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C&P Nexus of opinion inadequate?


doc25

Question

Would this be an inadequate nexus of opinion?

The examiner clearly marked that it "at least as likely as not" incurred in service, but in the rationale just concurred with a previous C&P exam rationale.

Full 2nd C&P exam Nexus_Redacted.pdf

Edited by doc25 (see edit history)
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10 minutes ago, doc25 said:

Would this be an inadequate nexus of opinion?

@doc25

this uploaded doc seems to have an alignment problem with the check boxes. at least in my pdf viewers.

can you look at the original unedited doc and see which pieces of evidence reviewed where checked?

In what I see it looks like they did not review some of the listed items in the DBQ.

please upload the 1st dbq and other documents, code sheets, award letter with evidence reviewed, request from VA for the C&P. redacted of course.

the conflict in opinion may be flowing from that original dbq and comments noted from that other doctor.

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1 minute ago, GeekySquid said:

@doc25

this uploaded doc seems to have an alignment problem with the check boxes. at least in my pdf viewers.

can you look at the original unedited doc and see which pieces of evidence reviewed where checked?

In what I see it looks like they did not review some of the listed items in the DBQ.

please upload the 1st dbq and other documents, code sheets, award letter with evidence reviewed, request from VA for the C&P. redacted of course.

the conflict in opinion may be flowing from that original dbq and comments noted from that other doctor.

Yea for some reason my Adobe misaligned it. I will post everything I have with the exception of the 3rd c&p results. I had to request that from the intake center.

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1 minute ago, doc25 said:

I will post everything I have with the exception of the 3rd c&p results.

@doc25

Great!..I have that happen when I use Adobe. I get a better result from Nuance Power PDF,  but alignment issues do happen in some files.

 

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9 minutes ago, GeekySquid said:

@doc25

this uploaded doc seems to have an alignment problem with the check boxes. at least in my pdf viewers.

can you look at the original unedited doc and see which pieces of evidence reviewed where checked?

In what I see it looks like they did not review some of the listed items in the DBQ.

please upload the 1st dbq and other documents, code sheets, award letter with evidence reviewed, request from VA for the C&P. redacted of course.

the conflict in opinion may be flowing from that original dbq and comments noted from that other doctor.

Yea for some reason my Adobe misaligned it. I will post everything I have with the exception of the 3rd c&p results. I had to request that from the intake center.

EntranceExam98.pdf In-serviceDxpg1.pdf In-service Dxpg2.pdf C&P 2007pg2_Redacted.pdf C&P 2007pg3_Redacted.pdf C&P 2007pg4_Redacted.pdf 2007DenialLetter1_Redacted.pdf 2007DenialLetter2_Redacted.pdf 2007DenialLetter3_Redacted.pdf 2017DenialLetter1.pdf 2017DenialLetter2.pdf Denial Letter 4-18-19.pdf Denial Letter 4-18-19p2.pdf

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25 minutes ago, doc25 said:

I will post everything I have with the exception of the 3rd c&p results

@doc25

I just read all the pages you post. Here is a list of things that jump out at me. Maybe others will see more stuff.

1) Entrance Exam page-cannot tell what the handwriting says just that you have an NORMAL ARCH is circled. Is there other stuff on this physical that indicates congenital flat feet?

2) DX pg 1 in service record shows complaint of foot problems-not congenital

3)  DX pg 2 in service record shows ROM problem with ankles(?) what is this about(?) does not mention congenital. gives a consult for DME orthoses (what is this and did you go?).

4) C&P 2007 pg 2 indicates you did not complain about serious problem with your feet. Is this correct?

5) C&P 2007 pg 3 indicates no feet problems. In section on left knee raises "mere speculation" issue. Not sure where that might go for you.

6) C&P 2007 pg 4 brings up first mention in these docs of "congenital". Why that diagnosis? if your feet were good at entrance in what looks like 1998 (that Normal Arch entry) then how is it in 2007 your problem is now called "congenital"? Congenital means "from birth" so where is the justification for that diagnosis?

7) 2007 Denial Letter pg 1 relies on the congenital statement. If this is a congenital issue, then your Entrance Exam info seems to be important. Further NSC conditions aggravated by a service connected nexus are rateable as SC. so their claim your service did not aggravate your flat feet seems questionable without further explanation or documentation of that word "congenital".  They further state additional medical evidence based on another exam which concurs with "congenital" statement without further supporting evidence it is congenital. The military accepted you on the entrance exam, so any harm service does or aggravates should be compensable. Maybe others will chime in on this part related to NSC's accepted at induction physical.

8 ) 2007 Denial Letter pg 2 indicates no evidence directly looking at congenital. This may or may not be relevant.

9) 2007 Denial Letter pg 3 says a congenital or developmental defect. This is a change in diagnosis. As far as I can tell from the regulations and laws raters cannot make spurious medical diagnostic claims  sua sponte or sua generis, meaning on their own. so why is developmental a stated likely cause? it is very different than congenital (from birth) and I don't remember seeing it in any C&P DBQ or medical note that you have posted. Their claim that orthotics fix your problem and allows the VA to deny service connection seems tenuous at best as orthotics don't cure anything, they just help alleviate the pain from the problem. The experts here might have a better idea how problematic that statement is.

