Should I file NOD or submit new claim?

[ArmyMP17]

Hello,

My back story: resigned my active duty commission in 1999 and submitted disability packet for bi-lateral shoulder condition (separated left shoulder, bursitis right shoulder), left knee (x2 surgeries), right ankle blow out, anemia, sinusitis, tinnitus, hearing loss, vertigo, right wrist tenosynovitis, Bell's Palsey, headaches, viral syndrome, low back pain, hemorrhoids, and bilateral hand and finger numbness due to mild ulnar entrapment. In late 2000, they came back with a20% rating- 10%  for left knee, 10% for right ankle. I was also awarded 0% for sinusitis, right wrist, Bell's Palsey, hemorrhoids, and right shoulder. I was full on into my new civilian job and didn't know much about the appeal process so filed the paperwork away and didn't do anything.

Fast forward to 2013 and 2014:  experienced issues with my left shoulder (non-rated) and left knee, started with civilian doctor and also went to VA in Palo Alto, CA. Submitted a claim for increase on my left knee in Apr 2014, went through C&P process and received a 10% increase for left knee - for a total rating of 30%. In parallel, In May of 2014 started seeing the Ortho doctor in Palo Alto VA for left knee and left shoulder, and regular VA PCP for right wrist and other issues. The Ortho doc noted another meniscus tear in left knee and put me on crutches for 6 weeks (I had a 3rd left knee surgery by civilian doctor in Oct 2007). A year later, after physical therapy, VA Ortho conceded a 4th surgery was needed and I had it done in July 2015. In December of 2015, I submitted a new claim for: inc left knee, right knee strain secondary to left knee, low back pain secondary to left knee, increase to right wrist, increase to right ankle, reopen left shoulder with buddy statements corroborating shoulder separation, increase to right shoulder, headaches secondary to sinusitis,and tinnitus secondary to Bell's Palsey. Assisted by a VSO recommended from a good friend, I mailed my packet in with all the documentation in Dec 2015.

I had my C&P exam in Feb 2016 in Palo Alto. Like many other postings, I had a bit of an issue with my C&P examiner. I was very nice and answered all of her questions to include the impact of all of my various aches and pains on my daily life. She did not properly measure my ROM for knees and shoulders with the goniometer and eye-balled it instead. My left knee hasn't straightened out since BEFORE the 4th knee surgery, yet she put down a 5% measurement. She also stated she, "question about veracity of her complains. Exam is significant for somatic amplification, lack of effort. Pain is out of proportion to findings on diagnostic test" and quoted an exam I had in Dec 2015 from a DIFFERENT Ortho doctor who completely wrote what he felt like in my record, "According to CPRS ORTHOPEDIC CLINIC note dated on  DEC 10, 2015:-  She is able to fully extend her knee and flex up to about 115 degrees. On PHYSICAL EXAMINATION of L knee she had Full extension and to 150 degrees of flexion in the left knee." So she thought I was exaggerating because a doctor pushed down on my leg and deemed it "fully extendable". 

Her review ultimately ended in an increased rating to 70%: 0% for left knee extension, 10% for right knee strain, 10% for right wrist increase, 20% for left shoulder, and 20% for right shoulder for a total rating of 70% (including previous year 10% increase for left knee). She completely blew off my low back pain secondary to my left knee because it's a "normal progression of getting older" and I am overweight. Duh. Difficult to lose weight when one has difficulties walking. She determined no increase for sinusitis, hemorrhoids, right ankle, and I am guessing since no increase on sinusitis, that means no secondary connection for headaches. Tinnitus was deferred, and after a few examinations in Texas (I relocated in Feb 2016 right after the C&P exam in Palo Alto), I recently received a 10% rating for tinnitus. Total rating is still 70% because tinnitus didn't move the needle at all.

So here are my questions:

1. Should I submit a NOD or new claim for increase for left and right knees? After 4 left knee surgeries, an obvious altered gait that causes me to lean on my right leg, leading to right leg strain and low back pain, and the fact I STILL can't straighten my left leg completely, I went to my civilian doctor and physical therapist, who both stated my low back pain and increasing right leg problems are related to my left knee issues. I recently went to Ortho in Temple, Texas with regard to my right knee locking, knee cap popping, and constant pain in right knee, and they basically said here's a knee brace - go lose some weight. They offered injections too, but I'm a bit leery about doing those as I don't hear much good comes from them.  I should also note, my physical therapist and the VA doctor in Temple both measured my left knee at 10% extension which should equal a 10% rating. 

2. I have more documentation on my low back pain related to left knee - should I submit a NOD or new claim? I should note the surgeon who did my 3rd knee surgery in 2007 indicated I was headed toward knee replacement and should quit all sports and activities that would stress/strain my knee. It was discussed again last week at the VA Temple, but the PA said I need to lose weight before they can do a knee replacement (they really recommend against it at this time as I'm not even 50 yet). Talk about your Catch-22s. 

