de novo Help needed to understand a De Novo Review

[ardodd]

My question is about De Novo Review and how the DRO reviews the evidence.

In my DRO hearing I raised the several questions about the Denial of Compensation.

Question 1)

I addressed the DRO in asking how the VA could change the diagnosis from "Bilateral Patellofemoral Syndrome" to "Osteoarthritis"?

Clearly I was Discharged with "Bilateral Patellofemoral Syndrome" under VA Code 5003-5099

Hearing

Me: 

they're basing on traumatic arthritis...okay.

I'm not 20 years old no more [sic]...

patellofemoral syndrome has progressed from 

that on up and on up until now we've got an

end result of osteoarthritis.

DRO:

Mm-hmm

Me:

So, the medical exam... everything's pointing...

saying, well, we're denying you for the

patellofemoral, but we're gonna give you

arthritis.

DRO: 

No, that's not... that's not the case.

Me:

Well, that's...

DRO: 

(Inaudible)...

Me:

...what it says right here.

DRO:

...you're essentially service-connected for your

knee condition, whether...you know...it's...it

may be called different things, but essentially

that is what you're service-connected for...is

your knee condition. We can't...we don't...we

can't evaluate it by splicing out different

diagnoses or your...you know...involving your

knee. We evaluate based on...like...what we

discussed earlier...you know...your range of

motion...instability...that kind of thing.

Power of Attorney:

They're saying that your patellofemoral

syndrome has progressed to the point where

there's osteoarthritis at this point and that's...

that's what you have right now.

Me:

That's what I got right now...

Power of Attorney:

Right

Me:

...but they're still not warranting...they're...they

were denying the patellofemoral.

Power of Attorney: 

Mmm. They're just saying it's...it's not

patellofemoral...

Me:

Yeah.

Power of Attorney:

...anymore it's...it's arthritis now.

Me:

Well, that's the word they used...they denied it.

Power of Attorney:

Oh, well, they shouldn't have said that.

DRO:

Yeah, and I'm...I'm not sure that that was a...

you know...a completely accurate description in

there, but...

Me:

Well, because...I mean...

DRO:

All right, do you have anything else?

 

And then the DRO closes out by stating that this Appeal is only about the related evaluation of the knee condition. And if I wanted a earlier effective date I would have to file a Claim for it.

My question is if it is a Review of Claim then why is the DRO only going to look at the evaluation and not the complete claim? I mean he is suppose to be bi-partisan and look at all evidence objectively.

Should the DRO of looked at the whole Claim because it was a Reopened Claim ? 

 

[Gastone]

I'm somewhat twisted here myself, I didn't think the I-9 got filed. If you're not sure of the Filing, File it again yourself, send it US Mail Certified Return Receipt.

Do you know if you have filed a claim for IU (Individual Unemployability)? If not, consider doing so as an FDC immediately on your E-Ben account.

For future reference, remove your name and SS act number (Redact) from all materials you attach to your post. If possible try scanning documents as pdf's to attach to your posts, much easier to read.

[ardodd]

4 hours ago, Berta said:

or ,if not, how much more time do you have to file it.?

I believe Gastone mentioned  applying  for TDIU and I concur with that .

@Berta I do apologize as I thought I had control over this situation. To answer your question the time for the Appeal has expired. And we did not get a SSOC from the VSO local office.

That is why I am asking since the time has expired and we did not file the VA Form 9 in time the Claim is now considered Final.

Is there any way - reason - circumstance that you know of that I can search for to try and get a SSOC from the DRO? As I never come across this before and do not know if there is any way to get the Denied Final Decision Reopened.

[Berta]

I thought they gave you  C & P exam recently for the knees....and would send a SSOC or something.

I am completely lost here and I  am sorry  that I cannot help . 

[ardodd]

2 hours ago, Berta said:

I thought they gave you  C & P exam recently for the knees....and would send a SSOC or something.

When we missed the Appeal Deadline we were told that we had to start all over again as the Decision was Final and Closed.

I started a Intent to File back in February of 2017 and did not finish that Intent until November 17, 2017. That is why he got a PTSD Exam and a C/P exam for the surgery he had on his left knee from it.