10) 2017 Denial letter pg 1 relies on the congenital developmental claim from above. may be in error if you can fight that part of the record. It further states that there was a VA Letter 2016 that I don't see here. Was there one? can we see it? did I miss some date on one of the pieces  you uploaded above?

11) 2017 Denial Letter pg 2 Says they reviewed STR's from 99 to 2007 and they were received May 2016. What is with these dates? how could teh 2007 denial be done without those records "received 2016? it seems odd to include since they also say they did a complete review of claim file but does NOT mention a complete review of your service record. Isn't this supposed to be a De Novo review since you were granted a re-opening of your claim? if it is De Novo it means a complete review with fresh eyes are required. Mentions VA Letter 2007 is that your denial letter? or another one"? and it mentions the Harlingen VA treatment records. Did you upload them? what do they say? is this were congenital and developmental diagnosis get supported? I don't see an explicit buddy statement listed in the evidence. is there one? what about your statement of claim? where is it?

12) Denial Letter 4-18-19 pg 1 says denial remains because evidence submitted is not New and Material. As of Feb 19, 2019 the standard is New and Relevant replacing New and Material. The CFR has different language as does the USC. I would look into this as it seems they may be applying the law wrong as to what is New and Relevant.

13) Denial Letter 4-18-19 pg 2 says 5103 response received Dec 2018. By who and what did it say? Says lay evidence received Jan 31, 2019 and dated Feb 18, 2019. WTF is with the dates? how do you receive a letter before it is written? repeats New and Material denial. Claims lay evidence received is not credible. This needs to be investigated. what did that letter say and why would it not be credible. The VA is required by law to give broad latitude to lay evidence, so what made that letter incredible? The vet gets Benefit of the Doubt and any lay evidence is not expected to be on par with evidence written by a doc or lawyer.

@doc25 others may find more stuff, but at first read I see some missing pieces and questions that might need to be addressed. You may have that info and that would be great but what I asked about I don't see in the records you uploaded. To me it seems there are evidentiary problems, diagnostic claims not supported by medical evidence and a potentially invalid claim that your lay evidence is not credible. It seems you also have an IME/IMO type evidence from non-va providers that may contradict the VA doctors diagnosis.  I don't see them here so you may want to create a word-map showing the differences and contradictory diagnoses ( i think that is the proper plural of diagnosis?)

It reads like a fustercluck revolving around that claim of congenital and then the developmental declaration seems to make it more questionable.

I hope all that adds something to your thinking and planning.

 

 

 

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4 hours ago, GeekySquid said:

@doc25

I just read all the pages you post. Here is a list of things that jump out at me. Maybe others will see more stuff.

1) Entrance Exam page-cannot tell what the handwriting says just that you have an NORMAL ARCH is circled. Is there other stuff on this physical that indicates congenital flat feet?

2) DX pg 1 in service record shows complaint of foot problems-not congenital

3)  DX pg 2 in service record shows ROM problem with ankles(?) what is this about(?) does not mention congenital. gives a consult for DME orthoses (what is this and did you go?).

4) C&P 2007 pg 2 indicates you did not complain about serious problem with your feet. Is this correct?

5) C&P 2007 pg 3 indicates no feet problems. In section on left knee raises "mere speculation" issue. Not sure where that might go for you.

6) C&P 2007 pg 4 brings up first mention in these docs of "congenital". Why that diagnosis? if your feet were good at entrance in what looks like 1998 (that Normal Arch entry) then how is it in 2007 your problem is now called "congenital"? Congenital means "from birth" so where is the justification for that diagnosis?

7) 2007 Denial Letter pg 1 relies on the congenital statement. If this is a congenital issue, then your Entrance Exam info seems to be important. Further NSC conditions aggravated by a service connected nexus are rateable as SC. so their claim your service did not aggravate your flat feet seems questionable without further explanation or documentation of that word "congenital".  They further state additional medical evidence based on another exam which concurs with "congenital" statement without further supporting evidence it is congenital. The military accepted you on the entrance exam, so any harm service does or aggravates should be compensable. Maybe others will chime in on this part related to NSC's accepted at induction physical.

8 ) 2007 Denial Letter pg 2 indicates no evidence directly looking at congenital. This may or may not be relevant.

9) 2007 Denial Letter pg 3 says a congenital or developmental defect. This is a change in diagnosis. As far as I can tell from the regulations and laws raters cannot make spurious medical diagnostic claims  sua sponte or sua generis, meaning on their own. so why is developmental a stated likely cause? it is very different than congenital (from birth) and I don't remember seeing it in any C&P DBQ or medical note that you have posted. Their claim that orthotics fix your problem and allows the VA to deny service connection seems tenuous at best as orthotics don't cure anything, they just help alleviate the pain from the problem. The experts here might have a better idea how problematic that statement is.

10) 2017 Denial letter pg 1 relies on the congenital developmental claim from above. may be in error if you can fight that part of the record. It further states that there was a VA Letter 2016 that I don't see here. Was there one? can we see it? did I miss some date on one of the pieces  you uploaded above?

