Verification

[Dinnard]

I would like confirmation that I'm correct in my calculation that my husband is at 70% He was denied by DRO review because he is not at 70% He has been 70% for 4 years with 50% bilateral, 20% and 10%, I have used several different formats and always come up with 68% which would be 70%.

A little background. He was a Veteran Benefit Rep in Kentucky. In July, 2010 he had surgery on his left foot, screws and plates were put in and his ankle was fused. The Kentucky Department of Veteran Affairs denied his request for time off for surgery and recovery, He was desperate to get pain relief so he took retirement with only 10 years of service. He was given 3 months of 100%, however his foot was not healing and he needed extended recovery but was denied without having the required exam. His doctor provided the necessary info supporting this, however we had a trip planned and paid for prior to his having surgery to go on vacation with our children. He rescheduled one PT appointment for our trip. I rented a scooter for him since he could not walk at all. He was denied based on missing the one PT appointment.

The surgery was considered a failure due to the screws not being placed correctly and the pain increased rather than decreased. He was/is having to take multiple medications for pain and now has a VA provided scooter, lift and ramp. He was advised to file for IU which he did and was denied. In every stage he has been denied for something different such as he could do sedentary work. There has been no consistency. I seriously doubt anyone will hire a 65 year old man using a scooter and taking medications which cause him to fall asleep every time he sits down, Here are my questions.

Am I correct that he meets the % required for IU?

Was filing a CUE the right way to go?

Would this be retro to November, 2010 when he was first denied?

The CUE was filed in May in Nashville, what would be estimated time for response?

Thank you so much for any info you can provide.

[Berta]

Can you scan and post the Reasons and Bases part and the evidence list here (cover name,address, C file number)?

I meant the actual Statement of the Case.

It is their actual decision narrative we need to read and how they used the evidence to arrive at the decision, as they stated in the evidence list here:

"09-12-2011 VA Notification letter sent to Veteran."

Also this was the VCAA letter sent :

VA Notification letter dated September 12, 2011.

Were you able to send to the VA exactly what evidence they still needed as within the Sept 11, 2011 VCAA letter?

[Dinnard]

I think this is what you want.

September 12, 2011

DEPARTMENT OF VETERANS AFFAIRS

VA Regional Office

110 9th Avenue South

Nashville TN 37203

In Reply Refer To: 320/214/bsb

c 24 981 835

Dear :

We made a decision on your claim for service connected compensation received on

May 27, 2011.

This letter tells you what we decided. It includes a copy of our rating decision that gives the evidence used and reasons for our decision. We have also included information about additional benefits, what to do if you disagree with our decision, and who to contact if you have questions or need assistance.

What We Decided

• We determined that the following service connected condition has worsened, so we granted an increase in your assigned percentage:

Medical Description

Old Percent (%) Assigned

New Percent (%) Assigned

Effective Date

Left ankle degenerative joint disease

10%

20%

May 27, 2011

• We determined that the following service connected conditions haven't changed:

Medical Description

Percent(%) Assigned

Bilateral pes planus

50%

Right ankle degenerative joint disease

10%

• Entitlement to individual unemployability is denied.

Your compensation payment will continue unchanged.

1111111111111111111111111111111111111111111111111111111111111111111111111111111111111

c 24 981 835

Your overall or combined rating remains 70%. We do not add the individual percentages of each condition to determine your combined rating. We use a combined rating table that considers the effect from the most serious to the least serious conditions.

We have enclosed a copy of your Rating Decision for your review. It provides a detailed explanation of our decision, the evidence considered, and the reasons for our decision. Your Rating Decision and this letter constitute our decision based on your claim received on

May 27, 2011. It represents all claims we understood to be specifically made, implied, or inferred in that claim.

We enclosed a VA Form 21-8764, "Disability Compensation Award Attachment-Important

Information," which explains certain factors concerning your benefits.

Additional Allowances for Dependents -What You Should Know Veterans having a 30% or more service-connected condition may be entitled to additional compensation for a spouse, dependent parents, or unmarried children under 18 (or under 23 if

attending an approved school) or if prior to age 18 the child has become permanently incapable

of self-support because of mental or physical defect. The additional benefit for a spouse is payable in a higher amount when the spouse is a patient in a nursing home or so disabled as to require the regular aid and attendance of another person.

Are You Entitled to Additional Benefits?

You may be eligible for medical care by the VA health care system for any service connected disability. You may apply for medical care or treatment at the nearest medical facility. If you apply in person, present a copy of this letter to the Patient Registration/Eligibility Section. If you apply by writing a letter, include your VA file number and a copy of this letter.

