Need some guidance -scratching my head on a denial

[AF_Comm_Vet]

-  Filed a year ago for a lumbar spine condition caused by a severe auto accident in-service. After an initial denial, the claim was finally approved after doing a re-open and submitting an new IME.  The NEXUS was made between the Lumbar spine injury and accident based on civilian ER reports where I was transported.  Was scheduled for a C&P exam prior to decision, and the C&P physician actually rated higher than I expected (after doing X-rays) at 40%. 

-  Several years ago I started having headaches, neck stiffness, and occasional  Pins & needles in the arm, not severe or constant so blew it off.  Four months ago it became severe, started missing work left and right, and pain prevented even sleep without heavy meds. Was referred to an Orthopedic doc and later an Ortho Surgeon.  MRI's and X-rays were accomplished in Jan with bad news, severe degenerated discs and cervical bone structure.  The Surgeon said this was pretty severe for my age, and after describing the accident he agreed it was likely the cause of the damage which had been brewing for years. 

- Filed a FDC for Cervical  Spondylosis and degenerative cervical disease.  I referenced the earlier evidence of the accident in-service. I also had a thorough IMO done by one of the Physicians mentioned in the forums often (not including the name), the IMO was very thorough with a NEXUS statement and citing previous cases.  Submitted the FDC in Early Feb.

 

 Well, I after I saw the FDC move from Review to Decision process les than tend days after submitting I became concerned. Sure enough, it was returned denied as "Not Service Connected".    

 

OK, I get it....an IMO doesn't guarantee anything, but based on my evidence and previous related injury  I thought I would at least be granted a C&P before the case would be tossed back in my face.    Any thoughts?? 

 

Thanks

 

 

Edited March 13, 2016 by AF_Comm_Vet
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[broncovet]

Did you apply for this "secondary" to your lumbar spine condition? 

The VA has a duty to maximize the veterans benefits, considering all methods of Service connection, such as direct, presumptive, and secondary.    While I can not supply the reg or case law on this right now, you may be able to find it.  

If this condition was secondary to your sc lumbar spine condition (that sounds likely), you may be able to appeal on that basis.  

The rules for getting a secondary condition are a bit different than getting a primary condition SC.  

With a primary SC, you need to follow the big 3 of in service event or aggravation, current diagnosis, and nexus between the 2.  

For secondary condtions, you need only show that your diagnosis is secondary to an already service connected condition.  You need not "repeat" demonstrating an in service event or aggravation, as that was already accomplished with the primary service connection.  

In short, you need to appeal, or, you may be able to get VA to cue themselves as berta suggests.  In any event, dont let one year go by without filing a NOD, unless you are awarded the benefits you seek with the Cue request.  

If you go the route of asking VA to cue themselves, you should likely include something close to:

"Failure of VA to consider secondary service connection to lumbar spine condition."

A veteran, when he applies for benefits, should not be required to have a law and medical degree, to ensure strict compliance and the exact diagnosis applicable.  Instead, the Veteran need only point to the body part "that hurts" and the VA has a duty to assist the Veteran in getting the maximum benefits allowable by law, for the applicable body part.  For example, the Veteran may well not know if this body part pain is "nerve related", bone related, or soft tissue.  He knows only that it hurts and a doctor makes the diagnosis and origin as well as makes an opinion as to whether its at least as likely as not the pain is a result of a military injury.  

Veterans are often not familiar with presumptive conditions, secondary, primary, etc, and need not be.  

However, since you were denied, probably in error because secondary service connection was not considered, now you need to either avail your self of an astute representation, or learn the laws yourself.  

It wont cost you a cent to run this by an attorney, and, at a minumum, develop some ideas for you as to how to persue your appeals.  You can also learn this on hadit, but there is a learning curve.  I have been learning since my first denial in 2002, and still have a long ways to go after 14 years.  

Edited February 19, 2016 by broncovet

[broncovet]

Please allow an example of how a Vet may get hornswaggled by VA, by not knowing or understanding the differences between direct, presumptive, and secondary service connection.

 

In spite of the regulations requiring VA to consider you for all of these, they often do not do that.  Instead, they may deny direct SC, and never consider secondary or presumptive SC.  

 

If you dont appeal, your decision will become final in a year.  In the case of presumptive SC, you may, under some circumstances, be able to win benefits back to the date you applied, but not always so, if you were denied direct SC, when presumptive SC applies.  

Ditto for secondary SC.  

The end result is a delay and many year fight for benefits on your part.  If you give up, you lose.  

[Berta]

Can you scan and attach here their Reasons and Bases for denial ( and the Evidence List)?

Cover C file #,name, etc prior to scanning.

 

 

[AF_Comm_Vet]

8 hours ago, Berta said:

Can you scan and attach here their Reasons and Bases for denial ( and the Evidence List)?

Cover C file #,name, etc prior to scanning.

 

First - Thank You Broncovet for you input, noted and absorbed.

