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Yep. Looks Like I Got My Denial Letter Today.


SpcDearman

Question

Was denied for all of my conditions. It appears that they cannot make a link between my vehicle roll over accident and my shoulder injuries.

"Service treatment records show complaints of shoulder pain after a tank rollover in November of 1994. A diagnosis of mild contusion was listed. There were no additional complaints, diagnosis, or treatment related to the shoulders while on active duty."

Here is the kicker:

"On VA examination, diagnosis of the left shoulder blah blah were listed and the EXAMINER opined that your current disability was not likely related to the contusion noted during military service."

I am not going to get mad and let this ruin my evening. You guys prepared me for this. I know that I was fine before I ran a Bradley sideways into a tank ditch at 35 miles an hour. I know that it has to be documented. The examiner simply thought that there was no way that it could cause the damage that I have. I have requested all of my military personnel and medical records. This week I will also gain copies of every C&P exam that they have on me.

Do you guys think that I should get a VSO? You guys are really all that I have.

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sorry to hear about your denial. Take the copies of records you have requested and get an IMO. You may be able to get your PCP to write one but at this point I think you need a pro like Dr. Bash. If he thinks your condition is service connected he will write an IMO that will win.

Submit the IMO and ask for a reconsideration of your claim based on new evidence. If you do this within a year you will retain your effective date of your original claim.

Good Luck.

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Rdawg,,,,,that is excellant suggestions for our member. I would do that spcdearman. However I would not get a VSO .....I would get a Lawyer for sure and continue with a leveled playing field. NEVER GIVE UP God Bless, C.C.

Edited by Capt.Contaminate (see edit history)
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Hey guys let me ask you something. Basically ,(by not getting mad and breathing), I have determined that here is the lone reason that I am denied. They "SAY" that the damages that I have in my shoulders could not have been from that vehicle rollover accident. But how would a c&p examiner know. I sat in limbo and asked the va why my claim was taking so long for such a cut and dry case. They were waiting for a medical opinion. Turns out it was from an orthopedic surgeon. How can a doctor say that the injuries did not happen in the military even though it is documented and he cannot say how it happened. I was in a C&P exam and the doctor said " Wow what happened to you. A car wreck. I have never been in a car wreck since I have seperated so how could it not be. I mean it makes no sense whatsoever. I see if I had only had a few shoulder issue but this was numerous complaints. VA has really made me mad now. I see to lowball me but to flat out lie? How could he state that the wreck was not bad enough to make these injuries but actually aknowledge that I was involved in a tank rollover accident. Go figure. Man, even with an obvious nexus I still was denied. I really honestly think that it was just to decrease the backlog of claims at the Waco VA>

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Once the doc opines something like this, you have to attack the exam. You can do this in one of 3 ways, the least expensive first:

1. Get a copy of that (unfavorable) med exam. Did the doc list his qualifications? He should say, something like "Orthopedic surgeon...board certified, etc, etc. If he does not, then file a Nod alleging the doc was not qualifed to make this negative statement. A statement that your condition was not related to service is negative, and you have to rebut it someway. You can also rebut that, arguing the examiner did not give his medical rationale as to "Why" it was not related to service.

2. Get "new and material evidence". In other words, go to your VA, tell them you dont like that doc, and you want another one. If he writes something in your record suggesting your injury was related to service you can use his statements to rebut the c and p examiner.

3. Get an IMO/IME. You go to a private doc who specializes in IMO's

In either of these three cases you will need to appeal, so get your NOD ready. Its frustrating but most of us have been through it. Here, I will move over and you can climb on the hampster wheel with me.

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I am not feeling to well today (cold front and arthritis) and probably will miss work again. Here is the funny part about my enlistment. I was seperated without an actual physical. Basically, I sat in an office with about 1 hour left in my enlistment ( First SGT rushed me out) and a doctor came to me and said. Ok, do you have any injuries that you may want to claim later that you are experiencing. I told him about the tank accident and my lungs. He wrote this information down and performed no examinations. My exit physical took all of 10 minutes. I spent 5 waiting. If I had known I would have ensured that I had my exit exam. I didnt even get a dental exit exam and it states that on my DD-214. But this would not help would it?

