New Fed Cicuit court ruling

[Andyman73]

How does this new ruling from the fed circuit court effect claims denied because pain was ignored or dismisssed?

[Andyman73]

On 4/4/2018 at 1:34 PM, Buck52 said:

 IN a Remand Don't a final decision as to a denied claim only reflect what they denied the claim for?  for that particular claim  ( in the reasons and bases)

and only use the reasons and bases for the denial.  How can they make a decision in a claim if that  pain was not addressed and ignored or never read.

in other words are they required to go back and find another way to deny?

Chronic Pain can cause other conditions to worsen and be the cause of new chronic conditions.

Hill & Ponton Attorneys Says

The VA does not have a specific diagnostic code for chronic pain. In order to receive VA disability compensation for chronic pain, the symptoms caused by the chronic pain disorder must be ratable. For example, oftentimes a veteran’s chronic pain will cause depression. In that case, the veteran’s chronic pain would be rated according to the rating criteria for general mental health disorders.

Keep in mind that, in order for symptoms of chronic pain syndrome to be ratable, the source of the chronic pain must be a service-connected condition. For example, a veteran with a service-connected back condition suffers from chronic pain. The chronic pain causes the veteran to become severely depressed. Because the chronic pain developed out of a service-connected condition, the veteran can receive VA benefits for the depression caused by his chronic pain. In other words, the depression is secondary to the veteran’s service-connected condition.

Buck, 

I was denied secondary SC for MDD due to chronic back pain, because the examiner felt my depression was due to other factors just as much. Even though those other factors he cited were years after the back injury occurred. One such issue was marital problems, however, I was injured in November 1992, married April 1999. And marital issues didn't begin to effect me until mid2000s. But the back pain was there, constantly since 11/21/1992. Not that this matters now, since I have a lowball 50% for PTSD anyway. 

How do I go about filing or refiling claims that were wrongly denied due to the VA's illegal stance of pain not being disabling? All of those claims are well past the 1 year NOD time frame. Is this now a good time to revisit the lawyer issue? Now that this ruling has come down, there is potential for 5 figure retro compensation. 

Honestly I do feel some level of vindication. Only in the sense of me knowing the VA was wrong on this, from day one. Yet, I also feel taken advantage of and dismissed by the VA as well. Because now it's been legally determined that the VA was illegally denying millions of Vets their SCDs on the false premise of pain not being disabling. 

Andy

 

[Buck52]

Andyman how you been doing my friend?

If I was you I would either file a new claim or file to reopen

Reopened Claim

A reopened claim is a claim filed for a benefit that could not be granted and the decision has become final, meaning that it is over one year old and has not been appealed. VA cannot reopen these claims unless new and material evidence is received. New evidence is evidence that the VA has never before considered in connection with the specific benefit claimed. Material evidence is evidence that is relevant to and has a direct bearing on the issue at hand.

Example 1

A Veteran was treated several times during service for pain in the right elbow. He filed a claim for service connection in 1989, but his claim could not be granted because no orthopedic abnormalities were found on VA examination. Two years later, his private physician x-rayed the elbow and noted arthritic changes in the joint. The Veteran submitted the new evidence to VA. Because it suggested a residual of his in-service elbow problems did exist, VA reopened his claim.

Example 2

 

A Veteran was discharged from service in 1977. He filed an original claim for service connection for pes planus (flat foot) 20 years later. VA was unable to grant his claim because pes planus was never noted in the Veteran's service treatment records. In 2001, he attempted to reopen his claim by submitting a statement from his private physician confirming the diagnosis of pes planus. VA was unable to reopen the claim because, while the evidence was "new," it was not "material," in that it failed to demonstrate the Veteran was diagnosed with pes planus during service.

New Claim

A new claim is a claim for a benefit that may or may not have been filed before. Generally, the decision made on the claim is based entirely on new evidence. These may include claims for:

An increased disability evaluation

Special monthly compensation

Individual unemployability

A new claim differs from a reopened claim in that a decision on the claim is totally independent of any evidence submitted in connection with an earlier claim.

econdary Claim

These are claims for disabilities that developed as a result of or were worsened by another service-connected condition. In other words, it is recognized that a service-connected disability may cause a second disability. This second disability may not otherwise be considered service-connected.