3. I enlisted in the Army in Feb 1985 with a known hearing loss in my left ear and diagnosed BPPV (Benign Proximal Positional Vertigo). My medical records clearly show a hearing loss, yet my initial claim in 1999 was denied service connected for not enough documentation. There are also numerous mentions of vertigo in my records during active duty, reserves, and VA visits. In late 2002, the VA in Palo Alto was going to send me for evaluation with regard to Meniere's Disease, but in Feb 2003, my Reserve unit was called up to support the war (I did not go overseas, we were sent to Fort Leonard Wood for stateside support) and that eval got put on hold. When I returned back to Cali at the end of the one year tour, my job relocated me to Texas. While I had recurring vertigo episodes I did not pursue the eval for Meniere's because they didn't happen all that frequently. Fast forward to 2014 and my hearing problems, tinnitus, and vertigo frequency increased dramatically. Tinnitus 24/7, hearing loss in the upper Hz levels worsened, and vertigo episodes of short duration is a weekly occurrence. I started going to the VA for those issues, and have an appointment in Austin next week for Meniere's evaluation. My question is: should they say yes, I have it, how do I get it service connected when hearing loss is not-service connected? Note: my hearing loss is in the 3000-8000 range whereas the VA only counts it a rate able loss in the 1000-4000 range. I've had life long issues with my left ear, hearing, vertigo that I can document with family statements, a few medical records from childhood, and I went through my medical records page by page and highlighted every mention of hearing, vertigo, dizziness, anemia, viral, etc. If I am reading the requirements correctly, I could qualify for a 60% rating for Meniere's if it can be service-connected. I just don't know how I do that?

Thank you for your help. 

 

Jen
            

Edited July 13, 2016 by ArmyMP17

[Gastone]

Your 5 mos into your 1 yr NOD Filing period, NOD Clock started running the Date at the top of your Award/Denial Letter. If you think all the Medical Evidence supporting Higher % is already in your VMC Medical Records, have your VSO file for an Official Request for Review. Make copies and attach all the pertinent records from your VMC File. Probably won't work but you never know.

Just have your NOD locked and cocked, ready to file. DRO Hearing Request or for that matter Reviews mandate that N & M Evidence is furnished prior to the Review or Hearing. With a DRO Review, you could be waiting over 2 yrs for a Decision, a DRO Hearing could be in excess of 3 - 4 Years before a Hearing date.

You can't file for an increase of a specific SC issue, until the Decision becomes Final, say 02/2017, right.

Semper Fi

[ArmyMP17]

Thanks, Chief. The decision on my claim submitted in Dec 2015 is final, which is why I am asking NOD vs new claim. While this whole process has been going on, I have continued to see the doctor and physical therapist for my knees and lower back so I have new and material evidence to present for a new claim. In fact, my right leg has gotten even worse. I believe the C&P doctor did not measure ROM on my left knee  correctly - she eyeballed it. She did not address my low back pain as connected to my already SCd left knee - she just said lose weight. While I agree that could lessen the stress on my knees, it doesn't address the fact my back pain has increased since the 4th knee surgery was performed last July, mainly due to altered gait. 

The evaluation for Meniere's Disease will be a separate submission and I am trying to figure out how to SC it given I have plenty of history for hearing loss, vertigo, ear fullness, and tinnitus - all symptoms of Meniere's without the formal diagnosis.

I may need to make a drive to Waco to meet with my VSO as he hasn't been the most helpful over the phone. Thanks for the feedback. By the way, I am not an E-2, but don't know how to change on my profile.

Jen

[broncovet]

Maybe I can help.  I will try.  First, dont worry about your ranking on hadit, everyone starts as an E1 there, even if you are an O7 in the military.  

Since you indicated you have passed the one year appeal period, then dont try to appeal those issues.  The VA gathers up all appeals longer than one year and has a monkey stamp, "Appeal denied:  untimely" on them.  So, your options are to apply again, reopen due to new and material evidence, (read 38 CFR 3.156 to see if it applies), or to file a CUE.  

1.  Re apply.  This would be if you dont qualify for either of these, below:

2.  Reopen.  If you have new evidence that is relevant, this is probably best.  The VA may have denied you, or rated you too low if they did not have all your evidence.  

3.  CUE.  Filing a CUE takes much research.  There not only has to be "errors", but these errors have to meet the CUE (Clear Unmistakable Error) standard of review.  There is much on CUE here, but remember CUE is about the effective date.  The VA does not care if they make errors or not.  MOSTLY, we have to fix VA's errors at our expense.  

Edited July 14, 2016 by broncovet

[ArmyMP17]

Thanks, Chief. Haven't passed one year mark yet. Submitted claim on 14Dec15, C&P exam on 11Feb16, and decision came quick two weeks later around 23Feb16. Tinnitus was deferred and just finished up last week with a rating of 10% so I was waiting on that to decide which route to go. I am still in the window to appeal.

 

I will look into the reopen option after I gather a bit more documentation. As I am sure it is with most vets, my aches and pains don't stop while the VA is making their decision. I've had several doctor visits since the original submission back in December, and my right leg has gotten significantly worse in the last few months, which has actually surprised me at how bad it's gotten.

Regarding CUE, I need to look through my records as I thought I remember seeing a 10% extension measurement on my left knee, whereas the C&P examiner eyeballed it 5% extension instead of using the tool. I doubt examiner bias or omission of facts qualify as CUE so it's probably better if I just gather more documentation and open a new claim in a few months for my knees.

Appreciate your response.

Jen

 

 

[MarkInTexas]

Wish my rank on here was 007.

Thanks for your service, Jen!

 

[ArmyMP17]

Lol, thanks, MarkinTexas.