Just Got Original Claim Decision, But What Path To Fix 3 Non-awards?

[Thad]

I don't know how to go now: NOD vs appeal vs hearing vs CUE vs whatever, for the following problems:

1) When is an informal claim not a claim?

2) How better to connect left knee to right knee & flatfeet?

3) Conditions that VA deferred?

What would you suggest as an approach to resolving these issues, and should I try to correct just 1) and 2) related to the current award, or go after 3) at the same time? Does sending in new information help or can I only do that based on which appeal route I go? Seems like what I want them to ask them to do is to use all the SMRs and IMOs provided, instead of blowing them off.

Have been DITY so far (not working with a VSO, local one didn't seem too interested). Sorry for the long post: dind't want to ask 3 separate questions in case what to do altogether was different than if there was only one issue.

MANY thanks, Thad

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1) When is an informal claim not a claim?

In Jul 2008 I sent in a short, two-sentence form 21-4138 saying that it was an "informal" claim per 38CFR3.155 requesting "service-connected disability compensation", without listing any specific body parts or conditions, and said that I was collecting and would submit the needed records and evidence. It pretty much matched one of the short examples in the "Vet's Survival Guide" book. VA replied referring to my "application for benefits" and my "application for compensation" and told me to complete a form 21-526. They received the formal claim (within 12 months) on 5/27/2009; their award letter 6 months later uses that formal claim date as the effective date, saying "Your previous form 21-4138 filed 7/3/2008 did not specifically list your claims and does not constitute an informal claim for benefits. 38 CFR 3.155 states that any such informal claim must identify the benefit sought...your attempt did not name which compensation and disability benefits were being sought." Getting the extra year is important, since it includes 6 months of 100% post-hospitalization time.

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2) How better to connect left knee to right knee & flatfeet?

They awarded 30% right knee (osteoarthritis, post-TKR) and 0% bilateral pes planus as direct service-connected based on SMRs, but denied left knee (osteoarthritis, post-TKR). I documented 5 during-service bilateral knee pain visits (for which orthotics were repeatedly prescribed). Reason VA cited was that only right knee needed surgeries during service and left knee was never formally diagnosed with osteo during service. In addition to general words about parachuting and knees and whole-body-effect of osteo, I had 2 IMOs from post-service ortho dr and from podiatrist both stating that knees were service-connected. VA said those opinions looked at SMRs but not service x-rays and were just conjecture; C&P exam dr said he had no service x-rays so any conclusion would be conjecture, and that the left osteo could have just hit post-service. I thought the original IMOs were clear enough or would get the benefit of reasonable doubt in the vets favor, but the VA decision says the IMOs conclusion of SC is not in agreement with the C&P opinion that concluding SC would be conjecture. It would be possible to ask both ortho and podiatrist to write new IMOs specifically connecting left knee to right knee and flatfeet, now that those are SC (going secondary instead of direct SC?). Getting the left knee is important, since it would put me at 60% total with the bilateral.

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3) Conditions that they deferred?

I also claimed cervical and thoracolumbar IVDS, and VA just says that decision is deferred "for further development" and "because we need additional evidence". I sent in SMR/CMRs on that and a third "is service-connected" IMO. The C&P dr didn't seem to know what IVDS stood for, and would only do the thoracolumbar ROM (then didn't record it in his notes). I had already sent in both ROM testing from a civilian dr certifying that they had used the mil/VA ROM testing guidelines. I think VA has enough to go on, and just want them to issue a decision using what's already there.

[LarryJ]

Thad,

You need to pay close attention to the reasons for denial. All denials tell you what you need to get a claim approved. Also an IMO is not worth spit if the doctor writing the opinion has not read the active duty medical records, and determines a logical NEXUS to the condition that incurred on active duty, or for secondary conditions, a nexus to the primary condition. A doctor can't just write his opinion and expect it to be honored unless he can justify his IMO based on the medical record.

Also the benefit of doubt only applies when the evidence is not balanced. This means the majority of the evidence must be in your favor in order to win a claim. If the doctors IMO was considered not to be valid then it would seem that he did not back up the opinion with the medical evidence of record. If you had more than one IMO that might have helped. But when you only have one, it is much eaiser for the va to discredit the opinion, and deny the claim....

