Help to fight this denial

[ShuMan]

I was denied a claim for left shoulder tendonitis and left shoulder arthritis due to the condition neither occurred in nor was caused by service. I included a nexus letter, here is the medical logic from the nexus.

“The patent demonstrated physical examination findings at the C&P examination 3 months after discharge from the military on 10/30/2009. At the time the examiner reported diagnosis of chronic left shoulder strain and found crepitus on the physical examination. At another C&P examination on 09/29/2015 the examiner reported decreased range of motion and pain with movement on examination, a compensable finding. Additionally, Mr. Vet has a diagnoses of left shoulder tendinitis, osteoarthritis of the left AC joint, left shoulder strain, and impingement syndrome of the left shoulder by an orthopedic specialist on 11/16/2016.”

“The attached medical documentation demonstrates the presence of the conditions in service, a chronic ongoing condition, and a current disability”

I have contacted the doc that wrote me the nexus and she is writing a letter for me and I am filling for a reconsideration.

I believe they denied me due to the chronic should strain not being diagnosed until 3 months after discharge at C&P exam. I thought that since it was within one year it could be service connected.

Does anyone know the regulations I can quote to fight this?

[Vync]

The quotes you posted seem to be missing parts of the Caluza triangle, which are the three typical requirements for SC:

1. Injury/event during service (<== missing)
Check any/all service treatment records for something that happened while you were in the service which might have caused the disability. If you have a lot of records, that can help. Buddy letters from friends and family can also help, but the VA seems to give them less weight than a doctor's opinion.

2. Current diagnosis (<== you got this)

3. Medical nexus connecting #1 and #2 (<== missing)
I didn't see this part in your quotes, so I am not sure if you just excluded it. That's where the doc ties your current diagnosis to the injury/event in service. Plenty of examples are here on this site.

Here are the levels of certainty that the doc must indicate and with jargon similar to what's below, but with a strongly worded medical explanation.

50%/50% = "as likely as not"
75%/75% = "more likely than not" or "most likely"
100% = "due to", "caused by", etc...

Anything less than 50%/50% and no dice. They should not use "probably" or "possibly" because the VA tends to ignore dictionary definitions and deny when they see these words.

[broncovet]

VYNC is spot on, and answered almost word for word the way I would.  

No regulation will "fix" the lack of one or more of the big 3 Caluza triangle.  

 Only an IME/IMO will do that, unless, of course you did have the Caluza triangle and the VARO top sheeted your claim or lost some of your evidence.  

You may not be able to tell which of these happened until/unless you order your cfile and actually read for yourself your nexus and "in service event or aggravation".

I do think, as you indicated, you are given a presumptive within a year of service.  What this means is that if your 

pre entrance physical was negative for these conditions, and if you had the malady withiin a year of exit from service, then yes, you get a presumptive.  VA can "rebut" said presumptive, if something happened like an auto accident was documented to have caused your issue after service.  

Therefore, my advice is:

1.  Get a copy of your cfile.  Read it. See if you do/do not have the caluza triangle.  Rememeber, its not what the doc tells you, its what he wrote down and documented that matters.\

2.  After you get the cfile, and read it, its "decision time".

a.  In the event you do NOT have the caluza big three, but you do know that information SHOULD be there, such as missing exams/ missing SMRs, then file a request to reopen due to 38 CFR 3.156 New and material evidence.

b.  In the event YOU DO have the caluza big three documented, but VA could not read, then simply file a nod on that basis, citing the exams/smr's which document your big 3.  

In each case this needs to happen before a year to preserve your effective date, just in case VA messes you around for a year sending your cfile.  While it should be a valid reason to toll the 1 year time period for appeal, it is not unfortunately.  In other words if it takes the VA more than a year to send you your CFILE, the VA says its YOUR fault for not sending in your nod in time.  

[ShuMan]

1 hour ago, Vync said:

The quotes you posted seem to be missing parts of the Caluza triangle, which are the three typical requirements for SC:

1. Injury/event during service (<== missing)
Check any/all service treatment records for something that happened while you were in the service which might have caused the disability. If you have a lot of records, that can help. Buddy letters from friends and family can also help, but the VA seems to give them less weight than a doctor's opinion.

2. Current diagnosis (<== you got this)

3. Medical nexus connecting #1 and #2 (<== missing)
I didn't see this part in your quotes, so I am not sure if you just excluded it. That's where the doc ties your current diagnosis to the injury/event in service. Plenty of examples are here on this site.

Here are the levels of certainty that the doc must indicate and with jargon similar to what's below, but with a strongly worded medical explanation.

50%/50% = "as likely as not"
75%/75% = "more likely than not" or "most likely"
100% = "due to", "caused by", etc...

Anything less than 50%/50% and no dice. They should not use "probably" or "possibly" because the VA tends to ignore dictionary definitions and deny when they see these words.

Hey Vync!

Thanks for the response. 

As far as missing the in service event. I am service connected for my right shoulder but my left was only diagnosed 3 months after my discharge date at the C&P exam for my right shoulder. Shouldn't this qualify as my in service event because it was diagnosed within in a year of discharge?

