Duty To Assist: Should/does Va Routinely Consider Sc For Aggravation Of Conditions

[acesup]

I'm still waiting for my DRO review/hearing, since my NOVA attorney filed N.O.D. 4 1/2 months ago on 11/15/11.

In my claim for various secondary conditions to my SC lumbar spine problems including chronic low back strain and Degenerative Disk Disease as well as spinal canal stenosis and more, I was turned down for everything, including some no-brainers like sciatica and other nerve disorders of the lower extremities, as well as O.S.A, depression, Chronic Pain Disorder. and some problems caused by medications for my SC condition.

As I've complained in previous posts, the VA did list evidence they received from me, including expert medical opinions/nexus letters, lay evidence, etc. But the decision for each condition only referred to the C&P examiners' opinions, and in each case, stated "there is no evidence" supporting my claim for service connection, aggravation, etc... Well, there certainly is/was evidence, they simply chose to disregard it and rubber stamp the C&P opinions.

It is well-documented, and the VA doesn't disagree, that I certainly have every one of the conditions that I claim.

However, I have a question; why did the C&P examiners not opine on "aggravation", (or if they do, NOT offer any rationale as to why it wouldn't be aggravated?) and how can the VARO not REALISTICALLY examine that angle under "Duty to Assist"?

Even though VA arbitrarily dismisses my claimed conditions as anything but SC, how can they possibly get away with ignoring "aggravation". For instance, my lower extremities having serious nerve function problems; what idiot wouldn't realize that it HAS to be aggravated by the nature of D.D.D.? How could Depression or Chronic Pain Disorder NOT be aggravated by the lumbar condition?

My attorney does address this in the N.O.D. I hope someday soon to be getting a date with the DRO, but until then, just seeking answers.

[Teac]

I'm still waiting for my DRO review/hearing, since my NOVA attorney filed N.O.D. 4 1/2 months ago on 11/15/11.

In my claim for various secondary conditions to my SC lumbar spine problems including chronic low back strain and Degenerative Disk Disease as well as spinal canal stenosis and more, I was turned down for everything, including some no-brainers like sciatica and other nerve disorders of the lower extremities, as well as O.S.A, depression, Chronic Pain Disorder. and some problems caused by medications for my SC condition.

Actually the va doesn't consider your various conditions as secondary to your SC lumbar spine, for seperate ratings. I don't know what you actual rating is but is sounds like muscle spasms. As we age it can become degenerative disc disease, mine did, and when I was re-rated it was rated under the code for DDD. DDD by its very nature and in many cases causes spinal stenosis, bone spuring etc.. they are not rated secondary to DDD but are considered part and parcel. As to the sciatica, it can be rated seperately but you must have a diagnoses. To prove sciatica you need to have a nerve conductive study done and a doctors opinion that the DDD is pressing up against the nerve root. As to OSA, (well personally I doubt that you back conditon is causing that), but regardless what I think, you need a medical opinion that states your back injury is causing the sleep apnea. Of course all the other conditions you are claiming also need to be addressed by a doctors statement.

As I've complained in previous posts, the VA did list evidence they received from me, including expert medical opinions/nexus letters, lay evidence, etc. But the decision for each condition only referred to the C&P examiners' opinions, and in each case, stated "there is no evidence" supporting my claim for service connection, aggravation, etc... Well, there certainly is/was evidence, they simply chose to disregard it and rubber stamp the C&P opinions.

What you may not understand is that the va does not have to believe your expert medical opinions, and very often will call for a c/p exam because the evidence you submitted doesn't answer all the questions.

It is well-documented, and the VA doesn't disagree, that I certainly have every one of the conditions that I claim.

However, I have a question; why did the C&P examiners not opine on "aggravation", (or if they do, NOT offer any rationale as to why it wouldn't be aggravated?) and how can the VARO not REALISTICALLY examine that angle under "Duty to Assist"?

The duty to assist only applies to getting medical evidence, and providing medical exams, the va cannot make any examiner answer the questions in the way you want them answered. I have a appeal pending myself concerning something very simular and while in my case a specific question was never answered, I was still awarded service connection. But for me it is more about the va admitting responsibility than it is a rating.

Even though VA arbitrarily dismisses my claimed conditions as anything but SC, how can they possibly get away with ignoring "aggravation". For instance, my lower extremities having serious nerve function problems; what idiot wouldn't realize that it HAS to be aggravated by the nature of D.D.D.? How could Depression or Chronic Pain Disorder NOT be aggravated by the lumbar condition?