I am asking if there is anything now or previously that would cause the DRO to have to issue a SSOC since he had the total knee replacement. All evidence that we have submitted up until the Appeal Denial honestly has not been considered. As all the RO says is that it is not New & Material Evidence. So no matter how many knee scopes and replacement(s) he has they say it has nothing to do with "Patellofemoral Syndrome." 

We are just as confused as you are. We do not understand how anyone with the New Orleans VA Regional Office can continue to Deny all the past doctor statements and diagnosis's for his knee condition.

The DRO at the Hearing even stated that he is Service-Connected for ( Knee Condition ) and they can only base my Claim on what I have now. Which defeats the purpose of a De Novo where he was/is suppose to consider all evidence past and present.

Will they have to reopen his Appeal because of his Total Knee Replacement. It shows he continued to have the same problems and worsening of that condition?

Yes i did File for IU and Temporary Total Disability because of the Replacement.

 

[ardodd]

**UPDATE**

I spoke to the VA today using the 800# to check on the status of my Claims. While speaking to the lady from the VA I mentioned about a C/P Exam on the 22nd of February 2015. Which was for Increase of Rating for Osteoarthritis. 

I have since the exam argued that she lied and made false statements. I was able to download a copy of the exam from vets.gov website. At the very end of the exam notes she made this statement:

Quote

The Veteran has two conditions: Patellofemoral syndrome and osteoarthritis/degenerative joint disease. Given the recent radiographic changes of tricompartmental degenerative joint disease, it is more likely than not that the degenerative joint disease is the predominant etiology of his knee pain and reduced range of motion.

She confirmed what I have said for 27 years that I had it when discharged and it is service-connected.

So I asked the lady from the VA that was on the phone, how if the DRO was doing a De Novo Review. How he could miss this or why he ignored the evidence and did not want to correct the claim.

After about 5 minutes the lady from the VA come back on the phone and said that it was a Clear and Unmistakable Error.  

Then for almost a hour she kept trying to defend what was done, and then she finally come back and told me that I would have to file a Claim. And when I file the Claim I needed to file for "Patellofemoral Syndrome" and "Osteoarthritis/DJD". Then in the statement of support I need to be very specific about how I word it.

She recommended I ask for a earlier effective date back to June 15, 1999. I must include a reference to the above statement of record from the March 20, 2016 C/P Exam. And request that the earlier effective of Patellofemoral Syndrome and Osteoarthritis be dated back to June 15, 1999.

She recommended that I address it as a CUE where the DRO failed to apply the evidence that the C/P examiner stated I had Patellofemoral Syndrome and Osteoarthritis. 

I have two options if all of this is correct and it is a true CUE:

1) I seek out a Legal Representative ( Berry Law Firm ) that has the experience and legal knowledge to be able to file it correctly.

2) I find a VSR ( Accredited Representative from the DAV ) which is experienced in handling CUE Claims.

I am asking that @Gastone, @Berta, @asknod please take me seriously. As I need experienced advise since I would only have chance to prove that the VA has been wrong all this time.

Thank you and sorry to be of a nuisance to this community.

I do understand as today is a good for me and I am able to think a little clearer. And I know my MH condition does create a problem alot. 

I do apologize for that.

[broncovet]

Maybe, just maybe I can clear this up.  

Osteoarthritis (OA of the knee) and patello femoral syndrome (PFS of the knee) could have overlapping symptoms, and, you only get paid for "one" of these, not both.  Let me give an example, and note that it may or may not apply to YOU.  

Let's say you have the symptom of "painful movement" of the knee with BOTH diagnoses..PFS and OA.  You could be diagnosed with both, but "pyramading" prevents getting compensation for 2 diagnosis for the same symptoms.  

Ditto if your "range of motion" was limited with OA and PFS..you can only get compensated for one.  

Im not an expert on OA and PFS, and Im not sure if they have overlapping symptoms or not, but I suspect that they do.  

In other words if you are getting paid for the symptom of "pain and limit of range of motion" for OA, then you wont get paid for pain an limit of range of motion for PFS, because "pyramiding" is prohibited for the same joint.  

Now, if you have PFS of the knee, and you also have OA which affects another joint(s), then you can get paid again, since you could have a disabling arthritic condition of your knee, and also you could have a disabling arthritic condition of your arms, for example.