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Bronco

Is there any more room on that wheel with YALL?

Here is a remand (?) i think?

However, a review of the

January 1988 rating decision reveals that it was clearly and

unmistakably erroneous for failing to grant service

connection for tinnitus. The evidence at the time of that

decision showed a motor vehicle accident in service with

complaints of head pain and neck trouble, as well as a report

at the time that the Veteran may have hit his head on the

front mirror at the time of the accident. The Board thus

finds that the RO's January 1988 conclusion that there was no

evidence of in-service head injury was clearly and

unmistakably erroneous.

This is me in a nutshell

Edited by SpcDearman (see edit history)
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Sorry to hear about your denial..But don't ever give up..I fought the VA for years about flat feet and bad knees. I finally got ahold of my exit physical (the same one that was sent to the med board that put me out of the Army) and these items were listed on the physical. It took a couple of years and several C&P exams but I was recently awarded for these conditions.You can request a copy of your exit physical (and med board board proceedings if applicable) from the JSRC , it will take a couple of months but they will send them to you.Also I would do what was previously suggested and get an IMO from a good Orthepedic DR and would consider one of the recommended docs that are remmended on here.Also EVERY TIME you see your PCP complain about the conditions and the arthritis and pain.KEEP TRYING and NEVER GIVE UP........................................Grid

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Bronco

Is there any more room on that wheel with YALL?

Here is a remand (?) i think?

However, a review of the

January 1988 rating decision reveals that it was clearly and

unmistakably erroneous for failing to grant service

connection for tinnitus. The evidence at the time of that

decision showed a motor vehicle accident in service with

complaints of head pain and neck trouble, as well as a report

at the time that the Veteran may have hit his head on the

front mirror at the time of the accident. The Board thus

finds that the RO's January 1988 conclusion that there was no

evidence of in-service head injury was clearly and

unmistakably erroneous.

This is me in a nutshell

I think you are confusing the issues. They acknowledged your inservice shoulder injury as well as your current condition. What they don't have is "medical evidence relating your current condition to your in service injury".

Three things are needed to establish service connection.

1.) a current disability -- you have this

2.) an injury/event in service -- you have this also

3.) a nexus -- you don't have this.

The nexus may be satisfied in several ways. One way is presumptive -- ie Agent Orange and DMII. Another way is a Dr's opinion.

Like I said before. You need a medical opinion based on a review of the entire claims file stating that it is at least as likely as not the your current condition is related to your inservice injury. The more rationale the Dr provides the better. I say this because you have a negative opinion already. A good IMO will put your claim in relative equipose which means you win.

Good luck.

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I just noticed they called it "CUE". You need to appeal that, and submit evidence to the contrary. Go through your medical records and find a doc who examined you and opinined to the contrary.

The "CUE" standard is very strict.. AND

the VA MUST go through a very strict process to "sever" service connection. If you can find any evidence to the contrary to make it debatable it isnt CUE. This is all in your favor.

If this is at the BVA level, consider getting an attorney, pronto, to rebut this. And, yes, you may have to pay for an IMO to make this happen.

Edited by broncovet (see edit history)
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Dang you guys responed fast and I appreciate it. You gents are throwing things at me that I never even considered and i have been pondering this denial since yesterday.

Gridsmasher11 said : "You can request a copy of your exit physical (and med board board proceedings if applicable) from the JSRC , it will take a couple of months but they will send them to you." _ I really want to see this due to my physical only lasting 5 minutes.

R-Dizzle said: 1.) a current disability -- you have this

2.) an injury/event in service -- you have this also

3.) a nexus -- you don't have this. _ And I was so cocky thinking my records would link the dots. biggrin.png

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I just noticed they called it "CUE". You need to appeal that, and submit evidence to the contrary. Go through your medical records and find a doc who examined you and opinined to the contrary.

The "CUE" standard is very strict.. AND

the VA MUST go through a very strict process to "sever" service connection. If you can find any evidence to the contrary to make it debatable it isnt CUE. This is all in your favor.

