NOD denied and errors to boot! Need opinions

[Navy4life]

I posted this in my other ongoing thread but I want this brought to the forefront.  I was recently denied by WACO DRO Steve Wilbur and I believe I was retaliated because I simply asked Robert McDonald in an email to step in after 6 months of waiting for a decision when the DRO told me in the informal hearing to give him 60 days.  My hearing was 45 minutes long and I was well prepared.  The DRO Steve Wilbur has a very bad reputation at WACO for denials.  I received a call from DRO Wilbur on August 18th, 2016 stating he received my request for a decision.  He told me he would be deciding it within the week but in fact he had already decided it that day!  Now I have yet to received the SOC but I have a Women's Outreach Coordinator in St. Petersburg VBA who is a very close friend of mine and happened to see the denial in my records.  This idiot DRO failed to put a cover letter with my SOC and no date on my SOC.  He simply submitted it to Evidence Intake and never mailed it to me!  If it wasn't for my connection I would still not know and would not be within the 60 days to file the Form 9.  I emailed Robert McDonald earlier this week, firing off my distaste for this DRO and my local congressman.  I plan to further put him on front street when I do file the Form 9.

As for my NOD, I filed it back in 2014 for right foot (5th metatarsal fracture), right ankle condition, and left toe condition.  I am attaching a lot of documents and I know we all have busy lives and I have helped a lot on here and now I need help please!  I need your opinions on this situation.

Original denial for toe condition was on decision letter in June 2014.  They put the denial of the toe condition on the wrong foot!  It was noted on the right foot when it should have been the left foot.  I pointed this out since my right ankle and right fracture had yet to be decided on.  November 2014 received denial for right foot/right ankle and toe condition noted on left toe continued to be denied.  This was after I had a C&P exam July 2013 where I provided TWO DBQ's from my current outside podiatrist stating my injuries to my feet/ankles/toe was all in-service injuries and I was still affected by them to this day.  That was 2013.  I was s/c in June 2014 and was able to start getting treatment by the VA.  My primary had X-rays completed and in 2014 it showed an old fracture to my right foot, the 5th metatarsal.  The C&P examiner made a rationale that stated he noted diagnoses in the C&P exam.  He felt comfortable with the DBQ's from what I gathered.  November 2014, a medical opinion by some doctor I never saw but supposedly reviewed my records determined either I was healed and no further treatment or that I had in-service injuries but no loner had issues.  So I filed NOD November 2014 citing the errors and why I felt the denial was incorrect.  Fast forward to February 2016, I had my informal hearing with DRO Wilbur.  I had submitted a Nexus letter dated February 12th, 2016 from my podiatrist indicating he reviewed all my SMR's and my current conditions were all related to in-service injuries.  During the hearing, DRO Wilbur even stated that a fracture in s/c with no further residuals is at least 0%.  He further went on to review the Nexus letter noting that my Podiatrist stated all three contentions were in fact in-service, continuity continued.  DRO Wilbur told me 60 days to decided.  DAV rep was present.  I felt good......WELL, then I was denied last week.

Here is the evidence I submitted to the DRO for review.  I am just lost for words on this!

 

DBQ ankle conditions_Redacted.pdf

DBQ foot conditions_Redacted.pdf

medical opinion w-o exam_Redacted.pdf

Timeline for NOD hearing.pdf

Nexus letter-redacted .pdf

NOD - Denial Letter .pdf

NOD evidence notes.pdf

[Navy4life]

Hi everyone!  

I received my SOC and just as I thought all the DRO did was "cut/paste" my denial from November 2014 to this SOC with a few minor add in's for wording.  He screwed me as I suspected.  

I have been talking to John Dorle as most know him from this forum.  I sent him all my documents for review and we had an hour long call.  He pointed out a lot of avenues we can go down to help me win this.  I trust him and I think it's time I hire someone since my "layman" experience has taken me as far as I can go.

One major catch he caught that I didn't know, is a DRO can not dismiss a medical opinion as this DRO did so in my SOC.  If anything he would have had to get another medical opinion to reconcile my doctor's opinion as to it not being probative. 

The avenue he is going to seek for me in the FORM 9 is to request a formal personal hearing with a new DRO in St. Petersburg, FL.  I now live in Florida so that might be a possibility.  This way I am out of the Waco Office.

Between my conditions getting s/c hopefully to May 2013, appealing my scar of 0% to 10% in my most recent decision, and appealing my 10% left ankle from my most recent decision, John feels this is a good case.  Of course no one can promise me a guarantee and I understand that.

I never thought I would have to get to this point but I am there to fight another day!

Buck, Broncovet, Berta, T-Bird, ARG11, and so many others, thank you for your support and help!  If I haven't gone on the Hadit talk show, I never would have met John Dorle.

[Navy4life]

10 hours ago, Buck52 said:

It looks good to me Navy4life

but remember to go through the proper channels with your claim...like broncovet mention  CUE's are hard to win...even when you think its in black & white  they can come back with tech stuff.