Example 1

A Veteran has a service-connected knee injury that causes him to walk with a limp. He subsequently develops arthritis in his hip. Although the arthritic condition was not incurred during or aggravated by service, service-connection may still be established if the arthritis is a result of his knee condition.

Example 2

A Veteran was in the Army for twenty years. During her military service, she was diagnosed with hypertension. After her discharge, service-connection was established for hypertension. She was subsequently diagnosed with a heart condition. Service-connection for her heart condition may be established as secondary to the hypertension.

   

Edited April 23, 2018 by Buck52

[Andyman73]

Hey @Buck52, how ya been?

Guess I’m gonna have to go back to the drawing board with my secondary claims. They have all been denied based on the ‘pain itself is not disabling’ premise, or no in service dx. I never could understand how the VA had been treating me for a handful of various physical ailments that they would not dx. Now I know. I had asked the dr treating me for me back, the past few years, what was wrong with me. 

All he would ever give me was a runaround answer how it could be this thing or that thing. Now I know why, same for neck too.

On a good note, since leaving wife, she can’t prevent me from go to dr/specialists to get dx and MOs. Just have lay out money is all. 

Earlier this week I discovered a shiv in my back, figuratively, from the VA. Was looking at eBenefits to add my adopted daughter as a dependent. I saw they had reduced my back from 40% to 20%, the “shiv”. Almost lost my temper!!!  I don’t remember if I had mentioned it here, that I got a letter stating they wanted to. Based on erroneous data given by a PA while being seen for something not related to my back.

Buck, right after that I scheduled an appointment with the VA dr who had been treating my back. I explained it all to him. So he gave me a once over, and used a goniometer to get measurements, which were solidly in the 40% rating range. I sent off a copy of his report highlighting his measurements along with a statement. But it seems that without even looking at me, they chose the PA’s opinion over the PhD MD who had been seeing me regularly.  

While my compensation rate didn’t drop, it can’t be too far from that. 

Just when I finally got to a place where I could start moving forward, I run into yet another obstacle from the VA.

[Richard1954]

On 4/4/2018 at 12:34 PM, Buck52 said:

 I

Keep in mind that, in order for symptoms of chronic pain syndrome to be ratable, the source of the chronic pain must be a service-connected condition. For example, a veteran with a service-connected back condition suffers from chronic pain. The chronic pain causes the veteran to become severely depressed. Because the chronic pain developed out of a service-connected condition, the veteran can receive VA benefits for the depression caused by his chronic pain. In other words, the depression is secondary to the veteran’s service-connected condition.

Yes but in this example the pain is still not rated, the depression is......there should be a rating just for pain by itself especially when you have been diagnosed with a pain syndrome. 

[Vync]

1 hour ago, Richard1954 said:

Yes but in this example the pain is still not rated, the depression is......there should be a rating just for pain by itself especially when you have been diagnosed with a pain syndrome. 

I agree with that, but I do not trust the VA to accurately assign fair %'s.

In my case, I have a 30% TMJ rating based on ROM. It limits my ability to eat many foods, but the big problem is my job keeps me on the phone all day. After a few hours of work, the pain can go from a constant 3 to about a 7. Then headaches and neck pain/spasms kick in (I'm SC for both, too). It's not unusual for me to leave work early or have to go to the doctor because of it. But with VA logic, my TMJ is just a 30% rating.

 

[Buck52]

It will be interesting to see just how they rate pain?...right now I have no clue.

I mean will they need a tool? like the tool to measure ROM but ROM is not pain  only until a veteran cry's out with stop stop I can't stand the pain  and the examiner looks at the tool position and give his/her opinion on the veterans pain.

Unless they ask the Veteran to describe his pain from 1-10  And base the pain level or degree on that?  higher the # the more worse the pain. and does the pain need to be constant? or does it come and go...there's a lot of questions on this  rate your pain for compensation.

which would be stupid...all veteran will have a 10..of course!  eh!!