Wrong.

The "benefit of the doubt" applies ONLY when the evidence IS balanced.

Thereby giving, to you, the benefit of the doubt.

If, as you say, the majority of the evidence is in YOUR favor..........then, obviously you would "win", without having to have a "benefit of the doubt", for there would be no "doubt".

[Thad]

I appreciate all your thoughts on this.

-- Yes, the rating decision awarded SC@30% for the right knee and SC@0% for the flatfeet

-- There were 2 both-knee-related IMOs, both said they HAD looked at the SMRs/SPRs before concluding service connection and both gave their nexus logic; C&P dr just said any such conclusion would have to be conjecture; rating decision said that if the C&P dr thought it would be conjecture then IMOs couldn't conclude differently (blowing off IMO-writers opinions; board certifications; military medical journal reviewer status; etc).

-- "denials tell you what you need to get a claim approved": I will add this approach, arguing against their main point that the left knee problem was not continuous, as well as using Hoppy's approach of IMOs that (more clearly) tie the left to the right knee & feet

-- "forget the "informal claim" that you originally sent": then the book author's example letter was just plain wrong, but I can live with losing the earlier date if I have to

1) Would it be possible go the "presumptive" route -- to argue that (osteo)arthritis was shown present in several body parts during service, and so the left knee (getting to the needs-surgery point only post-service) is still SC? I don't know whether presumptive is harder than direct or secondary.

2) About either a NOD or a "Request for reconsideration"

-- Do both allow you to send in new statements, IMOs, etc for VA to use during that followup process?

-- Can both approaches be done while VA still has other (IVDS) conditions "deferred"?

Thanks again for your experience and suggestions!

Thad

[vaf]

The book is not flawed, from what I can see -- For anyone who has a copy (Second Edition) of Major Roche's book, look at page 45, where he includes a sample of an informal claim filing. His example of an informal claim statement specifically mentions a back injury in 1967 while on active duty. In full, the statement says,

"Please accept this notice as my informal claim for compensation benefits due to a back injury I had while on active duty in 1967. I have been treated for this condition at the VA Medical Centers in Lake City, City, Florida in 1968, Houston, Texas in 1973, and the Bronx, New York, in 1980.

A formal application will be filed once i have collected all the evidence to support my Claim."

We used this example to file an informal claim for service connection for obstructive sleep apnea, and it worked just fine.

Edited December 14, 2009 by vaf

[Berta]

"C&P dr just said any such conclusion would have to be conjecture; rating decision said that if the C&P dr thought it would be conjecture then IMOs couldn't conclude differently (blowing off IMO-writers opinions; board certifications; military medical journal reviewer status; etc)."

VA docs use 'conjecture' when they dont really have a clue on the disability.(IMHO)

Do you have the exact wording of the reasons and bases for the denial?

"Would it be possible go the "presumptive" route -- to argue that (osteo)arthritis was shown present in several body parts during service, and so the left knee (getting to the needs-surgery point only post-service) is still SC? I don't know whether presumptive is harder than direct or secondary."

I sure would raise this as both direct AND chronic presumptive-

good thinking here Thad-

Any chronic disease, manifested at least to 10% disabling during service can be service connected this way.

Arthritis is listed as a known chronic presumptive in 38 CFR 3.309.

A veteran can request SC under more than one basis or theory of entitlement.

[Thad]

VAF, you're right and I'm wrong. I was using the shorter example on pg 66 "my intent file and informal claim for PTSD under 35 CFR..." and I wrongly assumed that I could skip the "for PTSD" words. Oh well, life goes on...

Berta, thanks for encouraging using several approaches for SC, I'll try that.

I'll find and add the rating decision text later. Any thoughts on:

2) About either a NOD or a "Request for reconsideration"

-- Do both allow you to send in new statements, IMOs, etc for VA to use during that followup process?

-- Can both approaches be done while VA still has other (IVDS) conditions "deferred"?

Thanks,

Thad

[deltaj]

I don't know how to go now: NOD vs appeal vs hearing vs CUE vs whatever, for the following problems:

1) When is an informal claim not a claim?

2) How better to connect left knee to right knee & flatfeet?

