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Can I add Additional Denial Rebuttable While In NOD?


SgtE5

Question

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 by SgtE5 (see edit history)
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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.

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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 by Berta
added more (see edit history)
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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.

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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.

 

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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.......

 

 

 

 

 

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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)

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Thanks again Berta. The c&p doctor examined both my knee's. The right one was worse in all the tests. She only examined my left ankle as that is what I claimed. Not both. I will try and edit her opinon and attach them to another post.

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If you have NOD questions I would recommend asknod's post 

As far as I know you can add to an NOD, I know you can with a BVA appeal.

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Your problem here is that the c&p examiner is not the VA claims examiner. Please note in 3a on both exams that the examiner said yes it more likely than less likely. With that said, a c&p examiner is not the last word. The rater has an in-house doctor/ARNP/ RN at the RO who reviews everything and makes that decision. They do not rely on what your c&p examiner says as to etiology.

Many Vets think a DBQ is the gold standard of a claim. In fact, I'm getting VA letters for some of my clients listing a download for the proper DBQ for the condition and a suggestion to take it to the Vet's private doctor, if any, to be filled out. A DBQ essentially lists where you are right now like a snapshot (photo). The c&p examiner is just a medical employee who records what you say and what s/he sees or discovers. In that sense, a DBQ is useless as an IMO.

When I obtain an IMO for my clients, it has far more info and discusses history as well as peer-reviewed articles about the problems my clients suffer. A DBQ is like an office visit. It doesn't go into history and the examiner is not allowed to diagnose service connection in spite of what you see in Box 3a. I refuse to use or depend on DBQs. Attached below is what I use. Dr. Rivero's Curriculum Vitae (CV) is four or five pages long, too and discusses her qualifications for opining on the client's condition. She views the exact same set of records (VBMS, STRs, current med recs and the c-file. This is where 99% of you lose. If your IMO doctor doesn't specifically state they reviewed those records I mention, you're going to lose.

Remember, VA invented DBQs. They could just as easily be called CYA forms.

And that's all I'm going to say about that.capture-was-here-e1535647298505.jpg.af98b2c111e07f43837279034ce15731.jpg

 

 

Humphrey IMO redacted.pdf

Edited by asknod (see edit history)
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I think the issue here is acute vs chronic...

Not that I agree with, but what they are saying is your issues resolved while in service.

I had 3 or 4 issues that where denied because the resolved while in service and or have not residual effects post service.

Every issue that I have that is chronic is golden.

You need someone to opine that what you are claiming is a chronic condition related to you service.

FWIW,

Hamslice

 

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Left ankle LHI opinion – GOLDEN!!!

Make sure you also claim the bilateral patella syndrome that the LHI examiner found in your STRs.!!!

 

The Knee C & P opinion is also GOLDEN except for one thing- I do not see what knee they are referring to.

The CUE I wrote can be tweeked, to make sure the claimed disabilities are exactly wht you claimed and by all means, claim the bilateral patella syndrome, but fdo that as separate from the CUE.

I will l try to find the bilateral patella syndrome ratings and will post here.

Your nexus was established by the examiner- she actually looked over your STRs.

And good for you- you have some evidence with you at the exam.

 

 

 

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I notice something here more often than I like-

My time is limited these days by an issue that can save the  lives of veterans.

It regards a bill introduced in the Senate.

I cannot benefit from it at all but it is one of many veteran issues I work on, off this web site.I have plenty of evidence to support the Bill with- need to send it all to the Senator who introduced the Bill.

So I guess I am getting pretty poed by replies that reveal the member does not have a clue.

I take the time to read and re read downloads from vets Very Carefully- the examiner even mentioned another issue the veteran has-that can be a valid claim.

People are commenting on downloads, C & Ps , decisions, AO regulatuions , etc etc  here -without even taking to time to read them.

I feel Iam wasting my own time by even doing research and adding links to so many of my replies.

Perhaps the opiners here should read the downloads again.

This was a contracted C & P exam, this was not a DBQ.

Sgt E5-------

This CUE is a Beauty- and if you file it through IRIS, as well as send it through the Intake Center it should go faster than you think-

It can be tweeked for the exact info as to what you claimed....especially what knee the C & P was done on.

 

I guess I am just tired of the repitition I have to do here sometimes, 

and I am fed up with cmments that show the member did not even read what the veteran scanned and posted here.

This CUE is a beauty.

-----------------------------------------------------------------------------

Maybe the VA will send some of you to a C & P exam and the exam is flawless and probative, and the examiner even mentions another disability you have, and supports the inservice nexus as well---for both issues, because they read your SMRs (STRS)

and then the VA will DENY your claim, because they violated 38 CFR 4.6 and never even read the C & P you went to, and that the VA paid for, which supported your claim.

That is the situation here in this thread.

This vet , Sgt E 5, should NOT have to obtain a costly IMO/IME because of the VA's prime facie CUE.

 

 

We need to be far more literate than the people in the VA.

Luckily I barely have time these days to even read more than three unanswered questions-a day- 

I would probably get really pissed at some of the replies.

