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

[SgtE5]

Alright, here is a draft of my cue. I'll add address and such later.

March 15, 2019

 

 

To: St. Petersburg VA Regional Office

This is a claim of CUE, Clear and Unmistakable Error, under provisions of 38 USC 5109(a).

I respectfully request the VA to call a clear and unmistakable error on part of the June 28, 2018 decision from the St. Petersburg, FL. VARO and to correct it.

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.

In the Decision Letter dated June 28, 2018 (enclosure #1), I was denied service-connection for left ankle condition and bilateral knee condition.

I was given a COMPENSATION AND PENSION EXAM on May 30^th, 2018 by LHI - Tampa, FL. (A contracted by the VA Compensation and Pension Exam specialist in the field of DMA Musculoskeletal Examination) (enclosure #2))

The evidenced listing page of the denial (enclosure #1) shows evidence in record except the Compensation and Pension Exam that was performed for left ankle condition and bilateral knee condition.

I received my Decision letter dated June 28^th, 2018 with the denial of claimed conditions stating in part that:

Left Ankle:

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.

Right Knee:

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.

Left Knee:

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.

On the Compensation and Pension Exam Inquiry dated May 30^th, 2018 (enclosure #2) the examiner opined for both conditions:

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.

 

Which is a favorable opinion for me.

 

Her rationale for left ankle condition:

 

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. Veteran was seen for left ankle injury as documented in STRs. In VA records veteran reported "generalized pain in multiple joints" at many visits.

Her rationale for bilateral knee condition:

 

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. There are multiple encounters for "multiple joint pain generalized " at VA after service. During service STRS indicate treatment for bilateral patellofemoral pain syndrome.

 

Clearly a link has been established which contradicts the decision.

 

The VA's failure to consider and evaluate this evidence that the VA had in their possession when read in a light most favorable to the Veteran, manifestly altered the outcome of the decision referred to above.

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.

 

Respectively submitted,

 

 

[FormerMember]

Allow me to address these one by one. Ms. Berta said in post #16     <<<This was a contracted C & P exam, this was not a DBQ. >>>  Six hours ago...<<<This veteran has a valid DBQ written from a contractor that complies with what VA wants.>>> In law, we call this post hoc rationalization. Either it's a DBQ or it isn't. If folks here continue to insist it's a "medical opinion", my advice would be to tune it up dramatically. LHI works for VA so they are not going to be your huckleberry on any tune up.

#18 Wednesday 1655Hrs <<<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? ????????>>>> Please never put words in my mouth. Please review my posts and tell me where I declared you cannot win without an IMO. At best, I might have implied you cannot LOSE with an independent IMO-well, unless it involves alien abduction. My second post in this thread did say you need a good IMO to win. zzzin my opinion, SgtE5 doesn't have one.  I suspect this can be won via CUE but I can see it going to appeal and VA ordering up yet another IMO from somewhere. The denial stated the old saw 'acute and resolved'. You now have to overcome that. Are you going to cling to the LHI "IMO" as your proof? That isn't CUE. A difference of opinion on how the evidence was evaluated can never rise to the level of CUE. I deal in law-not emotions and violins. Russell v. Derwinski was fairly explicit---"The claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." 

#22 <<<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.>>> I respectfully disagree with my colleague. The VA denied the claim. In order to do that they had to have an "opinion" contrary to the LHI doctor's positive opinion. In law, we call that "reasons and bases". For the enumerated reasons Sgt.E5 already shared with us in an earlier post (which I did read), VA denied him.That is called a negative opinion- i.e. "less likely rather than more likely". SgtE5's denial did not say "We denied because we didn't like the LHI opinion".  

 

<<<The DBQ for service connection for PTSD is not available to the public, but you can view the Review PTSD DBQ here in order to get a general idea of what a DBQ entails).">>>  Please see the attached "super-duper secret PTSD DBQ" that no one will ever see below. There is no mystery here. The PTSD DBQ is not "secret". If Hill and Ponton can't find one, it indicates to me that H&P a) didn't try very hard to find one or: b) they do not have anyone at H&P with VBMS access. I am no genie and have no secret powers. Wait! I have the Power of Attorney! Why is it I can see this mythical DBQ? Folks, this is not rocket science. I don't even have a college degree- or a Juris Doctorate for that matter. 

<<<you are saying the law firm of Hill and Ponton, and other vet lawyers are wrong.>>> Berta, what I am saying is there are two different metrics at play here. If you choose to ignore the thrust of what I have been saying in this thread, I can't help you understand it. My law practice is aimed at getting claims/appeals done in the shortest amount of time and keeping my Vet's money in his own pocket. H&P's law practice employs many, many attys. Their job is to produce money for-guess who- Hill and Ponton. They have no incentive or the time to raise a ruckus and get things done any faster than VA's pedantic pace. I know Matt Hill quite well. I met him in San Antonio in 2017. I'll probably see him next week in Nashville. The point is I have no interest in making money. What I do have is an abiding interest in getting a win as soon as possible for my clients. I do not fault H&P, CCK or any of the other big outfits for their legal strategy but it sure isn't founded on a "gitterdone now" mentality.  

I offer advice here based on what I encounter. Since I am rather abrasive, I call up DROs wherever they work and confront them when they screw up as they did in Sgt.E5's case. Sometimes I succeed in changing their minds, sometimes I don't. However, I never have to shuck and jive to try to change anyone's mind when I present one of my IMOs.  