If this is at the BVA level, consider getting an attorney, pronto, to rebut this. And, yes, you may have to pay for an IMO to make this happen.

This is actually my first claim for benefits. I find it hard to believe that the doctor could opine that it was not service connected. It happened in a M2A2 Bradley in the pitch dark and I was even medevac'd to Darnell Army Hospital for it.

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I just noticed they called it "CUE". You need to appeal that, and submit evidence to the contrary. Go through your medical records and find a doc who examined you and opinined to the contrary.

The "CUE" standard is very strict.. AND

the VA MUST go through a very strict process to "sever" service connection. If you can find any evidence to the contrary to make it debatable it isnt CUE. This is all in your favor.

If this is at the BVA level, consider getting an attorney, pronto, to rebut this. And, yes, you may have to pay for an IMO to make this happen.

I apologize but this was not mine I will post mine mementarily.

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the other thing I forgot to mention is if you had an intercurrent injuries. This means did you have a post service injury like on the job where you recieved workmans compensation. If you did and it is documented you will have a tough time getting service connected. That is why the IMO dr needs all of your records. He/She may be able to say that the in service injury made it more likely that you would reinjure yourself in the future and it should still be service connected.

In my case, years before I claimed service connection I went to the Dr many times complaining abount pain and limitation of motiaon. Each time thay asked me,"Did this occur at work, or was it a slip and fall or auto accident?". Each time I answered in the negative.

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the other thing I forgot to mention is if you had an intercurrent injuries. This means did you have a post service injury like on the job where you recieved workmans compensation. If you did and it is documented you will have a tough time getting service connected. That is why the IMO dr needs all of your records. He/She may be able to say that the in service injury made it more likely that you would reinjure yourself in the future and it should still be service connected.

In my case, years before I claimed service connection I went to the Dr many times complaining abount pain and limitation of motiaon. Each time thay asked me,"Did this occur at work, or was it a slip and fall or auto accident?". Each time I answered in the negative.

Thats the sad part about it. I have had no slips or trips or falls or anything after the military. I did just like you did and self medicated with motrin and hung in there. I was shocked to get the MRI results. I should have to send paperwork for my records (NPRC has been requested to send directly to me)but shouoldnt I be able to get the C&P exams from the VAMC?

I really do think that I may be able to turn this into my favor. I want to know how qualified this doctor was to opine that my injuries could not be caused by a tank rollover. Just because they rushed me out of the military doesntr mean that they should have not given me an exit physical.

Edited by SpcDearman (see edit history)
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Dawg is correct...you need a nexus. Your C and P was "negative" for a nexus. You need to rebut this, and it can only be done with medical information.

In other words, if Doc A says it was not caused in service, and Doc B says it was, then this is a theoretical "benefit of the doubt" putting it in equipose, where you win.

However, sometimes the Board can choose one doc over another and give his reason why they chose one docs opinion. Or, more likely, the VA just "shreds" your positive evidence and you cant figure that out for 5 years.

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SPC Dearman

I like Dr. Bash, he has helped many a Vet. However, I think you are right staying away from him for 2 reasons:

1. As you said, he is expensive.

2. He is a little "too good" for his own good. Let me explain. The VA is VERY familiar with Bash. So, when they get a chance, they reject his opinion. You see, often the VA does not have to justify why they picked "Dr. A's" opinion over "Dr. B". They simply deny, citing Dr. A's opinion.

While its wrong for the VA to do just that, they do it anyway, and dare the Vet to challenge them in appeals. It takes a very sharp lawyer to beat them. One reason: The CAVC is not a trier of fact, and must accept BVA's determinations relative to facts in most cases. The CAVC is there to make sure the BVA complied with the laws, not whether the higher court has a different opinion in regards to "issues of facts".

You see, the benefit of the doubt (BOD) should control when 2 docs opinions are in conflict, with a balance of positive and negative evidence. But the VA reaches into their bag of tricks. They cite, for example,

Dr. A's opinion was more probative because Dr. B did not review the entire C file. OR

Dr. B failed to give medical rationale as to why he opined the Vets injury was related to service.

There are several "gotcha's" to BOD that the VA takes full advantage of.

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