I don't think they are ignoring anything. I suspect as I mentioned before that the medical evidence you submitted is supporting. I have serious pain all the time, but I have never been diagnosed with a chronic pain disorder, or depression.and I eat pain pills like candy.... Have you been to a pain clinic or mental health for these conditions if not ... the va isn't going to rate you without the medical evidence, and a diagnosas. Just saying you have these problems isn't going to get you a rating.

My attorney does address this in the N.O.D. I hope someday soon to be getting a date with the DRO, but until then, just seeking answers.

I would be very interested is seeing the actual reasons for denial because I really don't have a clear picture why your were denied anything. I am only going on what I have seen and know about cases like yours. Could you post the actual reason for the denial, they are located in the letter that denied the conditions..... For now all I have done is play devils advocate, but knowing the reasons behind the denials I might be able to present you with a far more educated opinion....

[cooter]

What has your attorney say about this?

Coot

[71M10]

My experience has been that the RVSO or DRO working on your claim/appeal will send specific questions they want answered and provide a scope of what the C&P is to address. This information is not part of the C&P exam, im not even sure it is in the C-file (VA e-mail/im system i suspect).

I do know that on the C&P related to my last decision the Dr. indicated they were only allowed to address service connection based on my cervical spine(I asserted secondary connection based on my T spine, cardiomegaly and SC medications). I think it is a combination of no one actually reading the claim/file in detail.

I also think it is quite telling when the VA will give a 22 YO, SC and a 0% rating for arthritis or any other chronic progressive disease and will not schedule them for a future exam to see if a condition gets worse(in the case of arthritis it eventually will), but if they assign 10 or 20% they will assign a future exam to check to see if you have gotten better!

How does that policy square up to "Duty to Assist" or what the mission statement for the whole organization is supposed to mean?

Best regards,

[Berta]

"However, I have a question; why did the C&P examiners not opine on "aggravation", (or if they do, NOT offer any rationale as to why it wouldn't be aggravated?) and how can the VARO not REALISTICALLY examine that angle under "Duty to Assist"?

I agree that we need to see the Reasons and Bases for the decision.

For claims involving either secondary conditions or aggravation of an NSC due to SC, as within the regs below, the medical nexus of the association and a complete medical rationale must be clearly spelled out in the IMO.

Did the IMO docs follow the IMO format here at hadit?

You stated:

“As I've complained in previous posts, the VA did list evidence they received from me, including expert medical opinions/nexus letters, lay evidence, etc. …..”

If they listed the IMOs and did not make any statements on them at all in the decision, did your lawyer consider asking them to CUE themselves?

We need more info.

Ҥ 3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

(a) General. Except as provided in §3.300©, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.

(b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.

(Authority: 38 U.S.C. 1110 and 1131) © Cardiovascular disease. Ischemic heart disease or other cardiovascular disease developing in a veteran who has a service-connected amputation of one lower extremity at or above the knee or service-connected amputations of both lower extremities at or above the ankles, shall be held to be the proximate result of the service-connected amputation or amputations.”

Edited April 4, 2012 by Berta

[acesup]

Thanks for the input and questions. As soon as I can, I will post he Decision letter info. My NOVA attorney asked me to not do that until we've completed the DRO stage.

I don't have enough knowledge about the process to say it was CUE, but I will say that my attorney laughed a lot while reading the Reasons. She has a lot of training in VA law, and seems quite confident that we will prevail. She says they did not address the aggravation angle at all in C&P opinions, and for each dismissal of my claim, really did not provide any logical rationale for denial. I think her initial thought process is that unless the DRO just grants my claim, she is pressing to obtain a completely new C&P exam, and hopefully with a different examiner.

Of interest, and I hope it plays out like she says:

1. The VA cannot simply ascribe a secondary condition to anything and everything else that could possibly be a contributing factor, when otherwise that condition would be a logical result of the original SC disability. For example, the sciatic and popliteal nerve problems I have; the C&P examiner opines that lifestyle, age, and other possible events caused it, therefore it is NOT due to my lumbar spine disability. Gee, she can save the VA billions with that approach to everything, huh? Interesting, the double standard the VA practices for medical rationale, that while we need expert medical opinion supported by medical evidence, the C&P nurse can pull theories out of her derierre and apply them for purposes of denial.

