TKR; Arthritis and in service fracture

[broncovet]

As you know I have answered a lot of hadit questions.  Now, its different when its on me, so Im the one asking.  

Background:  I had an in service leg fracture.  I applied for "Arthritis" which was never adjuticated.  Instead, a 2005 RO decision "rate sheet" listed arthritis as NSC, 10%.

Since VA never worked the claim, there was no C and P exam, and probably no nexus statement, but its possible or likely that I could get one.   

This means it was apparently denied and I was never given a RO decision.  

My Arthritis of the knee is worse and will require both Knees replaced, according to my VA ortho doc.  As you may know, Im at 100%, but an additional 100% convalscent would yield SMC S, for a year, or maybe 2 years, as both knees need replaced.  The extra 8000 or so for SMC S would come in handy right now.   A VA employee recommended "reapplying" for arthritis.  

Question:  Considering that I have hired an attorney to appeal to the CAVC, should I go ahead and reapply for arthritis, or should I wait for the outcome at CAVC?  

Im not sure if it would tick off my attorney by applying for a new issue or not.  

[broncovet]

Buck

    I looked in MY SMR's, and, there is evidence of the fracture in my SMR's.  As Berta pointed out, of course I need a nexus statement, but then isnt that what a C and P exam is for?   Isnt it true that if there is evidence of a in service event, but no nexus, isnt that mean that a  C and P exam is requested to determine a nexus?  

[broncovet]

Back to Berta...

   The 2005 decision which "pre supposed" NSC (and did not order a C and P exam), seems to be a legal violation.  In other words, its equally plausable that the in service fracture caused the arthritis, then the VA needs to order a C and P exam, and not just simply deny the claim and assume there is no nexus.  

[Berta]

Was the arthritis formally claimed ,Broncovet?  And claimed as secondary to the fracture?

The 2005 decision fell under the VCAA.

VA ,after the VCAA was enacted, buggered up the VCAA letters they were supposed to send to vets ,so bad ,that this was the beginning of the backlog in my opinion, because it caused the BVA to have to remand many many claims, as their rights under VCAA were violated.

" its equally plausable that the in service fracture caused the arthritis, then the VA needs to order a C and P exam"

That might be plausible to you and to me, but we are not dealing with people who can assume anything is plausible.

If you still have your VCAA letter, there is plenty of info here circa 2000-2001 but maybe on the older hadit board as to proper VCAA letters.

My VCAA rights were violated and it was the first thing I stated in my appeal. But BVA  remanded instead for an additional IMO.

When they got the additional IMO and weighed that against my rebuttal to it and to my 3 IMOs against their 3 C & Ps, the BVA agreed the VCAA letter I got was 'crap'   I forget how they put it, but said that the VCAA violation was moot anyhow because I overcame it with evidence.

The VBM ,any edition after 2000, should have info in it as to how these VCAA letters were supposed to be prepared.

The problem is VCAA is a DTA right and not cueable ,In my opinion, because I didn't CUE that in the past case I had....

But then again since  VCAA violations have  caused so many remands from the BVA, there must be someway to get a re-do,with a proper VCAA letter....even years after the fact....

 

 

 

[broncovet]

Yes, Berta, the arthritis was formally claimed.  However, due to shredded evidence, its not in the RBA.  But, included in the RBA,  is an (RO acknowledgement) that the arthritis claim was "withdrawn in 2007, and reinstated in 2008" (this was in RO's own words).   HOw can the RO say they never received a claim, when they said that I withdrew it and reinstated it?  

There is no VCAA letter on the arthritis in the RBA.  

My loophole (for an earlier effective date) may well be because of notice violations.  The NVLSP has won cases where the VA did not send proper notice of the Vets right to appeal.  Absent this  notice, apparently, the one year appeal period was tolled.    

 

[waccamawwild]

 It seems that the VA is trying to tie your hands up on this one. I applied for arthritis as well. They rated as part of the injury but no increase.