REDUCE OR ELIMINATE YOUR MEDICAL CO-PAYMENTS

If you receive care at a VA medical facility, please call our Health Benefits Call Center at 1-877-222-VETS (8387) or notify your local VA medical center of this change in your compensation benefits. This rating decision may reduce or eliminate your co­ payments for your VA-provided medical care. You may also be eligible for a refund based on this rating decision. Information regarding VA health care eligibility and co-payments is available at our website www.va.gov/healtheligibility.

3

c 24 981 835

You should contact your State office of veteran's affairs for information on any tax, license, or fee-related benefits for which you may be eligible as a veteran (or surviving dependent of a veteran). State offices of veteran's affairs are available at http://www.va.gov/statedva.htm.

You may be able to receive vocational rehabilitation employment services. The enclosed VA Form 28-8890, "Important Information About Vocational Rehabilitation Benefits," explains this benefit completely. To apply for this benefit, complete and return the enclosed VA Form

28-1900, "Disabled Veterans Application for Vocational Rehabilitation."

What You Should Do If You Disagree With Our Decision

lfyou do not agree with our decision, you should write and tell us why. You have one year from the date ofthis letter to appeal the decision. The enclosed VA Form 4107, "Your Rights to Appeal Our Decision, " explains your right to appeal.

If You Have Questions or Need Assistance

If you have any questions, you may contact us by telephone, e-mail, or letter.

If you

Here is what to do.

Telephone

Call us at 1-800-827-1000. If you use a Telecommunications Device for the Deaf (TDD), the number is 1-800-829-4833.

Use the Internet

Send electronic inquiries through the Internet at https://iris.va.gov.

Write

Put your full name and VA file number on the letter. Please send all correspondence to the address at the top of this letter.

In all cases, be sure to refer to your VA file number 24 981 835.

If you are looking for general information about benefits and eligibility, you should visit our website at https://www.va.gov, or search the Frequently Asked Questions (FAQs) at httpsva.gov.

c 24 981 835

We sent a copy of this letter to your representative, Kentucky Center for Veterans Affairs, whom you can also contact if you have questions or need assistance.

Sincerely yours,

7. &.'At4t

T.E.Kraft

Manager, Veterans Service Center

E-mail us at https://iris.va.gov

Enclosures: Rating Decision of September 9, 2011

VA Form 21-8764

VA Form 28-1900

VA Form 28-8890

VA Form 4107 cc: KCVA

September 12, 2011

DEPARTMENT OF VETERANS AFFAIRS

VA Regional Office

110 9th Avenue South

Nashville TN 37203

In Reply Refer To: 320/214/bsb

c 24 981 835

Dear :

We made a decision on your claim for service connected compensation received on

May 27, 2011.

This letter tells you what we decided. It includes a copy of our rating decision that gives the evidence used and reasons for our decision. We have also included information about additional benefits, what to do if you disagree with our decision, and who to contact if you have questions or need assistance.

What We Decided

• We determined that the following service connected condition has worsened, so we granted an increase in your assigned percentage:

Medical Description

Old Percent (%) Assigned

New Percent (%) Assigned

Effective Date

Left ankle degenerative joint disease

10%

20%

May 27, 2011

• We determined that the following service connected conditions haven't changed:

Medical Description

Percent(%) Assigned

Bilateral pes planus

50%

Right ankle degenerative joint disease

10%

• Entitlement to individual unemployability is denied.

Your compensation payment will continue unchanged.

1111111111111111111111111111111111111111111111111111111111111111111111111111111111111

c 24 981 835

Your overall or combined rating remains 70%. We do not add the individual percentages of each condition to determine your combined rating. We use a combined rating table that considers the effect from the most serious to the least serious conditions.

We have enclosed a copy of your Rating Decision for your review. It provides a detailed explanation of our decision, the evidence considered, and the reasons for our decision. Your Rating Decision and this letter constitute our decision based on your claim received on

May 27, 2011. It represents all claims we understood to be specifically made, implied, or inferred in that claim.

We enclosed a VA Form 21-8764, "Disability Compensation Award Attachment-Important

Information," which explains certain factors concerning your benefits.

Additional Allowances for Dependents -What You Should Know Veterans having a 30% or more service-connected condition may be entitled to additional compensation for a spouse, dependent parents, or unmarried children under 18 (or under 23 if

attending an approved school) or if prior to age 18 the child has become permanently incapable

of self-support because of mental or physical defect. The additional benefit for a spouse is payable in a higher amount when the spouse is a patient in a nursing home or so disabled as to require the regular aid and attendance of another person.

Are You Entitled to Additional Benefits?

You may be eligible for medical care by the VA health care system for any service connected disability. You may apply for medical care or treatment at the nearest medical facility. If you apply in person, present a copy of this letter to the Patient Registration/Eligibility Section. If you apply by writing a letter, include your VA file number and a copy of this letter.