I'm not saying CUE is out,  but just need straight forward evidence and how to write in a CUE Claim.

This is a case that Ms Carlie. would be good to help you with,.she was an expert with CUE'S  here on Hadit, Unfortunately Ms Carlie passed away in November 2015 she is missed. RIP Ms Carlie.....  she has post here on hadit you might want to check out in the CUE Forums.

As broncovet mention look up some past CUE Claims and see what you think?

After you file the  9 you will get further instructions  how to proceed. 

It looks like to me the Waco DRO should have seen these errors at your Hearing...he didn't so you can request another C&P on these contentions.

If you can I'd do that before filing CUE you will probably win and get this out of your life.

stress is no good girl!  CUE Claims are very stressful

Buck;

You are correct regarding the CUE.  Look at my post I just put on here about hiring John Dorle

[Berta]

Gee, I dont feel I helped you much here at all Navy4life........did John Dorle feel this was a CUE basis ?

"One major catch he caught that I didn't know, is a DRO can not dismiss a medical opinion as this DRO did so in my SOC.  If anything he would have had to get another medical opinion to reconcile my doctor's opinion as to it not being probative. " Right...One for the claim and one against- if both have equal merit and weight- means under Benefit of Doubt,meaning  the claimant wins.(But VA owns the scale)

It is definitely CUE if a DRO ignores a probative independent medical opinion.

Dr. Bash had a fit when a DRO completely ignored the first IMO he did for me.

Then they did a posthumous C & P exam that they used to support the denial. Dr.Bash did an additional opinion and they still ignored it completely- same DRO- double DRO review.

I even had former VA secretary Mansfield to submit the IMO for me, thinking that would make them read it..but even that didnt work. 

That was in 2005. I got smarter.

The last time my RO pulled this BS on me was last year. They completely ignored AGAIN a probative medical opinion that supported my claim (HBP under 1151) and this time the medical opinion I had was from the VA's top cardio doc in Washington DC...it just goes to show VA will even ignore their own doctors if they can. I  asked them to CUE the denial and they reversed and awarded and it didnt take long.

38 CFR 4.1 et all, and specifically 4.6 is a Powerful tool !!!!!!

"The avenue he is going to seek for me in the FORM 9 is to request a formal personal hearing with a new DRO in St. Petersburg, FL.  I now live in Florida so that might be a possibility.  This way I am out of the Waco Office. "

That sounds like a good idea to have another DRO look at the claim but I am surprised he said to request that type of hearing on the 1-9.....do you still have time to respond with a 21-4138 to make that request?

 

 

 

 

[Navy4life]

2 minutes ago, Berta said:

"The avenue he is going to seek for me in the FORM 9 is to request a formal personal hearing with a new DRO in St. Petersburg, FL.  I now live in Florida so that might be a possibility.  This way I am out of the Waco Office. "

That sounds like a good idea to have another DRO look at the claim but I am surprised he said to request that type of hearing on the 1-9.....do you still have time to respond with a 21-4138 to make that request?

 

Berta;

We have yet to fill out the Form 9 yet.  He was thinking of this avenue.  Are you suggesting we ask for the formal hearing on a VA21-4138?  My SOC is dated 8/23/16 so I am still in the 60 window to file it.  

[Navy4life]

3 minutes ago, Berta said:

"One major catch he caught that I didn't know, is a DRO can not dismiss a medical opinion as this DRO did so in my SOC.  If anything he would have had to get another medical opinion to reconcile my doctor's opinion as to it not being probative. " Right...One for the claim and one against- if both have equal merit and weight- means under Benefit of Doubt,meaning  the claimant wins.(But VA owns the scale)

It is definitely CUE if a DRO ignores a probative independent medical opinion.

Berta;

So I should file a CUE based on the DRO and his response in the SOC stating "we have opinions relating this condition to falls in the military and also falls related to your service-connected left ankle condition after service.  Both opinions lack a rationale sufficient to support a grant of service connection"

The DRO is referring to "opinions" the letters dated January and February 2016 on my behalf to support BOTH my NOD and my most recent claim.  Those letters are on this forum under other threads.  Here is the one again that my doctor wrote up for me for the NOD.

Nexus letter-redacted .pdf

[Berta]

Yes, I feel you should request a formal hearing on a 21-4138.

 I do see this statement might be the main problem:

"Both opinions lack a rationale sufficient to support a grant of service connection"

But the 2016 medical opinion says there is no other etiology or cause for the disability,and certainly gives a medical rationale.I don't understand why they say it is not sufficient.

Not only is this from a VA Podiatrist, this doctor is also a surgeon.

Maybe they need some sort of abstract or treatise that states that anyone with this type of ankle condition would be at risk of falls and loss of balance.

I dont get it.I have severe pronation and that affects my ankles.It has caused me many balance problems and also some falls in the past...even with braces and orthotics.

But this just goes to show that there is no regulation that demands the VA should apply  common sense (or even any regulation that says they have to be literate)