3) Conditions that VA deferred?

What would you suggest as an approach to resolving these issues, and should I try to correct just 1) and 2) related to the current award, or go after 3) at the same time? Does sending in new information help or can I only do that based on which appeal route I go? Seems like what I want them to ask them to do is to use all the SMRs and IMOs provided, instead of blowing them off.

Have been DITY so far (not working with a VSO, local one didn't seem too interested). Sorry for the long post: dind't want to ask 3 separate questions in case what to do altogether was different than if there was only one issue.

MANY thanks, Thad

-----------------------------------------

1) When is an informal claim not a claim?

In Jul 2008 I sent in a short, two-sentence form 21-4138 saying that it was an "informal" claim per 38CFR3.155 requesting "service-connected disability compensation", without listing any specific body parts or conditions, and said that I was collecting and would submit the needed records and evidence. It pretty much matched one of the short examples in the "Vet's Survival Guide" book. VA replied referring to my "application for benefits" and my "application for compensation" and told me to complete a form 21-526. They received the formal claim (within 12 months) on 5/27/2009; their award letter 6 months later uses that formal claim date as the effective date, saying "Your previous form 21-4138 filed 7/3/2008 did not specifically list your claims and does not constitute an informal claim for benefits. 38 CFR 3.155 states that any such informal claim must identify the benefit sought...your attempt did not name which compensation and disability benefits were being sought." Getting the extra year is important, since it includes 6 months of 100% post-hospitalization time.

-----------------------------------------

2) How better to connect left knee to right knee & flatfeet?

They awarded 30% right knee (osteoarthritis, post-TKR) and 0% bilateral pes planus as direct service-connected based on SMRs, but denied left knee (osteoarthritis, post-TKR). I documented 5 during-service bilateral knee pain visits (for which orthotics were repeatedly prescribed). Reason VA cited was that only right knee needed surgeries during service and left knee was never formally diagnosed with osteo during service. In addition to general words about parachuting and knees and whole-body-effect of osteo, I had 2 IMOs from post-service ortho dr and from podiatrist both stating that knees were service-connected. VA said those opinions looked at SMRs but not service x-rays and were just conjecture; C&P exam dr said he had no service x-rays so any conclusion would be conjecture, and that the left osteo could have just hit post-service. I thought the original IMOs were clear enough or would get the benefit of reasonable doubt in the vets favor, but the VA decision says the IMOs conclusion of SC is not in agreement with the C&P opinion that concluding SC would be conjecture. It would be possible to ask both ortho and podiatrist to write new IMOs specifically connecting left knee to right knee and flatfeet, now that those are SC (going secondary instead of direct SC?). Getting the left knee is important, since it would put me at 60% total with the bilateral.

-----------------------------------------

3) Conditions that they deferred?

I also claimed cervical and thoracolumbar IVDS, and VA just says that decision is deferred "for further development" and "because we need additional evidence". I sent in SMR/CMRs on that and a third "is service-connected" IMO. The C&P dr didn't seem to know what IVDS stood for, and would only do the thoracolumbar ROM (then didn't record it in his notes). I had already sent in both ROM testing from a civilian dr certifying that they had used the mil/VA ROM testing guidelines. I think VA has enough to go on, and just want them to issue a decision using what's already there.

If one or more of the three non awards was a denial of service connection you need to look at 38 USC 5108 and provide new and material evidence to establish service connection. One good example of how to come up with new and material evidence is to contact the National Personnel Records Center to obtain service records showing the conditions you claimed on your application for conmpensation were incurred or aggravated during military service or the presumptive period after military service. Please read 38 CFR 3.309 which mentions the presumptive period on some conditions. Although it is true that the National Personnel Records Center lends the originals of the veteran's service records to the V.A. after a claim is received at V.A. from a veteran, I've noticed that V.A. sometimes fails to obtain inpatient hospital records from the National Personnel Records Center which were referred to by the veteran on the veteran's application for compensation. There are also late flowing service records which are sometimes discovered later at the National Records Center after a request from a veteran. A separate request for inpatient hospital records must be made to the National Personnel Records Center. I suggest you read 38 CFR 3.156 and pay particularly attention to 38 CFR 3.156 © which pertains to newly discovered service records.