REDUCE OR ELIMINATE YOUR MEDICAL CO-PAYMENTS

If you receive care at a VA medical facility, please call our Health Benefits Call Center at 1-877-222-VETS (8387) or notify your local VA medical center of this change in your compensation benefits. This rating decision may reduce or eliminate your co­ payments for your VA-provided medical care. You may also be eligible for a refund based on this rating decision. Information regarding VA health care eligibility and co-payments is available at our website www.va.gov/healtheligibility.

3

c 24 981 835

You should contact your State office of veteran's affairs for information on any tax, license, or fee-related benefits for which you may be eligible as a veteran (or surviving dependent of a veteran). State offices of veteran's affairs are available at http://www.va.gov/statedva.htm.

You may be able to receive vocational rehabilitation employment services. The enclosed VA Form 28-8890, "Important Information About Vocational Rehabilitation Benefits," explains this benefit completely. To apply for this benefit, complete and return the enclosed VA Form

28-1900, "Disabled Veterans Application for Vocational Rehabilitation."

What You Should Do If You Disagree With Our Decision

lfyou do not agree with our decision, you should write and tell us why. You have one year from the date ofthis letter to appeal the decision. The enclosed VA Form 4107, "Your Rights to Appeal Our Decision, " explains your right to appeal.

If You Have Questions or Need Assistance

If you have any questions, you may contact us by telephone, e-mail, or letter.

If you

Here is what to do.

Telephone

Call us at 1-800-827-1000. If you use a Telecommunications Device for the Deaf (TDD), the number is 1-800-829-4833.

Use the Internet

Send electronic inquiries through the Internet at https://iris.va.gov.

Write

Put your full name and VA file number on the letter. Please send all correspondence to the address at the top of this letter.

In all cases, be sure to refer to your VA file number 24 981 835.

If you are looking for general information about benefits and eligibility, you should visit our website at https://www.va.gov, or search the Frequently Asked Questions (FAQs) at httpsva.gov.

c 24 981 835

We sent a copy of this letter to your representative, Kentucky Center for Veterans Affairs, whom you can also contact if you have questions or need assistance.

Sincerely yours,

7. &.'At4t

T.E.Kraft

Manager, Veterans Service Center

E-mail us at https://iris.va.gov

Enclosures: Rating Decision of September 9, 2011

VA Form 21-8764

VA Form 28-1900

VA Form 28-8890

VA Form 4107 cc: KCVA

VA File Number

24 981 835

Represented by:

KENTUCKY CENTER FOR VETERANS AFFAIRS

Rating Decision

September 9, 2011

INTRODUCTION

The records reflect that you are a veteran of the Vietnam Era. You served in the Air Force from July 29, 1968 to July 3, 1969. You filed a new claim for benefits that was received on May 27, 2011. Based on a review of the evidence listed below, we have made the following decision(s) on your claim.

DECISION

1 . Evaluation ofbilateral pes planus, which is currently 50 percent disabling, is continued.

2 . Evaluation ofleft ankle degenerative joint disease, which is currently 10 percent disabling, is increased to an evaluation of20 percent assigned from May 27, 2011.

3 . Evaluation of right ankle degenerative joint disease, which is currently 10 percent disabling, is continued.

4 . Entitlement to individual unemployability is denied.

EVIDENCE

• VA Fonn 21-4138, Statement in Support of Claim, received on May 27,2011 with a statement from veteran, VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, a Lay Statement from Susan E. Stinnett, A Lay Statement from Dr. Photos, and a letter from Timothy D Carver KDVA

• VA treatment reports from VAMC Lexington from August 19, 2010 to June 24, 2011 and from July 11, 2011 to August 17, 2011

• VCAA letter sent to veteran dated July 14, 2011

• Information requested from KY Dept. of Veterans Affairs dated July 14, 2011 and information received on July 25, 2011

• VA Form 21-4138, Statement in Support of Claim, received on July 22, 2011 with VCAA Notice Response stating you have no additional evidence to submit to decide the claim as soon as possible

• VA general medical examination at VAMC Lexington dated July 19, 2011

REASONS FOR DECISION

1. Evaluation of bilateral pes planus currently evaluated as 50 percent disabling.

The evaluation ofbilateral pes planus is continued as 50 percent disabling because the evidence of record fails to show a worsening of this condition which would warrant an increase above your current 50 percent evaluation. It is noted that your claim contends an increase in this condition. The Lay Statement from your spouse noted your daily pain, the statement from Dr. Photos noted you to be unable to ambulate or stand and noted your inability to work due to your high level of pain and inability to walk and , the Lay Statement from Timothy D. Carver noting how the condition affected your job. The information requested from Kentucky Dept. of Veterans Affairs noted that you retired June 30, 2010. The recent VA examination showed you diagnosed with bilateral pes planus. On physical exam you were noted to walk with grimace on your face, noted you use a cane, have an antalgic, slow, gait, decreased strength noted to right ankle,

