Can I add Additional Denial Rebuttable While In NOD?

[SgtE5]

Filed for ankle and knee problems that both are documented in my SMR. I was denied with a reason stating that both were acute problems. I filed a NOD. I requested my c-file, received it on Monday. Had a c&p from a contracted VA doctor so was not in my medical file as it was a contractor. The c&p doctor that did the ankle and knee exam opined the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. Her rationale: Veteran had no issues related to the claimed CONDITION prior to military service. Onset of the condition was during service, documented in the Service Medical Records. There is evidence of current, chronic and continuous treatment and care. A nexus has been established.

I don't understand why I was denied if the c&p doctor opined claimed conditions was related to service and I have met all 3 elements.

Even though her opinion is in the record, can I add a statment arguing the c&p doctor provided nexus? Or just wait for the SOC as I know it will be denied again and argure to the BVA?

SECTION III – MEDICAL OPINION FOR DIRECT SERVICE CONNECTION
Choose the statement that most closely approximates the etiology of this claimed condition.
X 3a. The claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury,
event, or illness.
3b. The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event,
or illness.
3c. Provide rationale:
Veteran had no issues related to the claimed CONDITION prior to military service. Onset of the condition was during service, documented in the
Service Medical Records. There is evidence of current, chronic and continuous treatment and care. A nexus has been established.

Edited March 13, 2019 by SgtE5

[Berta]

Can you scan and attach the VA denial letter, to include their rational and the Evidence list they used.

This might be ripe for a CUE ASAP. I can write the CUE for you if I see their denial.

"I don't understand why I was denied if the c&p doctor opined claimed conditions was related to service and I have met all 3 elements."

Either 

 1, because the VA hires people who cannot read.   

2. or because their contractors are getting too many complaints, 

3. or because their contractors are supporting too many awards,

4. or because the VA committed a Clear and Unmistakable error.

Please cover your C file #, name, address prior to scanning and attaching the denial here.

[Berta]

My last denial was reversed in 3 weeks after I filed CUE the day after I got it.

Dont let anyone tell you a CUE cannot be filed within the appeal period.

The Modernization Act holds 2 points I wrote to former Secretary Secretary Shulkin about.

One of those points , with evidence, regarded a VARO review for any CUE in every decision before it gets mailed out.

The Secretary's office called me -that is how I know they used 2 of my suggestions. I got a nice card from POTUS as well.

However, the Modernization Act has no quarantees that every decision will be reviewed this way.

We claimants have to know what a CUE is. I have filed and won many CUEs -with 3 now pending.

I have filed CUE on CUEs that were awarded.

A CUE in any decision the VA sends me, is what I LIVE for!!!!

A frontal attack on their stupidity.

This is the craps-----

if they get a positive C & P result, that should award the claim,

I guess they wont consider it as evidence.???? 

BS  to that.  !!!!!!!!!!!!!!!

I think 100% they comitted CUE, at this point,  BUT that is based on what you told us-

 

it is reading their decision, rationale,  and the evidence list that will determine if the CUE exists.

Cover C file # , name prior to scanning and attaching it here.

 

 

 

Edited March 13, 2019 by Berta
added more

[SgtE5]

Thanks for the reply Berta. Here is a copy and paste from the denial. Hope this works for you.

EVIDENCE
VA Form 21-526EZ Application for Disability Compensation and Related Compensation
Benefits, May 16, 2018
VA letter dated May 17, 2018
VA letter dated May 22, 2018
VA Form 21-526EZ Application for Disability Compensation and Related Compensation
Benefits, May 22, 2018
VA Form 21-4138, Statement in Support of Claim, received May 30, 2018
VA letter dated May 30, 2018
VA Form 21-0966, Intent To File A Claim For Compensation and/or Pension, or Survivors
Pension and/or DIC, received June 21, 2018
VA letter dated June 21, 2018
VAMC (Veterans Affairs Medical Center) treatment records, Tampa VAMC, from October
10, 2002 through June 25, 2018
VAMC (Veterans Affairs Medical Center) treatment records, Atlanta VAMC, from May 26,
2014
VAMC (Veterans Affairs Medical Center) treatment records, Gainesville VAMC, from
March 9, 2013
DD Form 214, Certificate of Release or Discharge from Active Duty, and DD Form 215,
Correction to DD Form 214, from June 10, 1988 through June 9, 1992, received June 6,
2015, March 4, 2016, August 12, 2016, December 16, 2016, December 27, 2016, and May
22, 2018

Service connection for left ankle condition.
Service connection may be granted for a disability which began in military service or was caused
by some event or experience in service.

