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doc25

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

Question

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?

 

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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.

 

 

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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.

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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 by JKWilliamsSr
added info.

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Doc25 here is something that may help from an appeal standpoint. 

"In making findings of fact, the BVA is required to consider and discuss evidence on both sides of the issue and to reconcile any conflicts among such evidence or alternatively provide explanation of reasons for rejecting evidence favorable to the claimant or determining that such evidence is of little weight or probative value. Quiamco v. Brown, 6 Vet.App. 304 (1994). "

Given the fact that you have Podiatrist diagnosis that is completely contradictory to that of your C&P the VA (or more accurately BVA) will have to address this..  I believe this is actual case law so they just can't say we take this diagnosis over that one without an explanation and in this case I can't see any argument where you would take the diagnosis of a Physician Assistant over that of a Podiatrist.

Here is another:

BVA cannot reject evidence favorable to the claimant without providing adequate reasons and bases for its decision. Patton v. West, 12 Vet.App. 272 (1999).

Here is a law that covers the equipoise rule:

A claimant seeking VA benefits enjoys the "benefit of the doubt rule," or alternatively an "equality of the evidence" standard, as opposed to the more common preponderance of the evidence standard applied in most civil contexts. This standard can be thought of as the burden of persuasion, in that evidence must rise to a state of equipoise for the claimant to win. 38 U.S.C. § 5107(b). Skoczen v. Shinseki, 564 F.3d 1319 (2009). 38 U.S.C. § 5107(b).

Edited by JKWilliamsSr
additional info

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