2. Lack of documented continuous treatment for a mental condition is no longer an automatic excuse for VA to deny that the claimed condition is unrelated to previous "episodes" of that disability. For instance, a person who has been diagnosed with depression while active duty, then doesn't see a psych for years cannot just be dismissed as now suffering an unrelated episode of depression. The Surgeon General recently opined that lack of treatment, even for a period oof years, doesn't mean the condition went away.

This is all a learning process for me. And while I am not one who believes a lawyer is always the answer to everything. I do feel that these NOVA lawyers, who spend a lot of time studing all the laws and regulations involved with VA Compensation, are a welcome resource and a blessing for those of us who are otherwise at quite a disadvantage in dealing with the VA folks who dispense these decisions. Me alone dealing with the big bad VA is so much like bringing the proverbial knife to the gunfight.

Looking back now, I just think that when I filed my claim, I should have given proper attention to the fact that the VA would likely deny direct or secondary Service Connection. I should have also prepared for and presented a strong case for "aggravation" due to the SC disability, instead of hoping the VA would do it for me.

[Teac]

Thanks for the input and questions. As soon as I can, I will post he Decision letter info. My NOVA attorney asked me to not do that until we've completed the DRO stage.

I don't have enough knowledge about the process to say it was CUE, but I will say that my attorney laughed a lot while reading the Reasons. She has a lot of training in VA law, and seems quite confident that we will prevail. She says they did not address the aggravation angle at all in C&P opinions, and for each dismissal of my claim, really did not provide any logical rationale for denial. I think her initial thought process is that unless the DRO just grants my claim, she is pressing to obtain a completely new C&P exam, and hopefully with a different examiner.

Of interest, and I hope it plays out like she says:

1. The VA cannot simply ascribe a secondary condition to anything and everything else that could possibly be a contributing factor, when otherwise that condition would be a logical result of the original SC disability. For example, the sciatic and popliteal nerve problems I have; the C&P examiner opines that lifestyle, age, and other possible events caused it, therefore it is NOT due to my lumbar spine disability. Gee, she can save the VA billions with that approach to everything, huh? Interesting, the double standard the VA practices for medical rationale, that while we need expert medical opinion supported by medical evidence, the C&P nurse can pull theories out of her derierre and apply them for purposes of denial.

2. Lack of documented continuous treatment for a mental condition is no longer an automatic excuse for VA to deny that the claimed condition is unrelated to previous "episodes" of that disability. For instance, a person who has been diagnosed with depression while active duty, then doesn't see a psych for years cannot just be dismissed as now suffering an unrelated episode of depression. The Surgeon General recently opined that lack of treatment, even for a period oof years, doesn't mean the condition went away.

This is all a learning process for me. And while I am not one who believes a lawyer is always the answer to everything. I do feel that these NOVA lawyers, who spend a lot of time studing all the laws and regulations involved with VA Compensation, are a welcome resource and a blessing for those of us who are otherwise at quite a disadvantage in dealing with the VA folks who dispense these decisions. Me alone dealing with the big bad VA is so much like bringing the proverbial knife to the gunfight.

Looking back now, I just think that when I filed my claim, I should have given proper attention to the fact that the VA would likely deny direct or secondary Service Connection. I should have also prepared for and presented a strong case for "aggravation" due to the SC disability, instead of hoping the VA would do it for me.

I agree 100% with your #2 point.. I disagree with your #1 point. The va is not required to consider secondary issues unless you raise them. If you raise a seconday issue you must prove it by the medical records. Just because siatiac nerve issues can be associated with Degenerative disc disease and due to nerve root inpingment doesn't mean that is the case in all claims. If you go to a C/P exam without first getting a diagnosis and an Indepdedant medical opinion that is mistake #1.

C/P examiners work for the government they do not work for you. Most examiners have no medical practice, or any medical job all they do is get paid for putting an opinion in writing after seeing someone for 5-15 minutes... Most don't care about your case and if they can find any reason to dispute your claim they will , don't let anyone kid you, that is what they are paid to do. If you didn't get the IMO before you filed your claim, that is a mistake because now the va only has one medical opinion that of the c/p doctor and your going to lose in many cases because their is no benefit of the doubt when you have not provided a different opinion.

I don't know why your NOVA represenative doesn't want you to post the actual reason for denial. No one unless they know you are going to be able to tie the denial to your case. And regardless of how experienced your think your represenative is.. they lose cases all the time, just take a look at the published BVA cases many are lost because of poor represenation. I am not saying your represenative is not good, I'm saying they all make mistakes.. and sometimes it is best to have more than one opinion after receiving a denial.