 

 

 

 

 

 

Edited by Berta (see edit history)
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1 hour ago, asknod said:

Your problem here is that the c&p examiner is not the VA claims examiner. Please note in 3a on both exams that the examiner said yes it more likely than less likely. With that said, a c&p examiner is not the last word. The rater has an in-house doctor/ARNP/ RN at the RO who reviews everything and makes that decision. They do not rely on what your c&p examiner says as to etiology.

Many Vets think a DBQ is the gold standard of a claim. In fact, I'm getting VA letters for some of my clients listing a download for the proper DBQ for the condition and a suggestion to take it to the Vet's private doctor, if any, to be filled out. A DBQ essentially lists where you are right now like a snapshot (photo). The c&p examiner is just a medical employee who records what you say and what s/he sees or discovers. In that sense, a DBQ is useless as an IMO.

When I obtain an IMO for my clients, it has far more info and discusses history as well as peer-reviewed articles about the problems my clients suffer. A DBQ is like an office visit. It doesn't go into history and the examiner is not allowed to diagnose service connection in spite of what you see in Box 3a. I refuse to use or depend on DBQs. Attached below is what I use. Dr. Rivero's Curriculum Vitae (CV) is four or five pages long, too and discusses her qualifications for opining on the client's condition. She views the exact same set of records (VBMS, STRs, current med recs and the c-file. This is where 99% of you lose. If your IMO doctor doesn't specifically state they reviewed those records I mention, you're going to lose.

Remember, VA invented DBQs. They could just as easily be called CYA forms.

And that's all I'm going to say about that.capture-was-here-e1535647298505.jpg.af98b2c111e07f43837279034ce15731.jpg

 

 

Humphrey IMO redacted.pdf 400.17 kB · 2 downloads

Don't want to disagree with Asknod here as he is more of an expert on these situations than I, but the c&p that was done was a contractor that they sent me too. It was not a IMO.

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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

Roger, sir. Your c&p was not an IMO ... or an IME... and certainly not a nexus letter. It was an exam (C&P) to see what's wrong with you. Just because the doctor/NP/RN/ ARNP/ PA/PA-C says it's service connected doesn't make it so. I showed you what you need-a real IMO from a doctor- not the opinion of a bedpan changer.

VA says you need three things to win. They supplied #3- your IMO-because you did not. Unfortunately, they are all usually a dry hole. In order to win your claim, you must get a truly independent IMO-not one from a subcontracted outfit like VES or QTC. They work for VA and will say whatever VA tells them to. Remember Judas and the thirty pieces of silver. 

Best of luck, sir.

Edited by asknod (see edit history)
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I always tell vets that need an IMO get one from a specialist in the condition that is in question. and let the specialist know how to use the words is like as not'' or what the VA likes things worded.

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In a case where there's 2 Dr with different opinions  then this is why its always best to use a specialist , if your claim goes into  equipoise  the specialist usually wins...over just a MD/PA  ect,,ect,,

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So you guys are saying that any veteran who gets a favorable C & P exam and also establishes their nexus , HAS to Get an IMO? ????????

Hey- there are over 1 million  1/2 hits here every year ,and you want to newbies and guests to think that is true?

Where is the case law to support your advice-

if this is a new criteria in 38 USC/CFR/Mr1 -1MR       let's alert the media!!!!!!

and how about all those vets and widows like me who succeed at the Regional level- based on our medical evidence who never got an IMO? We have plenty of them here, whose award was based solely on a positive C & P exam.

 

Does that mean the VA will propose to reduce us ALL  who had positive C & P exams , because we didn't need an IMO- and because we had an established nexus as well as a bonafide positive C & P exam?

An IM0 ( it would have to be an IME in this case,) would only be needed if the C & P exam was lousy and/or did not confirm the nexus- because the lousy C & P examiner did not look over the SMRs. (STRS) 

But this is a valid CUE- it has nothing to do with an IMO/or IME- the medical evidence has been established.

Sgt E5 -your evidence is solid. They made a Legal Error.

If they do not rate you properly, maybe that would need an IME, down the road - maybe ---but at this point, they (VA) made a CUE in their denial and if that is not corrected, it will doom the claim.

I commend you Sgt- you knew this was a legally incorrect decision. We need you here as an advocate like me.

Unfortunately too many vets out there never even know when VA has committed a CUE to their detriment, a CUE like this one ,that can doom a claim forever.

I will look for the bilateral patella syndrome ratings tomorrow and post them here and then I will take a break from hadit and let the "experts" handle the CUE claims and the AO claims, and the survivor's claims,etc etc.

Maybe that is the hidden  agenda here anyhow-

But I will be here looking for the  established VA case law that supports the IMO comments.

 

 

 

 

 

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"In a case where there's 2 Dr with different opinions  then this is why its always best to use a specialist , if your claim goes into  equipoise  the specialist usually wins...over just a MD/PA  ect,,ect,,"

 

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I guess where I am confused is why send a vet to a c&p and then ignore their opinion. Ignore meaning not in the evidence list and deny. Isn't that what a c&p is for? 1 to get an examnition and 2 an opinion as to nexus.

Edited by SgtE5 (see edit history)
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