Refer A Diagnostic Code Change?

[Sgt. Wilky]

Hello All,

I frequently read the forums here, being that I have several claims in the VA for, and am currently waiting over two years for a resolution. That being said, I wanted to get your opinions about a subject that I was just reading.

I just read in an opinion rendered by the BVA, that, "The veteran and his representative have not suggested that another diagnostic code would be more appropriate."

I read this several times, and was astonished that this would be acceptable. Unfortunately, I have a condition that was denied by the VA, because they said they had no rating schedule for the paticular diagnosis. But when I saw that a veteran or his representation could 'suggest' a more appropriate diagnositc code, my hopes were somewhat revived.

Has anyone ever 'suggested' a more appropriate diagnostic code and won? I found a glaring error by the VA when they 'mistakenly' assumed two different problems were one problem, and subsequently denied the claim because of this. I wrote to them explaining the two conditions were separate conditions, and very simply divided the issue using medical evidence. They still assert that the one condition is non-compensable because no rating schedule exists for the condition. My hopes are to take this condition, and ask them to assign a closely related diagnostic code so that I can receive compensation. I hope that perhaps somebody has some experience with this issue and can give me some insight!

Thanks and Semper Fi!

Matt

[Berta]

"But when I saw that a veteran or his representation could 'suggest' a more appropriate diagnositc code, my hopes were somewhat revived."

That is certainly possible.

BVA decisions often contains clues to other remedys to award the claim.

BVA stated what I considered to be a clue in a 1998 denial I had.

I had come to the same conclusion as what they stated in 1998 but I never dreamed then I would not only find evidence of what they stated- I also was awarded on that basis by BVA in 2009.

Another BVA statement in the older denial also was instrumental in the almost year long fight I had with VA for the cash my award generated.

Other clues in the 1998 denial for the first time advised me I could be eligible for ancllary benefits upon a direct SC death award.The RO never advised me on those ancillary benefits ,even after I got the BVA award- but I got them too.On my own by by passing the RO.

Also BVA says sometimes-regarding CUE issues, that the CUE claim was denied without prejudice-meaning- if you file it again with a different wording or better legal argument,the past CUE denial has not prejudiced the right to succeed on the newer CUE.

I read BVA decision almost every day. They reveal how the BVA lawyers think and how they apply the regs.

"I found a glaring error by the VA when they 'mistakenly' assumed two different problems were one problem, and subsequently denied the claim because of this. I wrote to them explaining the two conditions were separate conditions, and very simply divided the issue using medical evidence. They still assert that the one condition is non-compensable because no rating schedule exists for the condition. My hopes are to take this condition, and ask them to assign a closely related diagnostic code so that I can receive compensation. "

Can you tell us what the condition is?

And exactly what the claim is for as you mentioned two different problems?

[Sgt. Wilky]

Hello Berta,

Thank you so much for replying, I apologize I haven't been able to get back to you sooner. I don't have my records with me at this moment, but if you're still reading this, I will post the information tomorrow morning.

Semper Fi!

Matt

"But when I saw that a veteran or his representation could 'suggest' a more appropriate diagnositc code, my hopes were somewhat revived."

That is certainly possible.

BVA decisions often contains clues to other remedys to award the claim.

BVA stated what I considered to be a clue in a 1998 denial I had.

I had come to the same conclusion as what they stated in 1998 but I never dreamed then I would not only find evidence of what they stated- I also was awarded on that basis by BVA in 2009.

Another BVA statement in the older denial also was instrumental in the almost year long fight I had with VA for the cash my award generated.

Other clues in the 1998 denial for the first time advised me I could be eligible for ancllary benefits upon a direct SC death award.The RO never advised me on those ancillary benefits ,even after I got the BVA award- but I got them too.On my own by by passing the RO.

Also BVA says sometimes-regarding CUE issues, that the CUE claim was denied without prejudice-meaning- if you file it again with a different wording or better legal argument,the past CUE denial has not prejudiced the right to succeed on the newer CUE.

I read BVA decision almost every day. They reveal how the BVA lawyers think and how they apply the regs.

"I found a glaring error by the VA when they 'mistakenly' assumed two different problems were one problem, and subsequently denied the claim because of this. I wrote to them explaining the two conditions were separate conditions, and very simply divided the issue using medical evidence. They still assert that the one condition is non-compensable because no rating schedule exists for the condition. My hopes are to take this condition, and ask them to assign a closely related diagnostic code so that I can receive compensation. "

Can you tell us what the condition is?

And exactly what the claim is for as you mentioned two different problems?

[Sgt. Wilky]

"I found a glaring error by the VA when they 'mistakenly' assumed two different problems were one problem, and subsequently denied the claim because of this. I wrote to them explaining the two conditions were separate conditions, and very simply divided the issue using medical evidence. They still assert that the one condition is non-compensable because no rating schedule exists for the condition. My hopes are to take this condition, and ask them to assign a closely related diagnostic code so that I can receive compensation. "

Can you tell us what the condition is?

Hello again, the non-compensable condition (actually rated at 0% because they 'can't' go higher) osteochondritis of the dissecans. The way I understand it, it is a joint condition in which a piece of cartilage, along with a thin layer of the bone beneath it, comes loose from the end of a bone. Caused by reduced blood flow to the end of a bone, osteochondritis dissecans occurs most often in young men, particularly after an injury to a joint. I don't know what more appropriate condition this would be rated under, perhaps tendonitis or even arthritis? I'm not a doctor, but the condition is very painful, especially when I climb the stairs and walk for even moderate distances. This injury was diagnosed in February of 2000.

And exactly what the claim is for as you mentioned two different problems?

The two different problems are:

1. The exact same problem mentioned in the first question and

2. Right femoral fracture of the Lesser Trochanter (Upper Femur) diagnosed in August of 1999 (with the same problem in the left leg [rated at 10%] as well. I was in a wheel chair for 4 months, while in Boot Camp)

The rating specialist and the C & P examiner actually combined the two conditions. The condition in question 2 is in the upper femur, while the condition in question 1. is the lowest part of the femur. I wrote a detailed letter to the VA, and as simply as I could. I certainly hope that I could be scheduled for an in person DRO hearing, or at least, another C & P exam.

Semper Fi,

Matt

Hello Berta,

Thank you so much for replying, I apologize I haven't been able to get back to you sooner. I don't have my records with me at this moment, but if you're still reading this, I will post the information tomorrow morning.

Semper Fi!

Matt

[Berta]

This veteran was awarded 10 % for one extremity with osteochondritis of the dissecans and 20 % for the same disability in his other etremeity.

http://www4.va.gov/vetapp07/files3/0729349.txt

If you go to www.va.gov, then to Site index on the bottom, then to Board of Veterans Appeals and click on that link and then on decisions, you can put your disability into their search feature to see how the7y are supposed to cade and rate this disability.

"They still assert that the one condition is non-compensable because no rating schedule exists for the condition." There were other decisions with the same condition as above mentioned in it.

Do you have a vet rep?

Their logic in that statement is faulty.

[Berta]

http://www4.va.gov/vetapp98/files3/9825297.txt

This case as well contains info as to how they rate this condition.

[Sgt. Wilky]

Berta,

Thank you, Thank you, Thank you!! Your contribution is very much appreciated!! I hope that someday soon I will be able to report back favorable findings!! In the mean time, I continue to look forward to reading and perhaps contributing to the success of other disabled veterans!!

Semper Fi!!

Matt