C&P exam Scheduled for Re-opened flat feet claim

[doc25]

So, I was able to obtain a filled out DBQ for Pes Planus (flat feet) and submitted a claim  to re-open my previously denied claim.

I've been scheduled for a c&p exam with LHI and a Nurse Practitioner is doing the exam.

The anxiety shot through the roof when I got the letter (it never gets old). 

I've read through my initial c/p exam from 2007. That one was done by a PA and the examiner somehow concluded that my in-service diagnosis was congenital (pre-existing) without looking at my entrance exam that says I had normal archs. That claim was denied. I was denied again in 2016 when I reclaimed it. This will be my third time claiming it. 

Hopefully, 3rd time is the charm. 

Can I take all my evidence? Or no?

 

[doc25]

7 hours ago, JKWilliamsSr said:

That is a clear error.  I am going to assume they had all of this information before them when they made the denial. The key here imo is the diagnosis to state that your flat feet is congenital.  In your denial did they state how they came up with that diagnosis?  Did they do any X-Rays? Do you have a diagnosis from your own dr?

Ok. I will start over.

1. A Navy podiatrist made the initial diagnosis 12/5/2007 of bilateral flat feet (nothing of congenital was noted on the Dr.note.)

2. June 2007 a PA conducted the exit c&p exam. Only rationale he gave was that I was given orthotics then made the "congenital bilateral flat feet with symptomology".

3. In 2016, a VA podiatrist made the diagnosis of bilateral flat feet. His note did not mention anything about congenital flat feet. I am still being treated by the VA podiatrist.

4. Yes. Xrays were done in-service and through the VA. The bone clearly has an arch that was developed on the xray but when I stand my arches (muscles,tendons)collapse and my feet pronate. This is called Aquired flat feet.

If I had congenital flat feet in my entrance exam (I was 18 upon enlistment) I would have had xrays done to show the bone was not fully developed into an arch or there had been a previous injury; and if osteoarthritis was present, that's all an xray would show. 

Besides, the Flat foot DBQ states on top of page 9 for diagnostic testing; plain or weight bearing foot xrays are not required to make the diagnosis of flatfoot. 

It is quite clear to me that there has been a deliberate effort by the VBA to continously deny my claim.

[doc25]

14 hours ago, Berta said:

Great Doc- this BVA decision was denied as to higher rating for the veteran's bilateral foot SC condition, but it does contain the ratings for this condition:

.https://www.va.gov/vetapp18/files7/18120752.txt

Make sure the C & P doc is aware of whether you have pronation or supination (sp?) as these can be very painful, even with orthonics.

Pronation is when the arch causes the foot to turn inward, supination means it turns outward.

I am a greeter at my church but always have a chair next to me , if I feel my arch is caving in.

We had a fire drill at my church last Fall and I brought my rollator with me-because they were worried about the disabled people in our congregation. I wanted to see how long it would take a person with a rollator to get out of the exits fast. We all did this  record time. But a woman felt she was going to fall as we  stood outside waiting for the drill to be over. I gave her my rollator to sit on. She has some sort of back condition as well as foot problems.

I  then started to feel like I would fall as well, this condition also  causes balance problems,- but I didnt.

I have no problems weed wacking ,shovelling snow,or doing housework- it is when I stand in one spot too long that makes me uncomfortable.

I have severe pronation- I thought it was just my right foot but the podiatrist said no- it is in both of your feet, the right foot just bothers you more-but it is bilateral.

If it gives you pain , or anything that fits into the ratings make sure the doctor knows this.

Medicare pays for me to get a pedicure every 6 weeks from my Podiatrist, as he can detect any potential calluses  that would be due to my foot problems, to remove them. It feels like I am walking on a cloud when he gets done.  

If you ever get knee, hip, or back pain, it can often be caused by flat feet..and claimed as secondary.

Good Luck , I hope this goes well for you. When they rate it, if we can see the denial  (s ) we can determine how to word the CUE claim, as long as it was at least at 10%, by medical evidence they had, when they denied.

 

If I stand or walk longer than 20 minutes my feet feel like a knife is being stabbed into them. I have severe pronation, as well.

If you go back to my previous post with the C&P exam; the examiner does note "with symptomology and orthotics."

I believe it was rateable for 10% at that time. Now my feet are rateable at 30%. But, that's just my opinion.

Edited February 12, 2019 by doc25

[Berta]

"It is quite clear to me that there has been a deliberate effort by the VBA to continously deny my claim."

Many of us have felt that way with our own claims.

In my situation, over the past 20 plus years they have managed to ignore my most probative evidence.

I succeeded anyhow by using CUE -except for a claim I had at the BVA.

I had enrolled into Miitary school ( AMU) and decided not to fight at the RO level because the BVA can READ.

It was the first time my evidence was actually read by the VA.

I had 3 IMOs ( a freeby and 2 from Dr. Bash) never considered in their denials-

On remand ( they had 3 for the claim and 2 against the claim, they remanded for a cardio opinion and I was thrilled!) But I got a PA opinion instead, rebutted it to the VA, and the BVA awarded with no consideration of it but  , as I stated in the rebuttal, BVA stated  it was too speculative.

When I entrolled into AMU under Chap 35 the VA asked a question on the app as to why I had picked this specific area of study---and I stated I am a civilian volunteer  on a battlefield ( aka the VA claims process) and wanted to apply the  essence of tactical warfare maneuvers , by thinking out of the box, to help veterans win their claims. We MUST be aggressive, call out their errors, and arm our ducks in a row with EVIDENCE!

If they do not read the evidence, we can get them to CUE themselves within the appellate period.

