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Can I add Additional Denial Rebuttable While In NOD?


Posted (edited)

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?

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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Did ANY of your doctor's say it was acute?  Did you read their exams?  Did you look in the "evidence" section?  What evidence did they cite that it was acute??  

If you have evidence in your file that its chronic, then VA probably lost or shredded your evidence , or did not read it.  

The VA loves to lose, shred, or ignore our evidence.  Do you have your cfile??  If you dont, you dont know what evidence the VA has, so you need to order your cfile.  Its not enough your condition is chronic...it must be documented its chronic by a doctor and that evidence has to be in your cfile.  

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I have a copy of my SMR's and just recieved my c-file. No, the doctors while I was in the military did not diagnose acute. They didn't diagnose chronic either. Chronic comes from my VA medical records. I've been complaining since I entered the system in 2002. The acute came from the denial decision and they didn't didn't recite a specific evidence in their decison of acute.

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You can establish "chronicity" by going back to the doctor reporting the symptoms over time.  You have your cfile, I do not.  I suggest you check to see if/when you reported these symptoms that you applied for prior to service, during service, and post service.  

Now, chronicity is established by SYMPTOMS not treatment.  The doctor can change his treatment..he can try pills, surgury, physical therapy, etc.  What you need to do is establish continuity or chronicity.  Again, the VA does not compensate us for a disorder that is acute, and resolves on its own, or even with treatment.  They compensate us for conditions which affect our ability to work on a daily basis, so, if they denied you because they alleged your condition was "acute", then you can reopen with new evidence via 38 cfr 3.156 b or 38 cfr 3.156 c.  This evidence would need to establish .a history of your symptoms of the disorder, and not "just" an acute sprain, for example, that got better.  

You know your medical records much better than I do.  Remember, tho, its all about documentation.  If you lack documentation that your condition was chronic, then VA will presume your condtion has resolved itself.  That happens quite frequently..we get a backache and it goes away in a few days or weeks.   If it comes back, again and again, and becomes chronic, then you need documentation of same for disability.  

There are 3 likely posibilities:

1.  You had evidence of chronicity and VA lost this evidence.  Submit it over again.

2.  You had evidence of chronicity and the VA decsion maker never read it.  Appeal, and show the evidence of chronicity.  

3.  You had a chronic condition, but it was not documented.  In this case you will likely need an IMO to review your records and say, "Gee..he was treated for this in 1997,98, 2001,2008, 2016, and 2019...this is a chronic condition.  "   Dont forget about the Caluza elements, but dont neglect chronicity, especially when thats why they told you it was denied.  You need to medically refute their reasons and bases:


    "While the decision date 11-18-2018 stated the condition was denied due to being acute, the Veteran has enclosed 8 medical exams demonstrating this condition is, in fact, chronic.  See exams from 1996 (june 8), 1999 (July 5), 2003 (April 3), 2005 June 16, etc.etc. which establish this is a chronic condition."

      You refute Va's statements WITH EVIDENCE to the contrary.  

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I apologise to the new member here, Sgt E5, and to all those out there who have read this 6 page long thread 

because members here are opining on this claim without even taking the time to read the Evidence List or the download of the actual C & Ps, I believe they are on page 4 .....

I think it says they are not' exams' but they in fact are considered C & P 'exams' for VA claims purposes...done by LHI.

It says only 4 downloads- and I read it all 4 times  and again today so maybe it says 5. So one else here apparently is willing to read your evidence  and thus their replies here are  ABSURD.( I think 2 of the repliers here are hadit "moderators"- figure that.

We -you and I- have been drawn into a  negative situation here because no one else would read the downloads ,

which is the exact reason the VA denies MANY VALID claims.

The VA - as MANY OF US know is unwilling to read our evidence- and obviously so are some of the members here- yet they take the time to make comments that are not appropriate to the facts of the case.

I will contact Tbird about this.

Ebenefits years ago stated I had 53 historic issues with the VA.

At least 20 or more of those historic issues involved the fact that the VA completely ignored the most probative evidence I had.I have been successful with every CUE I filed, and that was the only way to get them to rectify their violations of 38 CFR 4.6 and force them ro read my evidence.

You and I  are being drawn into some odd argument over established VA case law and it is very embarassing to me to know how many members and guests have read this whole thread, which appears to be an effort to breeze over my  advice  ( I have been a veteran's advocate for over 30 years) and show no interest in the evidence you have and the supporting C & P results from LHI. The denial and evidence list clearly shows they had treatment records etc, yet they ignored those C & P exams, in order to deny.

I have an early church obligation and will post whatever I can learn on the patella syndrome, BPS when I get back home-later this afternoon.

I think maybe that would be the prime disability you have , as causing the ankle problems as secondary.

You certainly have a good valid claim,  supporting C & P exams, and your SMRs established the nexus.

Unfortunately you are not getting the support you need from others here.

They are taking the time to opine, but - like the VA itself-they have not read the entire thread or your downloads.

This has happened here before. I am sick and tired of it.













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Before I forget- this article from Hill and Ponton ( Matt Hill is a member here and they are superb veteran lawyers)


details how they should rate knee disabilities, to make sure they rate them correctly.

And this other article from their site mentiions pain- if you have pain from this condition, you should claim it- the article refers to the Saunders decision. 


The regulations for ratable pain had not been determined yet but it pays to claim pain if you have it -from the Bilateral Patella syndrome.

Ms. Saunders had the same condition you have, while in the military.

Her Federal  Circuit decision overruled the CAVC denial. Saunders V Wilkie is available here at hadit. It made BIG news-but we have no regulations yet but still "pain" should be claimed, for any disability caused by service.


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