Good News I Think!

[Charleese]

Hi everyone,

My husband called the Doctor at the VA Satellite OFfice who gave him the prescription to get his knee brace and told him that because he didn't say knee brace was required that he got denied for an increase for knee brace.

Doctor said if I send him to get a knee brace then it is required. We had a hard time explaining to him thaat it doesn't go that way. We even gave him a copy of decision which states: " To assign a greater evaluation of 40% there must be evidence that a brace is required because of nonunion and loose motion; or evidence of extension of the leg limited to 30 degrees; or, evidence of ankylosis of the knee with flexion between 10 and 20 degrees. A higher evaluation is not warranted because these findidngs are not currently shown."

He finally agreed to put something in writing. What he did was to amend the last page of his Progress Notes of ll/19/2008 with todays date 4/2/09 to say: " patient requires left knee brace for his history of left knee problem", and signed.

I hope this statement is enought to get him an additional 10% increase for his left knee condition, which will make his rate at 70% instead of the 60% that he now has, when we file for Reconsideration.

? What Do You Think will he get approved for increase or not with using this statement? Mind you he is not using the words nonunion and loose motion, but using the word required. Let us know what you think.

Thanks!

[Capt.]

Hello, I agree with John that you will have to connect the dots and the doctors statement you currently have will probably not work. I would print out the copy of the VHA directive 2007-024 Sept. 11, 2007 (search Hadit or the web)and take this to your doctor, VA or non VA so they can read it and see that you can help him write the CORRECT opinion in the CORRECT VA way. This will show that you may write the letter to the VA and he can sign it. As long as everything is true and the doctor has reviewed the reports/test/journals etc that you have supplied. This directive is overlooked and many doctors, including the VA doctors think that they cannot legally do this. The directive is specific and you can highlight for the doctor so he can see it easily. If the Veteran knows what the VA is wanting on a claim in the way of wording , the Veteran can connect the dots and the Veteran is helping his doctor to propel his or hers claim successfully and with simplicity. I would first make your SSOC 21-4138 into something simple to help the Doctor with his Nexus , the correct wording, making it so the VA can ..."connect the dots". Maybe something like this

My name is Doctor____________ I am at ______________ (place/address/phone)

My patients name is ____________ and I have been treating him for __________ since___________(date) .Mr/Mrs_______ is currently service connected with the VA for ___________ on date________ and disability percentage is ______________.

I have currently reviewed the following documents....

A. Example- Medical report from date______ in the Military records. This record states his injury/wound/illness/disease.

B. The Medical reports/journal on such injury/wound/illness/disease that show the specific relationship between..........

C. The Medical test/treatments/evaluations/progress reports from_______ date_______

D. I am qualified to make a diagnosis/nexus/opinion on Mr./Mrs. ____________ as I am certified in ....show his Vitae(resume) listing colleges, training , special boards certifications, awards from fellow Doctors or organizations. I have been in this field of medicine for xxxx years and it is my professional opinion that Mr./Mrs___________ suffers or has __________ and that after careful review of the Medical reports, Medical Journals, and the test and examinations/other doctors opinions, listed above, it is my belief that it is "AS LEAST AS LIKELY AS NOT" that his injury/wound/illness/disease, is directly caused/related to his/her incident on date or while stationed in/at ____________________ ship/post/fort/country during the dates or on the date from_____to ________. I also find that there is no other etiology/cause.

Signed ,

Doctor ________

Title__________

Date__________

If you need to supply the diagnostic codes , please do that also. Connecting the dots, using the proper wording which I listed in caps and quotation marks, making it simple and supplying the supportive evidence and test, will leave you without supplying later, what you could have done at the beginning. It may even take the BVA , remands and the time to properly adjudicate your claim to a shorter waiting period and even one that will result in your award or increase.

But please also remember to NEVER GIVE UP.

I hope this helps and please let your doctor know that the VHA directive that I listed above is designed to have you help him/her to correctly meet the VA requirements to meet a medical diagnosis/nexus. God Bless, C.C.

[carlie]

Capt. C,

That is an excellent example for a nexus ---

but they don't need a nexus as it is already SC'd.

If I understand the thread correctly they are going for an increase.

No offense meant.

carlie

[sharon]

38 CFR §4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:

(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,

(2) Disabilities resulting from common etiology or a single accident,

(3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,

(4) Multiple injuries incurred in action, or

(5) Multiple disabilities incurred as a prisoner of war.

It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veterans earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501(a))

( It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veterans service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

[sharon]

38 CFR §4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:

(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,

(2) Disabilities resulting from common etiology or a single accident,

(3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,

(4) Multiple injuries incurred in action, or

(5) Multiple disabilities incurred as a prisoner of war.

It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501(a))

( It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

Your husband's 60 percent meets the standard for applying for TDIU. See #2 and #3. If not apply for extra schedular.

Edited April 3, 2009 by sharon

[Capt.]

Hello Carlie,,,,, yes your right but it also may be used for any increase and can be worded into the Doctors nexus. Having supportive statements/evidence for a DRO or any decision making part of the VA is giving them the necessary things that can be legally awarded. I probably should have been more clear in my wording. Sharon also posted the TDIU part of the regulations ,,,,thank you too Sharon. Hope this helps. NEVER GIVE UP . God Bless, C.C.