I could be wrong but I thought I heard that somewhere. 

[ShuMan]

7 minutes ago, broncovet said:

VYNC is spot on, and answered almost word for word the way I would.  

No regulation will "fix" the lack of one or more of the big 3 Caluza triangle.  

 Only an IME/IMO will do that, unless, of course you did have the Caluza triangle and the VARO top sheeted your claim or lost some of your evidence.  

You may not be able to tell which of these happened until/unless you order your cfile and actually read for yourself your nexus and "in service event or aggravation".

I do think, as you indicated, you are given a presumptive within a year of service.  What this means is that if your 

pre entrance physical was negative for these conditions, and if you had the malady withiin a year of exit from service, then yes, you get a presumptive.  VA can "rebut" said presumptive, if something happened like an auto accident was documented to have caused your issue after service.  

Therefore, my advice is:

1.  Get a copy of your cfile.  Read it. See if you do/do not have the caluza triangle.  Rememeber, its not what the doc tells you, its what he wrote down and documented that matters.\

2.  After you get the cfile, and read it, its "decision time".

a.  In the event you do NOT have the caluza big three, but you do know that information SHOULD be there, such as missing exams/ missing SMRs, then file a request to reopen due to 38 CFR 3.156 New and material evidence.

b.  In the event YOU DO have the caluza big three documented, but VA could not read, then simply file a nod on that basis, citing the exams/smr's which document your big 3.  

In each case this needs to happen before a year to preserve your effective date, just in case VA messes you around for a year sending your cfile.  While it should be a valid reason to toll the 1 year time period for appeal, it is not unfortunately.  In other words if it takes the VA more than a year to send you your CFILE, the VA says its YOUR fault for not sending in your nod in time.  

Brocovet, 

Your answers are always very detailed and thought out. I appreciate the advice. 

I think i do have the triangle due to the one year presumptive period after discharge. I have a diagnosed condition 3 months after discharge, current condition and nexus. I'm thinking the va denied it because it wasn't technically in service. 

[Carl the Engineer]

This may sound to simple, but the VA will not connect the dots for you.

You need to claim your left shoulder secondary to your service connected right shoulder.  That way you do not need to show in service injury, you already have that.

I was service connected for my left shoulder when I left service.  A year and a half later, my right shoulder hurt with movement and my right elbow hurt with movement.  I then claimed both right shoulder and right elbow secondary to my left shoulder and won.  Overcompensation from my service connected left shoulder injury.

Here is the kicker, I am 10% left shoulder, and 20% right shoulder (dominate ROM), and 20% right elbow (ROM).  So that one 10% service connected disability got me two 20%'s.

If you were trying for SC for your left shoulder 3 months to late to show it happened while on duty, that is probably a loser.  The VA is a stickler on the easy things.

Wait a while, get a good IMO and file for secondary to your service connected issue.  In my shoulder case(s), I used the C&P exam where they compared both my shoulders.  The examiner said both my shoulders had arthritis and I asked here if overuse could cause that and she said yes.

FWIW, I am also 30% heart disease secondary ot 10% HBP.  I used private medical records for the connection here, however, the x-ray evidence gave me the 30%.

Secondaries are where the money is!!  You don't have to prove inservice, you already have that part.

I wouldn't fight the denial, just except it and move on a different angle,

Good luck,

Hamslice

 

 

Edited May 15, 2017 by Hamslice
damn spelling

[ShuMan]

9 hours ago, Hamslice said:

This may sound to simple, but the VA will not connect the dots for you.

You need to claim your left shoulder secondary to your service connected right shoulder.  That way you do not need to show in service injury, you already have that.

I was service connected for my left shoulder when I left service.  A year and a half later, my right shoulder hurt with movement and my right elbow hurt with movement.  I then claimed both right shoulder and right elbow secondary to my left shoulder and won.  Overcompensation from my service connected left shoulder injury.

Here is the kicker, I am 10% left shoulder, and 20% right shoulder (dominate ROM), and 20% right elbow (ROM).  So that one 10% service connected disability got me two 20%'s.

If you were trying for SC for your left shoulder 3 months to late to show it happened while on duty, that is probably a loser.  The VA is a stickler on the easy things.

Wait a while, get a good IMO and file for secondary to your service connected issue.  In my shoulder case(s), I used the C&P exam where they compared both my shoulders.  The examiner said both my shoulders had arthritis and I asked here if overuse could cause that and she said yes.

FWIW, I am also 30% heart disease secondary ot 10% HBP.  I used private medical records for the connection here, however, the x-ray evidence gave me the 30%.

Secondaries are where the money is!!  You don't have to prove inservice, you already have that part.

I wouldn't fight the denial, just except it and move on a different angle,

Good luck,

Hamslice

 

 

Hamslice! 

Thanks for the advice brother, I'll reach out to the doc that wrote this letter to see if they think I can get secondary service connected for this.

Agreed I haven't even went after any secondary service connections yet.