CUE is a 'Frontal Attack', per the BVA, and as a war student I LOVE Frontal Attacks.

 

There are 1681 decisions since 1994 at the BVA regarding "preexisting or "congenital" flat feet.

Here is one of them:

 

"After review of the record, the Board finds that service connection for metatarsalgia of the feet and hallux valgus of the feet are warranted. At the outset, the Board notes that a foot disability was not shown to clearly and unmistakably preexist service; the Veteran is considered sound upon entry onto active duty. 38 U.S.C.A. § 1111. "

"ORDER Service connection for metatarsalgia of the bilateral feet is granted.

Service connection for hallux valgus of the bilateral feet is granted.

REMAND While additional delay is regrettable, the Board finds that an examination by a podiatrist is needed prior to adjudication of the remaining claims. Concerning the flat feet claim, as previously noted, in April 2011, a VA examiner opined that the Veteran's flat feet were a congenital problem not caused or aggravated by service. The examiner did not provide a rationale for his conclusion. Addressing the hammer toes claim, the August 2014 VA examiner opined that second-digit hammer toes can be caused by a hallux valgus deformity but did not opine as to whether the hammer toes were, in fact, caused by the hallux valgus. Therefore, the Veteran should be scheduled for an examination by a podiatrist."

https://www.va.gov/vetapp16/files4/1632025.txt

The case cites 38 USC 1111. Here it is :

 

"For the purposes of section 1110 of this title, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1119, § 311; renumbered § 1111 and amended Pub. L. 102–83, § 5(a), (c)(1), Aug. 6, 1991, 105 Stat. 406.)"

 

https://www.law.cornell.edu/uscode/text/38/1111

This is why C & P exams are done by contracted medical people wth NO expertise in the basis of the claim.

And this is why the VA is able to deny so many claims.

Those vets who get an erroneous denial -due to an unqualified C & P medical person, who can prove they had no pre-existng or congeital condition,

should whip this regulation out at their next C & P exam.

 

 

 

[Berta]

Here is another one:  CUE

CONCLUSIONS OF LAW 1. The February 1985 rating decision contained clear and unmistakable error. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.105, 3.400 (1994). 2. The manifestations of the bilateral flat feet warrant a rating of 30 percent. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.71a, Part 4, Diagnostic Code 5276 (1994).

ORDER A rating of 30 percent for bilateral flat feet is granted. The rating decision dated in February 1985 which denied service connection for bilateral flat feet contained clear and unmistakable error.

https://www.va.gov/vetapp95/files4/9515613.txt

He got ten years of retro.

 

 

[doc25]

37 minutes ago, Berta said:

Here is another one:  CUE

CONCLUSIONS OF LAW 1. The February 1985 rating decision contained clear and unmistakable error. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.105, 3.400 (1994). 2. The manifestations of the bilateral flat feet warrant a rating of 30 percent. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.71a, Part 4, Diagnostic Code 5276 (1994).

ORDER A rating of 30 percent for bilateral flat feet is granted. The rating decision dated in February 1985 which denied service connection for bilateral flat feet contained clear and unmistakable error.

https://www.va.gov/vetapp95/files4/9515613.txt

He got ten years of retro.

 

 

I appreciate all the info you and other forum members have provided.

[JKWilliamsSr]

2 hours ago, doc25 said:

Ok. I will start over.

1. A Navy podiatrist made the initial diagnosis 12/5/2007 of bilateral flat feet (nothing of congenital was noted on the Dr.note.)

2. June 2007 a PA conducted the exit c&p exam. Only rationale he gave was that I was given orthotics then made the "congenital bilateral flat feet with symptomology".

3. In 2016, a VA podiatrist made the diagnosis of bilateral flat feet. His note did not mention anything about congenital flat feet. I am still being treated by the VA podiatrist.

4. Yes. Xrays were done in-service and through the VA. The bone clearly has an arch that was developed on the xray but when I stand my arches (muscles,tendons)collapse and my feet pronate. This is called Aquired flat feet.

If I had congenital flat feet in my entrance exam (I was 18 upon enlistment) I would have had xrays done to show the bone was not fully developed into an arch or there had been a previous injury; and if osteoarthritis was present, that's all an xray would show. 

Besides, the Flat foot DBQ states on top of page 9 for diagnostic testing; plain or weight bearing foot xrays are not required to make the diagnosis of flatfoot. 

It is quite clear to me that there has been a deliberate effort by the VBA to continously deny my claim.

If I was to fathom a guess I would have to say that the examiner ignored the evidence before them.   The reason for that would be unknown because the same thing happened to me also.  They probably skimmed through the records without actually reading.   The thing that stands out the most is that you have diagnosis from a podiatrist.  That alone should have been enough for the rater.  There is no way anyone can justify taking the diagnosis of Physician Assistant over that of an actual Podiatrist.  You have one that is a fully qualified doctor that is a specialist in the field that you are filing your claim for and one that is not.

You denial is based on the opinion of an unqualified examiner and is clearly a CUE imo. (already pointed bout by Berta....I am just piggy backing  )

Even if you are successful in your claim this time I think you should still file an appeal for an effective date of your first claim based on a CUE. (that is if they don't automatically grant it)   Having a diagnosis from a Podiatrist is the equivalence of striking gold IMO.  When the evidence is properly weighed the law requires that if is in the favor of the veteran.  That never seems to be the case at the local level though.  They seem to follow their own rules and often ignore the requirements set forth before them. 

The key word here is "equipoise"  which is simply described as if there are two pieces of evidence with differing opinions made by qualified individuals the decision must be made in favor of the veteran.  

Edited February 12, 2019 by JKWilliamsSr
added info.