in either that claims one or both knees as 'directly relating to military service' or one to the other.

All my claim/appeals stress both (bilateral) knees as secondary conditions to my service connected left ankle and I submit further exacerbated by my service connected flat feet.

Additionally, my 11/16/06 dated NOD to a previous denial states "claimed: bilateral knee condition as secondary condition to service connected left ankle and flat feet."

In any case, the dienial above starts with the words, In your current claim, the others are thereby rendered irrelevent. Therefore, VA's denial of my claim on these conditions should be completely invalid.

So is this what is referred to as CUE? If so, what does that mean?

If it ain't 'CUE' what is it.?

What do I do?

This ain't right!

Edited April 27, 2008 by Jayg

[Jayg]

Jayg I feel your pain this is absoloutely correct but i call it creative writing what is spoken in the exam room and what is put on paper do not jive this is true i too have expierence this hence the clinical appeal.This is also why i have had to resort to extreme measures such as a recording device during exam as long as you tell them this is going to be a recorded session.I went for a C+P exam last week i told the physician before we get started do i have your permission to record this session he said yes and we proceede now when i get the write up if it does not meet up with what the procedure is you already have the proof and permission of the individual .this can not be disputed it is the fact in a court of law they agreed to it.The VA does not like this art all and i know for a fact this is one of the issues i am up against right now.But thats ok i have what i need since they distroyed 24 years of records. sorry this is your thread yes this has happened to me also you are not alone .if you wish to fix it approach the PT advocate or file NOD. with your own interpretation. I hope this helps my brother.

Thanks. I'll do the recording thing for sure.

They're keeping me bottled. The last exam he made it clear my feet, and only my feet, would be examined. Wouldn't even listen to discussion of secondary conditions.

I reckon to talk to the pt. adv. tomorrow. i want to see if there's anybody who can be got to write a nexus letter since VA is my sole provider and a doctors opinion is the only way I know of to 'connect the dots' in this case.

[Ricky]

Jay - not to get you spun up again but CUE - NO.

However, as I read through the posts it appears that you have not formally appealed the issue (I maybe be wrong, meds working on me). Therefore, I would go ahead and write up my formal appeal (form 9) and attack the SOC/SSOC based upon what you have provided in your post.

-Argue the point that they have confused your claim (state what the rater/DRO said you claimed which resulted in the denial Vs what your originally claimed - flat feet caused the other conditons) and provide a copy of your original claim.

-The second argument should be the fact that the VA has never given you an exam to assist in proving your claim (if you have submitted a claim based upon a known and valid medical fact, even without supporting evidence they should do this as part of their duty to assist you).

-Then argue that your current symptoms fall well within the accepted medical opinions of your claimed disability. Provide the proof that you do have which should be things such as copies of studies and opinions by medical doctors (should be able to get this off the internet). These should be actual studies and opinions of medical doctors published on the internet and not from a non-medical site like "We hurt.com. (hope this makes sense). You should be able to obtain free info on this from medical sites such as the ones freqently quoted by the VA in decisions. Sometimes you will luck up and find studies done by VA accredited doctors who have been directed by the VA to conduct such studies. You will have to spend quite a bit of time on this research but in the end it will pay off.

Even if you do not have a letter from your treating VA doctor you should have evidence of complaints to him about your current symptoms which will support your contentions in your claim. This will also be a key support item in your appeal to the board as documented symptoms will prove to the board that you are submitting a well grounded claim. Although this is not a requirement since the advent of the VCAA, if the veteran makes this a personal goal and insures that such a standard is meet it will prompt the VA to provide you more assistance in the claims process. As an example if a veteran claims headaches due to his skin rash the VA will probably not conduct a C&P exam for there is no studies or opinions any where that supports such a claim. Then when a veteran screams at the court level that the VA did not comply with the VCAA I assure the court will rule that the VA acted properly in the matter. Take this Vs a claim submitted by a veteran who claims headaches due to his service connected broken nose which has many supporting opinions issued by the medical community - in the latter the court will most likely rule in favor of the veteran on his claim of VA failure to provide the required assistance in the claims process (all of this is an example).

And yes as you can see without supporting medical evidence for your claim will take quite a bit of time and jumping through hoops to succeed (even a well documented claim takes quite a bit of time). However, I feel that you will succeed in the end. Just keep up the pressure, conduct your research properly and don't get spun up and lay down like a dead rabbit!

Sorry for the long post but it appears that you are dealing with a RO which can and has become confused and lazy. From what you posted that they wrote in the SOC it is evident that they are the type to say ok veteran if that is what you claimed (or what they think the veteran has claimed), eventhough they know that there is no way for the claim to succeed, they just simply issue a denial without any attempt at all clairfy the issue.