tenderness or laxity noted bilateral ankles, positive edema to left ankle, no joint ankylosis, no objective joint abnormality, no evidence of inflammatory arthritis, painful motion, evidence of flatfoot, arch present on non weight bearing, no arch present on weight bearing, no pain on rest, malalignment not correctable, left foot worsen than the right making it difficult to examine. The examiner stated the effect on usual occupation is decreased mobility, weakness, fatigue, decreased strength, lower extremity pain, which has a mild effect on sedentary activities and that you would not be able to perform any physical activities. Based on the objective findings, your 50 percent evaluation is confirmed and continued. An evaluation of 50 percent is granted if the record shows flatfeet not improved by orthopedic shoes or appliances with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm

of the tendo Achilles on manipulation. This evaluation represents the maximum schedular evaluation under this criteria. A higher evaluation would require evidence consistent with extra schedular findings. These findings must present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods ofhospitalization as to render impractical the application of the regular schedular standards. The evidence reviewed does not present such a disability picture in which an extra schedular finding is warranted.

2. Evaluation of left ankle degenerative joint disease currently evaluated as 10 percent disabling.

The evaluation ofleft ankle degenerative joint disease which is currently evaluated as 10 percent disabling is increased to an evaluation of 20 percent because the evidence of record shows a worsening of this condition which warrants this increase above your current 10 percent evaluation. It is noted that your claim contends an increase in this condition. The Lay Statement from your spouse noted your daily pain, the statement from Dr. Photos noted you to be unable to ambulate or stand and no

[Dinnard]

I hope this is what you asked for. I'm sorry to post so much. I appreciate all the help from everyone.

[Berta]

They made a good point here:

"This evaluation represents the maximum schedular evaluation under this criteria. A higher evaluation would require evidence consistent with extra schedular findings. These findings must present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods ofhospitalization as to render impractical the application of the regular schedular standards. The evidence reviewed does not present such a disability picture in which an extra schedular finding is warranted."

he could ask for an extrascedular rating....but these claims usually involve additional disabilities (mental or physical)that are due to the main foot condition.

such as:

ORDER

A 30 percent rating for bilateral pes planus is granted 
effective February 4, 1988; a higher rating is denied.

A 30 percent rating for dysthymia secondary to pes planus is 
granted effective January 22, 1992.  A 50 percent rating for 
dysthymia secondary to pes planus is granted from August 16, 
1996, to August 4, 2002.  Higher ratings are denied.

A TDIU rating is granted effective August 16,1996
http://www.va.gov/vetapp03/files/0306850.txt

_____________________________________________________________

The key to your case might lie right here:
“The examiner stated the effect on usual occupation is decreased mobility, weakness, fatigue, decreased strength, lower extremity pain, which has a mild effect on sedentary activities and that you would not be able to perform any physical activities. “

If you can prove more than a 'mild' affect on sedentary activities,that would support 
a claim for ectraschedular consideration.

I have this same condition. In time it can often affect the back,hips, and knees.

I posted here years ago whereby a vet had 10 % for pes planus that eventually caused him knee,
 hip and back disability  and he eventually got 100% SC at the BVA.


I am not sure on what VA means by sedentary activities.Hopefully others will chime in on that.

[Dinnard]

Thanks Berta. He is having wires put on either side of his back with a remote that he can push when the pain gets really bad. I realize that he is not nearly as bad as most of the others on here, however, when you have to stay on pain meds and you have to wear braces on your feet so you can just stand up to go to the bathroom to him it is depilating. He was forced to leave the service because they said his feet were to bad to let him stay in. It was over 20 years later before he filed for disability. I appreciate everyone's input.

[Dinnard]

Finally got our decision today. He was denied again, however once again their reason is WRONG! They agreed that HE DID MEET THE SCHEDULER REQUIREMENTS which was the reason for the denial which we filed the CUE on. But they determined "Entitlement to IU was denied" due to the VA examiner's determination that he was able to do sedentary work. Here is the good part. ALL RECORDS, INCLUDING THE LETTER FROM DR. PHOTOS WERE REVIEWED AND CONSIDERED. IT IS ACCEPTABLE TO RELY UPON A VA EXAMINER'S OPINION OVER THE OPINION OF A PRIVATE EXAMINER, AS THE VA EXAMINER HAS ACCESS TO THE VETERAN'S ENTIRE MEDICAL RECORD, WHEREAS THE PRIATE EXAMINER DOES NOT. Dr. Photos is a VA doctor of podiatry and is the one who has cared for and determined his surgery was a failure leaving him with more pain than before. I just want to ask, do you ever actually look at the files. He has no doctors other than the VA.