For Berta: I don't have the paperwork in-hand yet, I was able to determine status by poking around on ebenefits after seeing the status change, found the "not service connected" determination on the page listing historical and current disabilities. I did contact the physician who wrote the IMO, he verbally rolled his eyes and doubted the RO even read his report. 

Please note that I filed a FOIA for my complete C-File in July 2015; the delivery of the document is still pending.  I requested assistance from my Senatorial representative in late Jan, his FOAI request is also still pending.  Perhaps its better that the FOIA was delayed, when it is delivered it should include the information on this submission and the subsequent denial.  As soon as I have hard copy in-hand I will post for you

Thanks

 

 

 

8 hours ago, Berta said:

 

 

[Berta]

Was the "physician" willing to send you a copy of that report?

Was it done at a VAMC? Was this a VA doctor?

If so, their Records Access Officer could give you a copy of it.

I have never used FOIA for medical records. I have used the Privacy Act 5, USC 552, because (as I mentioned here Many times)...FOIAs take a different route than a simple Privacy Act request for medical records that are yours.

I contacted a VA C & P doctor in 1996, to learn that the VA had deliberately withheld from him, my most critical piece of evidence.

He pulled the actual C & P report he wrote out of his desk and read it to me by phone and then mailed it to me. It was far different from the manipulated statements in the SOC. The VA also withheld this evidence from the OGC who initially denied my FTCA case, until I found out what they didn't have, I sent it to them and they reversed and called me to talk about the settlement.

I gave written testimony to the House Vets Affairs Committee during Shreddergate, proving to them with 53 USPS tracking slips that the VA ignored this specific piece of critical evidence 12 times, and ignored other probative  evidence 41 times at least, so all I could  assume is that they shoved it into their shredder bin.They also ignored 2 IMOs ( costing $4,000) from Dr Bash in 2005, even with a double DRO review and also a few months ago they ignored the sole piece of evidence I needed for my 1151 CVA 100% P % T claim. A Mecical report from VA Central Strategic Health Team.

I CUED then by email and they reversed in mere weeks on that denial.

(I still think the 'medical' person who did the bogus C & P for that claim, was NOT a doctor,PA or nurse at all and probably is the guy who fills the paper cup dispenser for their RO water cooler.)

I know I have told this stuff here many many times but we have been getting more guest readers than usual and more new members too,.

My long point is this:

It is within VARO decisions that we find the keys to success as they state what is lacking in the claim,and the Evidence list has to be thoroughly gone over to see if they missed anything critical, as well as the SOC and findings of a C & P exam, that have to be compared to the actual exam itself.

It amazes me that somehow , as in my husband's case, his Med recs were voluminous and my C file grew after he died, but they managed (with others here as well) to find and remove and then ignore the best evidence the claimant has sent to them.

These are attempts by VA to deny improperly and either hope the veteran will not appeal, or if they do ,that claim will get onto the Hamster Wheel by deliberate VA's violation of 38 CFR 4.6....hoping we claimants don't raise hell about it.

The Hamster Wheel is not at the BVA.

If your claim gets to the BVA , then 'as likely as not' ,you are already on the Hamster Wheel.

 

 

 

 

[AF_Comm_Vet]

Berta:

Thanks for the comprehensive reply.  I am not quite sure I am following you on all your points.  Let me provide some more details to fill the holes -

-  The physician that provided the cervical IMO utilized my own copy of my SMR, my ER reports from my accident, my current medical records/diagnosis for my cervical condition, and the VA rating approval letter for my Lumbar condition.  He was unable to actually view the results of the previous lumbar C&P exam as we are still waiting on the C-File.    As previously noted he did provide a NEXUS for the cervical condition based on the accident that caused the lumbar injury, the lack of the previous lumbar C&P exam results had no bearing on his new diagnosis and nexus.

- Should I have filed the Cervical Injury as a 'secondary' condition to the lumbar injury?  I wish I had the answer to that one !   I decided to play it safe and file it as a "new' condition since as a layperson I didn't feel I had the knowledge to make that call, I'm starting to wonder if that was a mistake.

- Not sure what you mean by the hamster wheel.  I would extrapolate that it means to be caught in the VA house of mirrors where each apparent turn twists the veteran down another hallway with no exit.

LATE BREAKING NEWS -  My Senatorial Request to assist with my "lost" FOIA just hit the fan.  Just noticed on EBENEFITS that my "Congressional FOIA Request" has moved from "Under Review" to "Complete" .  Interestingly enough the date the FOIA was completed was the SAME day as my cervical claim denial !!!   Hmmmmmmm, perhaps the Cervical Claim "denial" was a "payback" for involving my Senator in the FOIA (or perhaps I am just imagining the black helicopters hovering above).

The good news is that I will soon have my C-File in hand and can take a hard look at the evidence considered and the RO's legal basis for the denial.  I'm just hoping that they copied the C-File AFTER the Cervical claim denial information was placed In the database. If not I will need to start another FOIA request

 

Edited February 20, 2016 by AF_Comm_Vet