2nd Rejection - How to proceed?

[USAF-Vet]

Historical context: Filed with AMVETS Oct. 2014. File received by Oakland VARO Nov. 2014. Claim closed due to "no evidence of service connection" March 2015.

Filed NOD with DAV June 2015 - VARO VSR called me and suggested I submit Reconsideration. Withdrew NOD end June 2015 for Reconsideration.

Filed Congressional complaint July 2015 to help obtain Service and Dependent medical records from VA Archives. Service records scanned/uploaded to VBMS July 30, 2015. Rest of Dependent medical records and additional Service medical records received Oct. 2015 from VA Archives. Everything scanned into VBMS.

Dec. 8, 2015 - received 2nd rejection for service connection from Reconsideration. Still claiming "No evidence that the disabilities occurred while you were on active duty" even though they have nearly 1,000 pages of medical documentation and I also uploaded specific copies to EBenefits for each claimed condition so they didn't have to go looking for it.

Letter states I have 3 options:

1) submit new evidence (which I already did).

2) File an appeal (NOD) which I did in June but was advised by VARO not to do it.

3) Identify a clear and unmistakable error in prior decision.

The initial Processor NEVER REQUESTED my medical records from the VA Archive...that is why I had to do a Congressional. Because the VARO never requested the records, they closed my claim without allowing me to have a C&P exam.

Personally, I feel as if I am being discriminated against because I am a FEMALE who was on Active duty and then became a dependent. My DAV Rep. said he has had communication with the VARO questioning why it took me all these years to file a VA Claim, why did I wait until after my husband filed his in 2010 when he retired....because I wasn't even aware I was eligible until 2 years ago when I became employed by VHA and the Veteran's I worked with encouraged me to file. I wasn't even willing to acknowledge I was a Veteran until 2 years ago because of the hostile work environment I dealt with when I was on active duty. When our base closed in 1992, my husband wanted to drive down the road to the Engine shop where I worked and I had a panic attack, told him to turn around. I have physical and emotional scars from my Active duty service which I have been dealing with on my own suffering in silence. Now I'm being beat up again by the VBA over my service. What is the problem? Do people not realize there are Women Veteran's and many of them such as myself were completely unaware we were eligible all this time because we never received any exit briefings regarding VA benefits? I believed all these years that benefits were only for Retired Veteran's such as my husband until 2 years ago when I learned otherwise.

Please advise. I will be calling my congressional staffer and DAV rep. today. I am so upset I'm considering contacting a couple of Senators. I might contact BOB as well.

[USAF-Vet]

I am also pushing to get my herniated C5/6 included as well since I have nerve issues due to bone spur. I reached out to my chiropractor who is a USAF Veteran for a supporting document. My PCM referred me back to ENT for the supporting statement regarding my daily migraines since the doctor who did my surgery in Feb. is currently serving in Afganistan. I spoke with the clerks on Friday so they know what I need.

My PCM flipped out when I told her what happens with my daily migraines and I think she referred me back to Neurology since when I take my meds I can't put together a coherent sentence for about an hour. She started wigging saying "you can't drive" and such. She prescribed a stronger medication to level out the peaks I get and another med to drop me back down if I'm having a peak. Who knows, sick of all these meds.

[pwrslm]

I am assuming that you have a copy of the SMR's and current treatment records.

 

Start by noting every date, time and provider in the SMR's that treated you for claimed conditions.  Separate them, by condition and date.  Go to http://www.merckmanuals.com/professional and study up on the phrases and types of your conditions so you have a solid understanding of what is up with your medical history, then  you are much better prepared to speak to a pro about these issues.  You don't want to come off as a knowitall but you don't want to be flat footed at the same time.

Your best bet is to take this information, with copies of your SMR's, and your current treatment records, to your PCP, or a NON VA provider willing to provide an IMO/IME for the VA Claims.  If you have to chase down a new provider, the first question out of your mouth is to ask if they will provide an IMO for your VA Claims for disability.   I got one from my spine surgeon here in Florida for $250.  With multiple conditions, it might be wise to use a general practitioner who can provide a nexus with multiple conditions in the same IMO/E if they are willing to do so.  Be sure that you are familiar with terminology needed by the VA to have a proper nexus letter so that they accept it as such, and not disreguard it due to the failure of specific terminology (ie...more likely than not..or ..as likely as not...).