Hang in there and good luck. (hope all of this makes sense and helps you!)

[free_spirit_etc]

My take on it is that when the VA rewords your claim - your actual claim was on target - and they reword it to throw up a smoke screen.

My husband filed his initial claim for cancer. He stated the doctor told him based on the size and growth rate, it had to have STARTED in service. (It was 3.1 cm slow growing - found two years post retirement).

Of course, this was a BASE doctor who states the BASE attorney won't let him write an actual OPINION.

The VA initially acknowledged his claim for Lung Cancer. The denial changed it to Lung Cancer DUE TO asbestos exposure.

He did respond to that - as they state he wasn't exposed to asbestos based on NO occupational surveys (which weren't even being done until he stopped being an electrician).

Anyway - he BOLDLY told them his argument AGAIN - that he was claiming that his cancer STARTED in service.

Of course, they ignored that over and over - and kept sending him info to send in evidence of ASBESTOS EXPOSURE.

Before his death - he sent in a complete package asking for them to ACKNOWLEDGE his claim for was his cancer STARTING in service. They sent him more info telling him he had to send evidence showing asbestos exposure to reopen his claim.

After his death, I also requested the ACKNOWLEDGE the ACTUAL CLAIM - that his cancer STARTED in service.

The BVA has LOTS of approvals of claims based on the very same principle - though the cancer wasn't diagnosed until AFTER service - it was found to be present DURING the service.

It is not Rocket Science.

I am making SOME progress with them - they HAVE acknowledged that he maintains his cancer started in the service.

But their doctor wrote an opinion - apparently not addressing the QUESTION - but just addressing whether the SYMPTOMS he had in service were related to his cancer.

Geez....THey jsut keep on dancing all the way around it.

What they IGNORE is a real key - when they keep dancing all around the issue - it means they don't want to address the issue DIRECLTY - i.e. if they do - they would have to grant benefits.

Free

[rdawg]

Berta is correct. You need an IMO to connect the dots from your ankle to your knee. You do not have the correct evidence. Submitting more if the same(current "note" from your doctor) will only get you more of the same garbage from the VA. If the medical evidence is not there tehy will take forever and then deny with absolute jibberish.

Once you get the "proof positive" medical evidence, submit it and ask for a reconsideratrion based on the new evidence. I did this and was awarded service connection within 45 days, without a C&P. They rated me, correctly I might add, based on the ROM measurements in the IMO.

[Jayg]

Berta is correct. You need an IMO to connect the dots from your ankle to your knee. You do not have the correct evidence. Submitting more if the same(current "note" from your doctor) will only get you more of the same garbage from the VA. If the medical evidence is not there tehy will take forever and then deny with absolute jibberish.

Once you get the "proof positive" medical evidence, submit it and ask for a reconsideratrion based on the new evidence. I did this and was awarded service connection within 45 days, without a C&P. They rated me, correctly I might add, based on the ROM measurements in the IMO.

Back to square one.

As far as I have been able to ascertain, the only "medical evidence" that can tie Arthritis to service injury is a medical opinion. Since VA won't give one and I can't buy one, I stay in the gutter with the trash.

Or.

I can keep looking up supporting medical studies, other cases granted (precedent) and the like, and keep submitting them until dots or no dots somebody ties the ends together.

Since that's all I can do, it's what I will do.

"Not CUE" Ok. I believe you, and accept that.

[Jayg]

Jay - not to get you spun up again but CUE - NO.

However, as I read through the posts it appears that you have not formally appealed the issue (I maybe be wrong, meds working on me). Therefore, I would go ahead and write up my formal appeal (form 9) and attack the SOC/SSOC based upon what you have provided in your post.

-Argue the point that they have confused your claim (state what the rater/DRO said you claimed which resulted in the denial Vs what your originally claimed - flat feet caused the other conditons) and provide a copy of your original claim.

-The second argument should be the fact that the VA has never given you an exam to assist in proving your claim (if you have submitted a claim based upon a known and valid medical fact, even without supporting evidence they should do this as part of their duty to assist you).

-Then argue that your current symptoms fall well within the accepted medical opinions of your claimed disability. Provide the proof that you do have which should be things such as copies of studies and opinions by medical doctors (should be able to get this off the internet). These should be actual studies and opinions of medical doctors published on the internet and not from a non-medical site like "We hurt.com. (hope this makes sense). You should be able to obtain free info on this from medical sites such as the ones freqently quoted by the VA in decisions. Sometimes you will luck up and find studies done by VA accredited doctors who have been directed by the VA to conduct such studies. You will have to spend quite a bit of time on this research but in the end it will pay off.

