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Do I Have A Secondary Claim & Is It To Late?


jecsb4

Question

Hi Veterans and Friends & Families of Veterans,

I am a army reservist that was mobilized in 2003 and then again in 2005 for state side duty. I filed a claim for several issues, and received a 0% for bilateral hernias, 0% for flat feet, 10% hammer toes, 20% for wrist ligament severed, and 10% for bunions for a combined 30% rating. VA denied me for several other issues. My claim dates back to service from March 04 - Jan 05. I filed a NOD with some additional evidence. I have not heard back from the VARO, except for their standard letter saying they are working on my claim.

My question is this, my left foot suffferd a posterior tibial tendon dysfunction - (a small tear in the ltendon) which causes severe pain while I walk. This was discovered in Sept 2006. Is it to late to file this as an additonal claim secondardy condition to my flat feet?

My civilian doctor does not reccomend surgery at this time, I have been wearing custom fitted orthodicts for years and I have been to 3 different doctors and thhey feel that I am disabled an can only have a desk job.

VA only gave me 0% flat feet and have not requested a C&P for my feet! Even after I have asked for one.

If I can file thisi new claim, does that mean they will try to answer the new claims before they adddress my NOD?

Thanks all!

Joe

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Joe- I assume that your NOD covered all the conditions they denied- so if it covered the flat feet-this could certainly support that claim.

I see this not as a new claim but as new evidence for what you had Nodded.

Did the VA give you SC "0" rating for those conditions or NSC rating?

Flat feet= pes planus-

This vet was granted SC due to aggravate of pes planus condition prior to service:

http://www.va.gov/vetapp99/files1/9908371.txt

This vet was denied increase but the rating criteria is in this claim:

http://www.va.gov/vetapp97/files4/9735118.txt

This vet was denied past higher rating but the new evidence granted 30% award for the pes planus which had gotten worse:

http://www.va.gov/vetapp03/files/0306807.txt

Would your private doctor be able to prepare an IMO? An independent Medical Opinion that states that he/she reviewed your SMRs , (if the rating was SC -and not NSC -that helps you a lot)

found that the condition of flat feet began inservice, refer to the specific SMRs for any treatment or complaints of pain,

and that more than likely the posterior tibial tendon dysfunction you currently suffer from is due to the flat feet from service and that your treatment reflects a higher level of disability than "0".

It would not hurt to give this doc the rating schedule too:

"Pes planus is rated under Code 5276, which provides that

pronounced bilateral pes planus, with marked pronation,

extreme tenderness of the plantar surfaces, marked inward

displacement and severe spasm of the tendo Achilles, and no

improvement with orthotics, is rated 50 percent disabling.

Severe bilateral pes planus, with objective evidence of

marked deformity, accentuated pain on manipulation or use,

swelling on use, and characteristic callosities is rated 30

percent. Moderate pes planus, with weight bearing line over

or medial to the great toe, inward bowing of the tendo

achillis, and pain on manipulation and use of the feet is

rated 10 percent. 38 C.F.R. § 4.71a."

The VA is not refusing to give you a C & P in my opinion-and with good evidence of the disability and it's link to your service you might not even need one.

I would even suggest send them a picture of your feet with the orthodontics on them along with the medical opinion.

Here in Buffalo VARO they are a year behind on addressing NODs.

I just dont think they have gotten to your NOD yet and that would trigger a C & P -I am sure-

but by sending them more medical evidence it could certainly help too.

Have you called the 800# (1-800-827-1000) after the robot answers ,hit "1", and then hit "0" and asked them for a status of your claim?

Tell them when you filed the NOD ( always good to check that they have it) and if any action has been taken yet on the claim.

Do you have any service organization representing you?

What else did you claim?

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Berta,

Thanks for your reply. The VA did give me a SC of 0% for flat feet. Yes, I think its a good suggestion that you have, to get my DR to write up a letter that states my feet condition got aggreverated from active duty.

I have the Texas Veterans Commission SO "helping me". I have done everything myself, they are understaffed and never can remember the details of my case. I mostly used them to turn med evidence in and get a time stamp copy.

I called the 1800 # and they say they received my NOD / De Novo Review (which I submitted in Apl 2006) and that some of my file is in appeals and the others are pending and that the VA is requestiing additional medical evidence from me. This is frustrating to me, since I have given them all my documentation and letters from doctors - except for this new tear in my tendon on my foot - which I will sumbitt ASAP. The VA rep said thhat it looks like my claims / appeal will take a ling time!! No S _it!!.

I also claimed migraines, denied due to no connection to duty same with depression. VA said I was depressed due to the death of my 19 year old son (traffic accident) - but my point on this was duty aggreverated it by taking me away from my home and disrupted the greiving procress by taking me away from family.