The IMO/E should provide that the MD reviews your records, specific maladays, dates of exam's located in your SMR's and current treatment records, as well as the condition (s) that was noted.  Then, one paragraph per condition should provide how the condition in the SMR's are related to the current treatment of whatever condition you need the nexus for. Finally, the opinion as to service connection of the two, as likely or more like than not, that they are one and the same, or related by etiology as secondary to the original condition in the SMR's.

Once you have this, this information should provide you with what you need to get your EED back to 2011 from your earlier claim.  If this information is linked to your SMR's, and the VA has an obligation to retrieve this information, then they cannot claim that the info was not or should not have been avail to them during the 2011 claim decision that they said they made (the first denial).  Any and all information in your medical history and personnel records should have been retrieved by the RO when your first claim was made.  If they didn't, and info in the SMR's provide for the nexus, then you have a CUE, in their failure to assist you in gathering evidence from government entities.

 

The key for the rest of the conditions are the nexus.  If the provider that gave you an IMO/E did what you asked, the VA should fulfill their duty and grant your conditions, the effective date might  vary between 2011 and 2015, but with a medical professional opining on the efficacy of the nexus/connection, they shouldn't push too hard to fight you.  Either way, you will have a very strong case for them to rebut, which is where they tend to back down and give the benefit of doubt to claimants.  Reserve the use of the term CUE for later, down the road, but document the facts that exist, so that its clearly evident from your statement, that they violated the CFR or USC when they originally denied your claim.  The CUE statement should wait until every avenue is exhausted before you play that card.

 

The use of a conclusive IMO/E to reopen the claim should be sufficient.  It is new evidence.  I didn't see anything in your previous statements that you provided any IMO for the conditions you spoke about.

Edited December 22, 2015 by pwrslm

[USAF-Vet]

Thank you for the tips. Will review in more detail when I get home.

My horse racing partner is a disabled marine and he is going to fax me his migraine report so I can make sure to include various terms etc. when I do my C&P. He has another marine buddy that is well versed who can help me once this portion is completed. The Comp. and Pen office called me last Thursday and she stated I haven't been denied anything I claimed for yet which is good. I was prompted to enter my bank account information into Ebenefits as well which is positive.

I have packets set up for each of my C&P conditions already.

My PCM suggested placing them into page protectors and putting them into a folder for easy review.

I have read on this site about making notes for each condition (talking points) which I intend to do since I have memory lapses and struggle at times to complete a sentence depending on the severity of my migraines and/or anxiety. I suspect most of my issues are interrelated but have been treated as individual events all these years.

[USAF-Vet]

 

This is what my Ebenefits looks like today:

 

pending_disabilities-12-15.docx

Edited December 22, 2015 by USAF-Vet
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[auenone]

My strategy seems to be working. The reconsideration was reviewed by the DRO and she said besides getting my 20% for the knee from the instability that was an appeal from 2012, she will have the reconsideration looked at by another doctor with the BS w/V and PH included and other evidence with the medical. 

I said in the reconsideration if it wasn't approved for my cervical spine and still considered age-related as they wanted to say, I would get a DBQ done on my thoracic and lumbar spine and other joints and prove that my neck is far worse than anything else. I also submitted some BVA citations that showed the same contention without a shitload of SMR's on mine and their records, as it was during the Vietnam era and everyone that was involved in an explosion wasn't given an MRI (they didn't exist then) and a light waved in front of their eyes looking for concussions.

I tried to find my medical records from Vietnam and the NPRC said they don't have anything from my 12 days in the hospital. I submitted the NPRC's response to that inquiry in my reconsideration and mentioned it to the DRO during the phone call and she said they have had those hospital records since 1970 and evidently got them from the Army. So if you have trouble finding your records, don't give up and search everywhere. I will do a FOIA request when this is over from the VARO and get those in my possession just in case.

Hope this helps someone.

[USAF-Vet]

Update: Completed 1st C&P Exam on Jan. 11. Going in for 2nd C&P this afternoon and last one is scheduled for Jan. 20.

I do not see any results for the exams on my Ebenefits account. Will ask the contractor if my results were transmitted yet for Mondays exam when I go this afternoon.