NOD, New C&P Exams, I'm Confused--Please help!!

[bcnandprn]

I'm super confused about where I am in the appeal process and what I need to do at this point.  Unfortunately, the DAV hasn't been very helpful with explaining things to me either, so I really feel lost in the mud right now.  I'm hoping some of you can help me or at least tell me who I should be contacting and/or what questions I need to be asking.

I filed a NOD that was received on 11/27/2013 and then the VA went MIA for two years.  Last month (November 2015), I received a call from the C&P department at the Kansas City VA Hospital to schedule new C&P exams and have now completed all of the new exams.  The exam notes have been completed in eBenefits and eBenefits still shows 11/27/2013--Appeal Pending-Notice of Disagreement--The VA will notify you of the next steps.  I'm guessing that the "next steps" were attending the new C&P exams and that there hasn't been enough time to update eBenefits yet.  I also realize that I probably won't get a decision any time soon, but what are the next steps after the C&P exams are complete?

In both exams, the examiner notes state that the conditions were just as likely as not service connected with further annotation of civilian doctor visits, frequency of flare-ups, severity, etc.  While I would love to know what level, if any, that each condition will ultimately rate out at, I know there is a lot of room for interpretation, so I'm not even going to ask for guesses on that.  I just want to know what the next steps are to try and understand where I'm at in line for a decision and what type of questions I should be asking when I call the 800-827-1000 number.

I've also moved since filing my original claim and eBenefits will not let me update my address online, so I've tried calling the 800 number but the system hung up on me after telling me that they had high call volumes right now.  While I do not receive compensation right now, eBenefits also shows an old bank account that I no longer use and I honestly do not remember the account numbers for it either, so I'm not sure how to get anything fixed.

I am feeling extremely overwhelmed and exhausted by all of this because I had no idea what to even begin to ask.  Thank you in advance for any suggestions you have.

[Vync]

So, an SOC may grant some claims while denying others and it isn't necessarily only used for a denial on all claims that were listed?  The VA originally denied all of my claims and I filed the NOD, so they did new C&P exams for the four claims that I appealed (I inadvertently left the fifth one off of the NOD) and all four of them state in the notes, "just as likely as not" by the examiners.  With that being said, while I claimed my knees and have evidence that knee related injuries occurred during my military training, I still have pretty good ROM (120 flexion/extension), the examiner did annotate pain with the ROM, but overall, I'm blessed that as of right now, my biggest issues are fairly constant achiness and real pain with increased exercise.  They are achy and uncomfortable all of the time and that makes me grumpy, but I say I'm blessed right now in the fact that it could be much worse (which I'm guessing as I get older, it will get worse).  Anyway to make a long story short, I suspect that the VA may SC for my knees, but rate them out at a 0%.  The other issues I struggle with that the new C&P's covered are PTSD, IBS, and migraines, all of which were annotated with prior service records, civilian doctor visits, and/or my personal civilian counselor.

 

An SOC may grant, deny, but it can also defer some claims. I had a couple of claims where they rated a few things (grant/deny), but deferred others because they needed additional development. You'll receive a cover letter that gives a very brief overview of the decision and then the actual decision details will follow that. Even if they approve all your claims, they will still include a form you can use to file an NOD, like for example if they screwed up and didn't rate you high enough per the rating criteria and the facts.

Pain is a factor. A court ruling from a long time ago nicknamed "Delucca" states that painful motion should be considered limited motion. It is also referred to as "functional use", I guess because people who have pain usually limit movement based on the pain and don't always go out to max ROM because of it. Basically, there should be two sets of numbers. One number would be the max ROM you were able to get to and the other should indicate when pain began. They are supposed to rate based on where pain begins. This is supposed to be evaluated based on repeating the ROM test several times. Check your C&P exam to see if this was factored in. Better docs will include it. Some docs are lazy and just say something like "pain on movement" or only just check it once.

