What Is Best Way To Request Secondary Compensation

[toddt]

Was granted 30% for scar as a result of surgery for adenocycstic carcinoma. Surgery was radical neck dissection - which left me with limited range of motion of my right arm (due to shoulder muscles being removed). Attempted to bring this up at my C&P exam but the doctor didn't do anything about it.

Can I request another C&P exam for limited motion? If so, how would that request be made? Or,

do I need to appeal via a NOD stating that the doctor should have tested me for range of motion?

[toddt]

Berta

Thanks for all the advice it is much appreciated. I am attaching the decision as you requested. You are more than likely correct that I will need to file a new claim. I was hoping that I would not have to wait another 10 months or more.

[Berta]

I hope others will opine on whether this must be a new claim, too...but I think it would have to be.

You had photographic evidence that they considered. GOOD for you!

For some claims a photo, with a dated time stamp , can be worth a thousand words.

The decision, under the most recent Scar ratings criteria ,does sound fair.

[toddt]

Actually the C&P doctor had the photo taken while I was there.

In rereading the decision I was wondering if it would be feasible to request an increase to 50% because of this paragraph:

"A higher evaluation of 50% is not warranted unless the evidence shows visible ... or asymmetry of two features . . . eyes, lips . . ."

When raising my right arm I experience pain and this is manifested in the distortion of my lips and right eye. I also experience fatigue which causes my right eye to droop and my lower right lip be distorted. Perhaps from this they would then connect range of motion.

I would not expect to get 50% but it might be worth a try just to connect my limited range of motion. What do you think?

Edited February 4, 2014 by toddt

[TiredCoastie]

TiredCoastie, unfortunately my outside PCP who I had been seeing for close to 20 years was killed in an automobile accident. I will try the DBQ with the VA PCP if that doesn't work and I appeal shouldn't the VA schedule me for a C&P exam to ascertain my claims?

Oh wow, that's terrible on so many different levels. Is there another practice that has picked up this doctor's records? It's an option seeing as that doctor or group might be more sympathetic having been able to see the continuity of care. There have been postings on hadit by vets who've had trouble getting VA PCPs to fill out DBQs.

The big question at this point is what kind of submission should carry your proof of the loss of ROM, which is called new and material evidence of a disability which the VA has no specific knowledge. The underlying question to the big one is whether or not the VA should have known about the loss of ROM or suspected enough to subject you to a C&P exam. So there's a strong possibility that a new claim vs a NOD might be the best avenue. Either way, it's going to take a stack of records from you pointing to the loss of muscles and ROM along with a DBQ form or whatever. But it will take one of those different approaches to get them to schedule a C&P or decide they have enough evidence with your records in hand. Like Berta, I'd like to hear some other opinions before I pulled that trigger.

If the VA PCP doesn't work, my advice is to approach whomever got your last 20 years of records. Those records and the other patients should have gone somewhere...

If you want to pursue the asymmetric aspects to take you to 50% with the scarring, you'll undoubtedly need to submit new and material evidence showing that this problem exists, for how long, and to what extent. You could submit this with the ROM discussion, reopening the prior decision. Because the C&P examiner did not do an ROM determination, the asymmetric facial aspects would not have been detected, correct? So this might also fit well within a new claim.

I hope others will opine on whether this must be a new claim, too...but I think it would have to be.

You had photographic evidence that they considered. GOOD for you!

For some claims a photo, with a dated time stamp , can be worth a thousand words.

The decision, under the most recent Scar ratings criteria ,does sound fair.

Asknod and Harleyman are good guys to ask directly. Another option may be a discussion with attorney via a free consulation. I like your point, Berta, that there had to be some sort of mistake by the RO to submit a NOD. The VA did not consider a disability of which they were not specifically informed.

Thinking the VA is going to do the right thing by a vet in the claims process and add obvious although unclaimed disabilities is difficult to consider a mistake knowing how they usually do business. Who knows the speciality qualifications of the C&P examiner? If that wasn't a doctor who is very familiar with this type of cancer and the specific treatment, that examiner may not have even thought about wider consequences beyond what they did. In fact, adding the scar was a nice step for whomever did the C&P.

Certainly it's time to collect records of the loss of the muscles and the ROM. Should this be done with a DBQ form? Maybe. I think it's going to be important to show that Toddt never regained ROM after the surgery, or that if he did, what his body was left with afterward couldn't maintain it as a direct result of the cancer surgery. This proof will require medical records going back quite a few years.

One option would be to submit the evidence with a claim form and be ready to fight if it comes back denied. The other option would be to NOD the last decision and include the new and material evidence. Depending on how his servicing RO handles fully developed claims, this might be a good option right now. If they'll get it done relatively quickly, Toddt would have two decisions to appeal potentially. If they drag their feet (like what happened to me), he may eventually have to NOD the decision in question under a duty to assist for an obvious disability.

If he were me and I had to make a decision this minute, I'd go to whomever has my last twenty years of records, get an evaluation, submit a big package of service and post-service records showing the loss of the muscles and ROM with a nexus letter and DBQ with a fully developed claim form, and see what happens. This option potentially preserves as much time as possible along with sea room to maneuver later while addressing the problem directly. If the VA were to take enough time to press into the deadline for a NOD on the previous claim, I might then submit one.

Again, hoping for some additional thoughts from the more experienced....

Edited February 3, 2014 by TiredCoastie

[TiredCoastie]

Should have thought of him before with Asknod and Harlyeman - Meghp0405 is a great guy to ask as well on this...

[toddt]

To set the record straight. My cancer was diagnosed in 1969 and the surgery to remove it was in 1969. I had been on active duty for 10 years by that time. I was asked if I wanted to be discharged with a 10% disability rating. My reply to that was: NO. I remained on active duty until August 1980 when I retired.

My service medical record only has two pages regarding the diagnosis and "elimination" of the cancer via radical neck dissection. There are of course several pages stating that I was transferred from the hospital back to active duty and that I had gone before a cancer board, etc. Other than that I have not been treated for any recurrence nor has my limited ROM been diagnosed or even mentioned. I have learned to live with it. There are things that are difficult for me to do but I usually find away to accomplish them.

As an after thought, just remembered, because it is my right arm that has the limited ROM my salute during my active duty time was not up to strict military standards, however, I was never reprimanded for sloppiness.