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USMC_VET

Secondary vs New Claim VA adjudication

Question

USMC_VET    350

background:

I claimed shin splints secondary to flat foot, i had been seen for shin splints in the military and was noted on exit exam. 

I looked at C&P notes, Flatfoot and plantar fasciitis is listed as "likely as not" so it seems i got that.

However Shin splints were listed as "Less Likely as not" due to flatfoot.

 

Question:

I know that the VA is the supposed to be the adjudicator, if i claim Depression and they decide its PTSD then they give me SC for PTSD and not depression as i had claimed it as.  Since i claimed something as SECONDARY to another claim but as above say well its not related to it are they not obligated to opine on whether it is a SC on its own and not secondary?  They never opine on the SC and its relation to my service just that its not a secondary.

I may be jumping the gun it was only 10 days ago and of course i have a few more months before i get my rating, etc.

Below is the snippet from my EXAM, attached is full C&P. (interesting they show it as only 58 days old.....maybe 58 days old 58 days ago!)

 

 

SHIN SPLINTS AND PES PALANUS/FASCITIS.
Veteran's disability pattern is: (4) a disease with a clear and
specific etiology and diagnosis.

OPINE: The claimed conditions are at least as likely as not r/t
or the result of military service.

RATIONALE : Based on the history, physical examination, review
of the C-file, the VA medical records, and the medical literature. The claimed
conditjions as noted on DBQ exams are a continuation of claimed conditons
vet was c/o in service, incurred in or caused by the strenuous training with
heavy packs, body armor and rifle during service. They, however, were not caused specifically by gulf war
service, as these condtions are not specific to gulf war exposures.


OPINE: the Veteran's shin splints LESS likely as not
proximately due to or the result of bilateral flatfoot.

RATIONALE : Based on the history, physical examination, review
of the C-file, the VA medical records, and the medical literature. Medical
liturature does not support bilateral shin splints as r/t or caused by pes planus, as noted
or 10/2015 radiological findings. Left is stated as mild pesplanus. Severity
of pesplanus a decade ago would have been mild and less apt to be a causation
for exertional shin splints

C&P SHIN SPLINT FLATFEET.pdf

Edited by USMC_VET

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Chuck75    499

"i had been seen for shin splints in the military and was noted on exit exam".

This is the key for direct connection. Assuming that you have the records.

I'd likely NOD the denial, saying that the records show direct service connection.

It may also be that the examiner did not bother to look at the records.

 

Edited by Chuck75

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pwrslm    304

The Opinion is correct.  Medical literature  does not provide the nexus between the two.


What you need is a direct SC if shin splints are noted in your SMR. The RO should have researched the issue, but if they had no clue that the record existed, its something that one should expect.


Document the SC with service medical history.  Get a nexus.  While flat feet might force a more direct impact that theoretically could cause the condition, you would be fighting up hill trying to prove that connection.  Go the easy route and document SC as a primary entitlement based on SMR.  You need an IMO/E.  Got a local PCP that can do that for you?

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broncovet    3,175

You have gotten good advice, and I agree with you that the VA has a duty to maximize benefit claims, that is, to consider secondary, and direct SC, and it looks like they only considered it secondary to bilateral flat foot. 

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USMC_VET    350

Roger, i appreciate it.  I think the plantar and pes planus are sewn up, what % i dont know.  I feel like its 0% right, 10% left for pes planus and 20% bilateral for plantar.  Its not horrible at the moment, i can go out an run anymore or stand for an hour or more, but its not debilitatating if i manage it right and dont do certain things.  Im grateful for that.

With the shin splints, if they deny it, does anyone know of any 38cfr, m21 references or CAVC

*Note* i did some digging and i believe under "inferred" claims in the M-21 this would be helpful

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Andyman73    874

I was recently awarded 30% for pes cavus bilateral w/plantar fasciitis.  This started showing up in late 1997.  I'm interested in how this play's out for you, since I do currently have 10% for L ankle, and 10% bilateral for knees.  I have a current claim in for secondary for R ankle, also hips as well.

Semper Fi.

Andyman

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