Knock on wood but I have yet to lose a claim or appeal. It sure is not because I'm stupid or refuse to subscribe to the way H&P thinks or operates. It is not because I am doing something no one else knows how to do. Call Matt Hill up and ask him how many claims he's lost or how many his firm lost last year. Never mind. I'll ask him next week myself.  VA invented DBQs. The early ones didn't even have a box to opine on etiology. USB Hickey told Congress in 2014 that oversight would be corrected "just as soon as we use  up all the old forms and came out with new ones". Hello? The forms are electronic...

DBQs were created (by VA) to speed up FDCs. Did more Vets begin winning after the introduction of DBQs? Did it revolutionize the ratings procedure? Did accuracy go up?   Hadit and asknod would be out of business if the VA suddenly started doing this correctly. In fact, there would be no backlog if this worked as advertised. I do this 12 hrs a day. Other law dogs send me tips and/or ask for them. I give advice here even though I have no time to do so. I subscribe to the "leave no Vet behind" theorem. 

I would pray it never happened to any of you that you ever had to leave your fellow airmen behind and watch them shot through the head- executed- then perhaps you will understand why Theresa's tag line is so poignant to me. My devotion to helping you-all of you- is called paying it forward. I would never offer advice I would not follow myself. If Matt Hill and company, or Chris Attig, or any other outfit offers advice or a one-size-fits-all, I suggest you review it carefully. VA law is not difficult to interpret. Getting VA to interpret it correctly is the problem. Everyone has their pet solutions on how to do it-including VA attorneys.  

 Perhaps it's time to take a vacation from this lunacy to avoid even more controversy.  I certainly take no joy in arguing. Something a lot of contributors forget when they write here- this isn't about us- it's about you-the Vets we hope to help. If no one reads the proffered info, then nothing offered will be helpful. I did read and download all the info SgtE5 presented. I have offered my two cents on how I would go about winning it. I would be interested if SgtE5 returns and tells us how his claim/appeal turned out if for no other reason than to learn from it. Nevertheless, I stand by my advice.

 

 

Redacted Super-Secret PTSD DBQ.pdf

Edited March 15, 2019 by asknod

[Vet Dog and wife]

There are a lot of disabled veteran' that need help. I have definitely  benefited helping my husband due to your's , Berta's, and several others advice.

Thank you asknod and stick with us, we need you.

hadit is awesome, we thank you all for your help 

Edited March 15, 2019 by Vet Dog and wife

[SgtE5]

"The VA denied the claim. In order to do that they had to have an "opinion" contrary to the LHI doctor's positive opinion."

 

Asknod, in reading my c-file, there is no other opinion in it to rebut the LHI opinion. If so, shoudn't it be in my c-file?

Edited March 15, 2019 by SgtE5

[FormerMember]

 Unless you received your claims file after September 2018 when you received the denial, then the VA's IMO reasoning is what you posted in #4 when you copied and pasted the info after being asked by my fellow moderator. You pasted:

1)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. 

2) Service connection for left knee condition is denied since this condition neither occurred in nor
was caused by service.

3) Service connection for right knee condition is denied since this condition neither occurred in nor
was caused by service. 

That decision, or VA nexus if you will, with the VA seal on the first pages is called the "narrative". It may or may not have come with what we call a confirmed rating decision listing all your SC and NSC conditions. If you received your claims file before they issued the narrative, then it would not be in the claims file you now have.

 As I tried to explain to any who will listen, VA has their own in-house VA examiner. S/he is a medical doctor or ARPN/PA-C etc. S/he is the one who made the nexus (IMO) finding of fact that denied you. I cannot seem to impress on folks that a LHI nexus isn't worth the paper it is printed on. You can fight it with a CUE. You might win it saying it's CUE but you are in for a NOD and appeal. File a NOD and allege CUE. Cite to M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a);  see also sec. B(3)(b) (requiring correction of errors on the rating codesheet, including disability evaluations, effective dates, and diagnostic codes); id., sec. B(3)(c) (requiring referral of an erroneous decision "to a decision maker to issue a new decision" once an error has been identified). Hell, claim §4.6 was ignored. 

In sixteen months, VA will probably send you a SOC. At that time you can opt in to the BVA with VA form 10182. Shoot. I don't have any more advice to offer without stepping on someone else's toes around here. 

 

 

Edited March 15, 2019 by asknod

[stumpy579]

My appeal was recently remanded by the BVA for a "new medical opinion". I proved to the BVA that the C&P exam i received at a VAMC was inadequate and so they ruled. If i had a proper IMO in my file they would have granted my appeal. I wanted one but could not afford one. So what will i do now? I must find a way to get one now that i have a second chance. Maybe the new medical opinion ordered in the remand will turn the tide in my favor. Maybe it will result in denial. Maybe it will be remanded once again. However,if i get my own proper IMO i am certain i will prevail. Your situation is not the same as mine but while you are finding out why those clowns didn't consider the LHI doctors opinion you should be looking into getting your own IMO. You have lots of time. I am personally convinced,after reading many posts and forums,that a proper IMO is essential in most cases. I'm just a clueless numb nuts handling my own claim without an attorney or VSO but thats my two cents.