Let's take a look at the rating criteria for the musculoskeletal system (http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=38:1.0.1.1.5#se38.1.4_171a), but more particularly the knees. Compare your ROM (or limitation thereof) to this chart. I'm not overly familiar with the knees, so I don't know what normal ROM would be for flex/ext of them, but this should give you an idea. The #'s to the left are the diagnostic code (DC) they use for each type of condition. The rating documents should explain how they rated, and if they did not give you the maximum rating, it should include details similar to what is shown below, to explain what the qualifications are to get a higher rating.

The Knee and Leg

	Rating
5256   Knee, ankylosis of:
Extremely unfavorable, in flexion at an angle of 45° or more	60
In flexion between 20° and 45°	50
In flexion between 10° and 20°	40
Favorable angle in full extension, or in slight flexion between 0° and 10°	30
5257   Knee, other impairment of:
Recurrent subluxation or lateral instability:
Severe	30
Moderate	20
Slight	10
5258   Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint	20
5259   Cartilage, semilunar, removal of, symptomatic	10
5260   Leg, limitation of flexion of:
Flexion limited to 15°	30
Flexion limited to 30°	20
Flexion limited to 45°	10
Flexion limited to 60°	0
5261   Leg, limitation of extension of:
Extension limited to 45°	50
Extension limited to 30°	40
Extension limited to 20°	30
Extension limited to 15°	20
Extension limited to 10°	10
Extension limited to 5°	0
5262   Tibia and fibula, impairment of:
Nonunion of, with loose motion, requiring brace	40
Malunion of:
With marked knee or ankle disability	30
With moderate knee or ankle disability	20
With slight knee or ankle disability	10
5263   Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated)	10

 

 

 

[bcnandprn]

Thank you for all of your explanations.  I was a little stressed when the lady I spoke with said that they sent an SOC with the V-9 form to appeal.  I thought it meant everything was denied again (which hopefully it doesn't mean that).  I was looking on ebenefits and noticed that it now shows this message in one area, so hopefully, this battle is almost over and in my favor because I am so exhausted at this point.  I am so thankful that all of you are patient with me as I try to understand this process.  Maybe one day I'll be able to help a newbie.  ?

[Andyman73]

So, an SOC may grant some claims while denying others and it isn't necessarily only used for a denial on all claims that were listed?  The VA originally denied all of my claims and I filed the NOD, so they did new C&P exams for the four claims that I appealed (I inadvertently left the fifth one off of the NOD) and all four of them state in the notes, "just as likely as not" by the examiners.  With that being said, while I claimed my knees and have evidence that knee related injuries occurred during my military training, I still have pretty good ROM (120 flexion/extension), the examiner did annotate pain with the ROM, but overall, I'm blessed that as of right now, my biggest issues are fairly constant achiness and real pain with increased exercise.  They are achy and uncomfortable all of the time and that makes me grumpy, but I say I'm blessed right now in the fact that it could be much worse (which I'm guessing as I get older, it will get worse).  Anyway to make a long story short, I suspect that the VA may SC for my knees, but rate them out at a 0%.  The other issues I struggle with that the new C&P's covered are PTSD, IBS, and migraines, all of which were annotated with prior service records, civilian doctor visits, and/or my personal civilian counselor.

 

bc,

Since no one has said much about your knees yet, let me be the first to spout off....right, wrong, or otherwise, I was granted 10% for bilateral patella femoral knee pain syndrome.  It took over 2 years, and it's one of the most repeated physical ailment in my STR.  I fell down a flight of stairs on day 5 of Boot Camp, and landed knees first.

I don't recall if they had any limited ROM tied in to it, but they granted the 10% for painful motion.  I know I was lowballed since they never considered stiffness, with occaisional locking and swelling, nor did they consider the frequent giving out of my knees, either. 

