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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

Question

Hello Fellow Vets, I'll try to make this a quick an easy read.

 

I joined the Navy in July 2008 and served 5 years of continuous duty. By the time I was out I had several issues that were not present at my join date and eventually filed a claim for my benefits. Upon departure from the Navy, I filed a claim and was denied benefits for headaches, depression, a left knee and right knee condition. When I received my decision packet, it stated that these conditions could be granted a rating if found service connection. When I met with the DAV representative, he stated that if I could have my primary care doctor write a letter and say the conditions were service connected I would be able to have it reconsidered. So my Primary Care Doctor who is a medical doctor, reviewed my medical record and she drafted a nexus letter that supported my claim (with proper language *more than likely service connected) for all the conditions I listed above (and others I will have to go back and file for at a later date). In addition, she diagnosed my headaches as being migraines as opposed to just headaches ( after I gave her the symptoms I had been experiencing). I submitted this letter in June of 2016.

In September 2016 my claim went to preparation for decision and then was kicked back and the VA requested a C&P exam. This exam was conducted by a Nurse Practitioner. She opined that my headaches were due to elevated levels of estrogen and that I was cleared from physical therapy in August 2012 so neither condition was service connected.

As I result I dug through my medical record and found evidence of reports of "severe and unusual headaches" on documents that were dated as early as October 2008 before I was ever on birth control. And reports of me complaining of knee pain after I was cleared from physical therapy in the year 2013. Though I found proof that I had been reporting these issues and nothing was being done about it, I also questioned how a science assumption could be made in this matter. If indeed I was suffering from elevated estrogen levels, shouldn't the NP have conducted some sort of blood work? It was not done....EVER.

 

So my question today is Do you think that the opinion of the NP will out weigh the opinion of my MD ( who is also an employee of the VAMC in Atlanta, GA?

 

Thanks For your time!

 

 

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Did your PCP who did the nexus letter go over your SMRs carefully?

Did the PCP doctor do any urine or blood test for estrogen levels?

You are right...it takes a test via urine or blood to determine estrogen levels and they change with menstruation cycles.

I think the nurse googled what I just googled...yes headaches can occur if the estrogen is too high....

but how would the nurse know what the estrogen level was.....? VA does not allocate crystal balls.

I hope the PCP's nexus letter conforms to the IMO/IME criteria here at hadit....with a full medical rationale.

It is searchable in 'Read first before getting an IMO'

We will be dealing with more NP C & Ps  soon....VA wants ARNPs to take the place of doctors.

If vets make enough of a stink about that maybe the new presidential administration can change it.

Nothing wrong with APRNs... but they are not MDs. 

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When I originally applied for disability, I was denied with the response " Service Connection may be granted for a disability which began in military service or was caused by some event or experience in service. Service connection for (headaches, left knee condition, and right knee condition) is denied because the medical evidence of record fails to show that this disability has been clinically diagnosed".

 

When my PCP and the NP went through my record they found a diagnoses of Patellofemoral Syndrome in 2008, but my PCP stated that my migraine headaches were more than likely getting worse because of my depression. The depression was not an argument at all. Its on several pages of my record, with perceptions for the condition.  

 

The rationale that the NP provided was that my separation assessment in" 2013 indicated that the condition healed". However at my time of separation, I hand wrote out that I was still experiencing pain. The medical provider who signed off stated, " the rare discomfort she reports is non limiting". I would think that at this time me reporting the pain and her saying its just non limiting would still mean that it is not healed.

 

Also I reported the "severe and unusual headaches" in 2008. I was never diagnosed and was taking motrin. But I always reported them. At separation, the medical officer wrote " She has not been seen for headaches for a few years She is not taking any prescription medication for headaches". My symptoms were reported as "I get dizzy often and have headaches" and on another report, "Often find myself dizzy (unknown why), never fainted. Headaches daily (taking motrin). These are all things I reported during service and before exiting service. How are they not service connection.

 

No one took a blood or urine sample from me, so how could estrogen levels be an indication of the reasoning for my headaches. And because I reported these things to the military before I left and no one did anything about it, doesn't that show a disregard for my health concerns. I mean here I am telling these medical professionals that I have headaches and I get dizzy from them and no one is saying  you might need something stronger than motrin. No one is saying lets get you a neuro consult. I mean if I knew then what I know now, I would have. But I didn't so they should be more willing to take care of their veterans. I shouldn't have to suffer or worry about losing my job due to having trouble with lights in my company's office. And I shouldn't have to wait another 3 years for benefits.

 

After submitting this information to ebenefits I felt good pointing out that these conditions were there and that I had been telling the Navy for years, but I cant help but wonder if it will get over looked.

 

Has anyone heard anything about the benefit of the doubt doctrine? Do you think it will apply here?

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UNDERSTANDING THE BENEFIT OF THE DOUBT DOCTRINE

Worth a read. Includes the following:

 

Effective advocates understand (1) the benefit of the doubt doctrine and (2) that the doctrine applies to each element of a claim.

The key language: “ . . . When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter [VA] shall give the benefit of the doubt to the claimant.”

“The tie goes to the runner.” read Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet.App. 518 (1996).

The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102.

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The Benefit of Doubt doctrine is applied to almost every type of claim.

It is also called the theory of Relative Equipoise.

What it means is if the evidence is equally for and equally against the claim, then the VA should award the claim under Benefit of Doubt.

The problem is that the VA owns the scale and often  kicks Blind Justice in the knee, so that her scale tips in their favor.

But if any claimant is willing to go the whole 9 yards, often by obtaining a strong independent medical opinion,

and proof of their inservice nexus, or whatever they need that will support their claim, then the claimant should be able to expect an award under BOD.

 

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This is how the BVA worded it (BOD) in my BVA award 2009:

The veterans diabetes had never been diagnosed or treated in his lifetime,so this was not an easy claim to win.But I knew it would succeed and was disappointed that the BVA didn't mention that I had an absolute  s--t load of probative evidence...:rolleyes: I found even more after I got the award letter.

It was way beyond Relative Equipoise.I had ample lay evidence to also include 3 IMOs.

"3.  The weight of the competent evidence is at least in

relative equipoise on the questions of whether the Veteran

had diabetes during his lifetime that was caused by Agent

Orange exposure during his Vietnam service, and whether that

diabetes caused or contributed substantially or materially in

causing the Veteran's death."

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