Joe

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Jecarey,

If you have submitted new claims while there are issues pending on appeal, the VA will decide the new claims before woking your appeal, ulimately slowing down the whole process.

In reference to your left foot injury, did it happen while you were called up on active duty? If so, is it noted in your medical records? When were the dates you were called up to active duty? The VA may not be able to rate this as a seperate disability because it is the same bodily etiology as your service-connected flat feet. If this is the case the VA will take into consideration the disabiling symptoms of the torn ligament along with the flat feet and this would be reflected in the rating.

§4.57 Static foot deformities.

It is essential to make an initial distinction between bilateral flatfoot as a congenital or as an acquired condition. The congenital condition, with depression of the arch, but no evidence of abnormal callosities, areas of pressure, strain or demonstrable tenderness, is a congenital abnormality which is not compensable or pensionable. In the acquired condition, it is to be remembered that depression of the longitudinal arch, or the degree of depression, is not the essential feature. The attention should be given to anatomical changes, as compared to normal, in the relationship of the foot and leg, particularly to the inward rotation of the superior portion of the os calcis, medial deviation of the insertion of the Achilles tendon, the medial tilting of the upper border of the astragalus. This is an unfavorable mechanical relationship of the parts. A plumb line dropped from the middle of the patella falls inside of the normal point. The forepart of the foot is abducted, and the foot everted. The plantar surface of the foot is painful and shows demonstrable tenderness, and manipulation of the foot produces spasm of the Achilles tendon, peroneal spasm due to adhesion about the peroneal sheaths, and other evidence of pain and limited motion. The symptoms should be apparent without regard to exercise. In severe cases there is gaping of bones on the inner border of the foot, and rigid valgus position with loss of the power of inversion and adduction. Exercise with undeveloped or unbalanced musculature, producing chronic irritation, can be an aggravating factor. In the absence of trauma or other definite evidence of aggravation, service connection is not in order for pes cavus which is a typically congenital or juvenile disease.

§4.14 Avoidance of pyramiding.

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided.

Also, Berta is correct, the VA may have not needed to conduct a C&P exam if there was sufficient medical documentation in your c-file to rate the condition.

Vike 17

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Joe- Vike is right about the new claims - but then again a NOD has to be filed if you disagree with anything-and it appears these are all not "new" but still they will take time.

I am sorry about your loss. This happened while you were on active duty- I would-if I were you- certainly support this claim with letters from family members as to what happened. Make sure the VA knows what happened.

This is very sad and goes to show the sacrifices that you men and women make while serving the USA when something like this happens at home.

Did you get the diagnosis of depression and any treatment at all for this depression while in the service?

I have never seen this type of claim but that does not mean it cannot be a valid claim.

This BVA decision had to consider the veteran's loss of his children causing depression that was after his Vietnam experience but during service.

http://www.va.gov/vetapp95/files2/9505183.txt

Edited by Berta (see edit history)
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Thank you Berta & Vike.

As far as the loss of my son, it happened in Dec 2003. I cam off active duty in Oct 2003, but then 2 months after he passed, I went back on active duty in March 2004. So the VA is basically saying I was not on AD...

I did see civilain doctors for depression but kept it from the military, due to the stupidity/ fear of my being stimitized, since I was still in the reserves.

I guess I slowed up my appeal, by adding additional claims to my orginal file and will further slow it up when I add this new one. But I guess it can't be avoided. At least I do have a civilain job, and I know there are alot of VETS and families in much worse financial, emotional and physical pain than I.

Joe

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Jecarey,

You stated you left active duty in Oct. 2003, and the in Dec. 2003, your depression manifested itself. If you weren't on active duty when the depression manifetsed itself, then there really isn't a basis for service-connection.

Further, the only way this would fall under the presumptive rule is if you were a POW.

Also, I don't think because you were in the reserves at the time and you were called up a couple of months later after the incident, that it would be considered as aggravating a prexisting condition. This would be the case if we were talking about a physical injury, but I have never heard or seen the VA award service-connection on this basis for a mental disorder. I may be wrong though. You may want to check some court decisions to see if they are out there.

Carlie,

Here is the rating criteria for the wrist;

5214 Wrist, ankylosis of:

Unfavorable, in any degree of palmar flexion, or with

ulnar or radial deviation.......................................................................

..... 50......... 40

Any other position, except favorable............................................................ 40......... 30

Favorable in 20º to 30º dorsiflexion.............................................................. 30......... 20

Note: Extremely unfavorable ankylosis will be rated as loss of use of hands under diagnostic code

5125.

5215 Wrist, limitation of motion:

Dorsiflexion less than 15º............................................................................. 10.......... 10

Palmar flexion limited in line with forearm...................................................... 10.......... 10

Vike 17

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