Even if you do not have a letter from your treating VA doctor you should have evidence of complaints to him about your current symptoms which will support your contentions in your claim. This will also be a key support item in your appeal to the board as documented symptoms will prove to the board that you are submitting a well grounded claim. Although this is not a requirement since the advent of the VCAA, if the veteran makes this a personal goal and insures that such a standard is meet it will prompt the VA to provide you more assistance in the claims process. As an example if a veteran claims headaches due to his skin rash the VA will probably not conduct a C&P exam for there is no studies or opinions any where that supports such a claim. Then when a veteran screams at the court level that the VA did not comply with the VCAA I assure the court will rule that the VA acted properly in the matter. Take this Vs a claim submitted by a veteran who claims headaches due to his service connected broken nose which has many supporting opinions issued by the medical community - in the latter the court will most likely rule in favor of the veteran on his claim of VA failure to provide the required assistance in the claims process (all of this is an example).

And yes as you can see without supporting medical evidence for your claim will take quite a bit of time and jumping through hoops to succeed (even a well documented claim takes quite a bit of time). However, I feel that you will succeed in the end. Just keep up the pressure, conduct your research properly and don't get spun up and lay down like a dead rabbit!

Sorry for the long post but it appears that you are dealing with a RO which can and has become confused and lazy. From what you posted that they wrote in the SOC it is evident that they are the type to say ok veteran if that is what you claimed (or what they think the veteran has claimed), eventhough they know that there is no way for the claim to succeed, they just simply issue a denial without any attempt at all clairfy the issue.

Hang in there and good luck. (hope all of this makes sense and helps you!)

Ah, Ricky. I have noted your posts before.

Not going to get 'spun up.' It was late last night, I had been wrassling with my paper work most of the day and was overtired.

That's no excuse for getting ugly, I realize.

I am still sorry about that.

But you, Sir, seem to understand where I'm coming from and are making a lot of sense. Some of us have limitations apparently not recognized by others.

I have been following the lead of a county VSO who, though well meaning, and very dedicated to helping the vet, is not as educated as he might be. I am learning I am building on a trail of errors. I cannot help that. I can only repair as I may.

But not all the errors are my, or his, own. OK. I know, this is not "CUE." Still, I have to get it corrected or I will never be granted.

Form 9. I will do that. Working on the stuff now so I'll just get it there. Afore mentioned VSO pretty much uses 21-4138 for everything.

-Argue the point that they have confused your claim (state what the rater/DRO said you claimed which resulted in the denial Vs what your originally claimed - flat feet caused the other conditons) and provide a copy of your original claim.

I already have that together for submission.

The second argument should be the fact that the VA has never given you an exam to assist in proving your claim (if you have submitted a claim based upon a known and valid medical fact, even without supporting evidence they should do this as part of their duty to assist you).

Got you. I had a C&P a couple years ago that was done by a woman arguing with her spouse on the phone during the exam and I got reamed. Another exam for increase on flat feet was specifically limited to the feet and not commenting on secondary conditions. He wouldn't touch that. Request a new C&P?

Then argue that your current symptoms fall well within the accepted medical opinions of your claimed disability.

Doing exactly that.

Provide the proof that you do have which should be things such as copies of studies and opinions by medical doctors (should be able to get this off the internet). These should be actual studies and opinions of medical doctors published on the internet and not from a non-medical site like "We hurt.com. (hope this makes sense).

Makes a lot of sense. Doing that and I know what you mean by 'studies' or reliable source. For example one thing I've found is really just an internet print out, but from the Mayo Clinic. Other things are Med Journal studies.

You should be able to obtain free info on this from medical sites such as the ones freqently quoted by the VA in decisions. Sometimes you will luck up and find studies done by VA accredited doctors who have been directed by the VA to conduct such studies. You will have to spend quite a bit of time on this research but in the end it will pay off.

Doing that. BUT. Most of those studies you can only get the abstract free. Most all must be paid for. Fortunately I have a friend in University who is getting them for me.

Even if you do not have a letter from your treating VA doctor you should have evidence of complaints to him about your current symptoms which will support your contentions in your claim. This will also be a key support item in your appeal to the board as documented symptoms will prove to the board that you are submitting a well grounded claim.

I have been treated solely by VA going on four years. They have plenty of treatment, emergency and exam records. In fact, they authorized the custom brace for the one knee.

And yes as you can see without supporting medical evidence for your claim will take quite a bit of time and jumping through hoops to succeed (even a well documented claim takes quite a bit of time). However, I feel that you will succeed in the end.

I'm learning the hoops. I am disabled beyond my ability to earn a living. All my work experience is physical/technical (machinist at the last). TDIU is part of my claim. So I cannot quit, I can only go under the bridge or die. So until then, I'll keep doing what I can do.

Thank you so much for your advice. It was most helpful. Happily, I see I am doing most of what you mentioned. That suggests I'm on the right track.