At that time I was young and dumb and had no one to guide or advise me in the ways of the VA.  I recently filed for increase, 15 years after my original award date at was granted additional 10% for each knee.  They kept the 10% pain award and separated each knee for their own 10% rating based on ROM.  It did help that x-rays from 10 years ago and this year showed significant wear and tear on my knees.  BUT.....they still ignored the popping/locking/giving out...which I am going to have to call them on.

So....you may well end up with a 10% award for the pain...hopefully you do, since it would give you some victory to start with.

Semper Fi.

Andyman

[Vync]

bc,

Since no one has said much about your knees yet, let me be the first to spout off....right, wrong, or otherwise, I was granted 10% for bilateral patella femoral knee pain syndrome.  It took over 2 years, and it's one of the most repeated physical ailment in my STR.  I fell down a flight of stairs on day 5 of Boot Camp, and landed knees first.

I don't recall if they had any limited ROM tied in to it, but they granted the 10% for painful motion.  I know I was lowballed since they never considered stiffness, with occaisional locking and swelling, nor did they consider the frequent giving out of my knees, either. 

At that time I was young and dumb and had no one to guide or advise me in the ways of the VA.  I recently filed for increase, 15 years after my original award date at was granted additional 10% for each knee.  They kept the 10% pain award and separated each knee for their own 10% rating based on ROM.  It did help that x-rays from 10 years ago and this year showed significant wear and tear on my knees.  BUT.....they still ignored the popping/locking/giving out...which I am going to have to call them on.

So....you may well end up with a 10% award for the pain...hopefully you do, since it would give you some victory to start with.

Semper Fi.

Andyman

On top of what Andy said, the mere nature of being in the military is to be tough and try to avoid going for medical care. Many veterans had problems that were not treated in service because it could impact their reliability or deployability ratings. When they get out, they are told to file with the VA, but later they learn that the constant urge to look tough and be tough resulted in an absence of records to help with their claims.

Like Andy, I filed when I got out and it took years to get SC. I filed about 13 years after I got out for increases and secondary conditions. It took several years to get everything finished. It was a tough fight, but you have to learn somewhere. You're taking the first steps to better understand the system. It's not like any of our disabilities will magically go away either. Learning about the system is important because you are likely going to need to continue using it at some point in the future when things progressively get worse.

[FormerMember]

A Statement of the Case (SOC) can only be used to inform a Veteran of a denial or denials. Under no circumstances is a SOC used to announce a decision or to grant a claim. That will always occur under separate cover. On occasion, VA has been known to cheap out on postage and mail them both in the same Big Brown Envelope but they will always be two separate documents. A grant will always bear the Seal of the VA and a declaration of what you won, what percentage and the rate you will be paid. A SOC will cite to every pertinent regulation pertaining to your claim and end with a decision statement informing you of the reason(s) why your claim failed and include a VA Form 4107 with instructions on how to file your VA Form 9 with which to perfect your appeal.

I don't mean to poke a hole in the happy party but it is essential to know that the imminent reception of a SOC is never reason to celebrate. The VA "technician" at the 800 Prize Redemption Center is allowed to announce a grant but not the particulars. Absent any discussion, I think it's safe to say they denied you. Time to consider getting a real leagle beagle now.

Here's 38 CFR § 19.31. While it discusses Supplemental Statements of the Case, it simply reiterates what a SOC or SSOC can and cannot contain:

§ 19.31 Supplemental statement of the case.

(a) Purpose and limitations. A “Supplemental Statement of the Case,” so identified, is a document prepared by the agency of original jurisdiction to inform the appellant of any material changes in, or additions to, the information included in the Statement of the Case or any prior Supplemental Statement of the Case. In no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case. The agency of original jurisdiction will respond to notices of disagreement on newly appealed issues not addressed in the Statement of the Case using the procedures in §§ 19.29 and 19.30 of this part (relating to statements of the case).

 

[Vync]

A Statement of the Case (SOC) can only be used to inform a Veteran of a denial or denials. 

Thanks Alex,
I learned something new!