Service connection for left ankle condition is denied since this condition neither occurred in nor
was caused by service. We did not find a link between your medical condition and military
service. While your service treatment records reflect complaints, treatment, or a diagnosis similar
to that claimed, the medical evidence supports the conclusion that a persistent disability was not
present in service. The condition in service was considered acute and transitory, and there is no
mention or evidence of chronicity. Your separation exam from service is silent for any left ankle
condition. We did not find a link between your claimed left ankle condition and your active duty
military service. Furthermore, the evidence does not show that your disease developed to a
compensable degree within the specified time period after release from service to qualify for the
presumption of service connection. Specifically, there is no evidence that your left ankle
condition manifested to a compensable degree within one year of your discharge from active
duty.

Service connection for left knee condition.
Service connection may be granted for a disability which began in military service or was caused
by some event or experience in service.      
Service connection for left knee condition is denied since this condition neither occurred in nor
was caused by service. We did not find a link between your medical condition and military
service. While your service treatment records reflect complaints, treatment, or a diagnosis similar
to that claimed, the medical evidence supports the conclusion that a persistent disability was not
present in service. The condition in service was considered acute and transitory, and there is no
mention or evidence of chronicity. Your separation exam from service is silent for any left knee
condition. We did not find a link between your claimed left knee condition and your active duty
military service. Furthermore, the evidence does not show that your disease developed to a
compensable degree within the specified time period after release from service to qualify for the
presumption of service connection. Specifically, there is no evidence that your left knee
condition manifested to a compensable degree within one year of your discharge from active
duty.

Service connection for right knee condition.
Service connection may be granted for a disability which began in military service or was caused
by some event or experience in service.
Service connection for right knee condition is denied since this condition neither occurred in nor
was caused by service. We did not find a link between your medical condition and military
service. While your service treatment records reflect complaints, treatment, or a diagnosis similar
to that claimed, the medical evidence supports the conclusion that a persistent disability was not
present in service. The condition in service was considered acute and transitory, and there is no
mention or evidence of chronicity. Your separation exam from service is silent for any right knee
condition. We did not find a link between your claimed right knee condition and your active duty
military service. Furthermore, the evidence does not show that your disease developed to a
compensable degree within the specified time period after release from service to qualify for the
presumption of service connection. Specifically, there is no evidence that your right knee
condition manifested to a compensable degree within one year of your discharge from active
duty.

[Berta]

Do I understand the C & P was done only one one knee but you claimed both?

Thanks, this will be easy to write CUE for, but I am concerned if they should have examined both knees claimed , but didnt. That too would be part of the CUE .

I do not see anything in th Evidence list that reveals they even had the C & P exam.

This is a new one for me. VA is usually very quick to find a C & P exam that would deny the claim.

Will post CUE claim hopefully within a half hour for you.

 

[Berta]

You can tweek this and I hope others chime in----I will read it over as soon as I can get back on line- have a busy day-hope I didnt overlook anything-and I suugest not only sending this to the Intake Ceneter but also filing this as an IRIS complaint.(which I have done in the past as well as sending to my VARO)

 

(Use Evidence Intake Center address) Date ( I always use Priority Mail and always get a USPS tracking slip)

 

 

Attention to: ( put here the alphanumeric that appears in the right top of the denial)

Put name of VARO here                                                           Put Re: C file number here

This is a claim of CUE -Clear and Unmistakable Error in your enclosed decision of (date of decision)( I suggest to enclose what you posted here, as copy of the decision )being filed under the auspices of 38 USC 5109,et al.

 

The decision violates 38 CFR 4.6 thus:

§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

https://www.law.cornell.edu/cfr/text/38/4.6

 

The errors are the fact that on ( date ) I had the enclosed C & P exam done at ( where )(enclose C & P exam)

which fully considered my SMRs and evidence that warranted an award.

 

I had claimed disability in both knees, yet the examiner might have been instructed to only examine one knee and one ankle.

 

Obviously this erroneous denial, based on the fact that 38 CFR 4.6 was violated and the actual C & P exam results were never considered, has had a detrimental outcome to me.

 

38 CFR 4.6 is a well established tenet of basic VA case law, and the prime “element” of my claim -the actual C & P exam-was never considered.

 

I suggest that you correct this clear and unmistakable error immediately.

 

                                                                                                                   Respectfully,

 

Enclosures:

Exhibit A    Denial :     pages

Exhibit B    C & P exam:   pages.

Total pages enclosed :   

 

Also make sure your C file Number, name, address are on everything you send to them.

                                                                                                                      ( sign here)

( I always state Exhibits as A, B, and C and actual use Exhibit stickers that lawyers use. You dont have to do it that way- You can just Number the enclosed if you want.

I always also make sure the pages are counted and totalled. 

I donate a small amount of money every year to a charity , because they send me name, address stickers that means I dont have to write my name on everything, just my C file #, and the name address sticker.

CUE:legal error

         proof of legal error

        proof of detrimental outcome........I think I covered it all.......

 

 

 

 

 

[Berta]

PS-if there is an alphanumeric code on the decision- that identifies the VARO and the last idiot ( oops VA employee) who handled your claim)