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Can I add Additional Denial Rebuttable While In NOD?

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SgtE5

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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
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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
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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,,"

There is NO negative medical opinion. This situation is beyond equipoise. Look up :"equipoise". There is only a favorable medical opinion. A VA- requested favorable opinion. There is no negative opinion.

Nexus established plus favorable C & P exam equals Award.

The VA chose to ignore the C & P exam completely . That is a prime facie CUE under 38 CFR 4.6.

Sgt E5:

https://www.va.gov/vetapp18/files3/1817506.txt

This BVA decision has rating info for the bilateral patella syndrome ( femoral) - I dont know if yours is femoral or not- but this should be claimed , with copy of the C & P exam as well- tell them in the claim that you have filed a CUE on the recent decision and that the examiner diagnosed this issue , as well, based on your STRs.

I did not see much in the exam report as to how to rate the issues, but foot,ankle, ,knee, hips, and back issues can all stem from one main  lower extremity disability. I know that because I have a biomechanical disability- severe pronation, which can in time affect knees, ankles,hips and back-

I am a civilian but the condition I have would be rated at 40-50% if I was a veteran.

A vet I posted about on the older pre 2005 board started out with severe  flat feet and a small rating, but in time which grew to 100 %  in the BVA award, as his condition had affected every part of his lower biomechanical body structure.

 

The bilateral knee problem ( both knees) could easily warrant a higher rating than just the ankle, so that is something to keep in mind if the VA low balls your claim, when they fix their legal error.

At some point you might need an independent medical opinion, if they do low ball your rating, but you sure dont need one yet. You have what you need.   

A VA favorable medical report that establishes the nexus and an additional diagnosis to be claimed.

 

 

 

 

 

 

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You posted:

Quote

I was denied with a reason stating that both were acute problems. 

Here is the deal.  Yes, you need the Caluza elements.  Lets assume you have those.  Do you understand what "acute" means?  Here is what it means:

https://www.medicinenet.com/script/main/art.asp?articlekey=2133

Notice its "of short duration".  VA does not compensate us for acute problems.  They pay us for only "chronic" problems, of extended duration.  

If you sprain your ankle and it heals up in a week or two, you dont get paid for it. 

However, if you have chronic foot problems, that affect your everyday life, that is different.  

Your IMO/evidence needs to refute the "acute" term.  You can read it, if the examiner says its acute, this means the doc says it will heal up in a few days or weeks, and you wont get paid.

You need for it to be "chronic"...(of extended duration).  The VA does not pay you for a sprained ankle that heals up in 2 weeks.  

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Broncovet =please read the download of the actual Exam.

It says 'Her rationale:' meaning the examiner.

"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."

Per the C & P  Exam results posted above in the download-------------------

 

I will try to find more rating info but that is a fairly recent decision.

I want to see the regulation , amendment to Title 38 ,or sudden new M21-1MR  change or VA Fast Letter etc etc  that says

if a vet gets a favorable C & P exam, and their nexus is fully established, than, at that point ,they will need an IMO.....

(posted here from anyone who has documented legal evidence of this new 

addition to established VA case law.)

 

 

Edited by Berta
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