11) 2017 Denial Letter pg 2 Says they reviewed STR's from 99 to 2007 and they were received May 2016. What is with these dates? how could teh 2007 denial be done without those records "received 2016? it seems odd to include since they also say they did a complete review of claim file but does NOT mention a complete review of your service record. Isn't this supposed to be a De Novo review since you were granted a re-opening of your claim? if it is De Novo it means a complete review with fresh eyes are required. Mentions VA Letter 2007 is that your denial letter? or another one"? and it mentions the Harlingen VA treatment records. Did you upload them? what do they say? is this were congenital and developmental diagnosis get supported? I don't see an explicit buddy statement listed in the evidence. is there one? what about your statement of claim? where is it?

12) Denial Letter 4-18-19 pg 1 says denial remains because evidence submitted is not New and Material. As of Feb 19, 2019 the standard is New and Relevant replacing New and Material. The CFR has different language as does the USC. I would look into this as it seems they may be applying the law wrong as to what is New and Relevant.

13) Denial Letter 4-18-19 pg 2 says 5103 response received Dec 2018. By who and what did it say? Says lay evidence received Jan 31, 2019 and dated Feb 18, 2019. WTF is with the dates? how do you receive a letter before it is written? repeats New and Material denial. Claims lay evidence received is not credible. This needs to be investigated. what did that letter say and why would it not be credible. The VA is required by law to give broad latitude to lay evidence, so what made that letter incredible? The vet gets Benefit of the Doubt and any lay evidence is not expected to be on par with evidence written by a doc or lawyer.

@doc25 others may find more stuff, but at first read I see some missing pieces and questions that might need to be addressed. You may have that info and that would be great but what I asked about I don't see in the records you uploaded. To me it seems there are evidentiary problems, diagnostic claims not supported by medical evidence and a potentially invalid claim that your lay evidence is not credible. It seems you also have an IME/IMO type evidence from non-va providers that may contradict the VA doctors diagnosis.  I don't see them here so you may want to create a word-map showing the differences and contradictory diagnoses ( i think that is the proper plural of diagnosis?)

It reads like a fustercluck revolving around that claim of congenital and then the developmental declaration seems to make it more questionable.

I hope all that adds something to your thinking and planning.

 

 

 

1). No nothing else documented in the entrance exam.

2.) Correct. 

3.) Equinus means tight achillies tendons. No mention of congenital. I was prescribed arch supports and yes I went. I even used the damn things for 5 years until there was just the heel and arch molding. All the padding had worn away.

4.) I did complain of foot pain in 2006. There was no injury whatsoever to my feet.  A navy podiatrist made the diagnosis pes plano valgus.  

5.) Same as above. The knee was SC 10%. The issue is my feet since 2006 to the present.

6.) For an exit C&P exam, is a Benefits Disability claim on Discharge. From my understanding, the examiner doesn't need a rationale. Basically, can diagnose what they want. I could be wrong. I'll follow up with the guidelines.

7.) That's why I'm still pushing for SC for flat feet. I strongly believe it was an injustice done to my claim. VBA ust saying that I had congenital flat feet without clear and unmistakeable evidence prior to entering service is wrong and unlawful. Otherwise, I'd leave the claim alone. But, the VBA is making up stories that medically are not true. 

8.) No such congenital or developmental evidence ever existed at anytime during my childhood or adolescence. 

9.) Hmmm...so the VBA continues to make up their own rules. Wonderful.

10.) I had submitted claims for other disabilities in 2016. Flat feet was not one of them because I didn't know I could reopen a finalized decision. I reopened the Flat feet claim in April 2017 and was denied July 2017. I appealed and submitted a NOD. I was provided the SOC. The problem was that I naively believed that my VA podiatrist would help me out by writing a nexus of opinion. I requested it numerous times and never got. I wasn't able to submit my I9 Form, after a year the appeal was closed.

11.) VA podiatrist made the same diagnosis as the Navy podiatrist did in 2006. How can two experts in their specialty make the same diagnosis 10 years apart without ever consulting with one another? See the 9-17-16 note below. I had been treated for a year and did physical therapy. PPV= Pes Planus Valgus (Flat Feet).

12.) Strange how one word can change things. Ha ha.

13.) I don't even know what a 5103 is. Flub my luck. 

 

Chadburn Note9-17-16.pdf

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11 minutes ago, doc25 said:

don't even know what a 5103 is. Flub my luck. 

@doc25

The 5103 is the notice of what you need to support your claim. the evidence you need.

https://www.benefits.va.gov/COMPENSATION/notice.asp

I really don't follow what you are saying in the first line of answer 6. will you please clarify for me.. " For an exit C&P exam, is a Benefits Disability claim on Discharge. " are you saying your military exit exam is ALSO a Benefits Disability Claim? that interpretation seems odd to me. I have never heard it put that way.

It is just my opinion, but with the complexity of this situation asking a VA accredited lawyer, maybe from NOVA, might be your best option. Even just a free consultation just to make sure all those things (or at least some of them) are the legal problems they seem to be.

The VA gets away with murder  because NONE of us was ever issued a VA-to-Human dictionary or a crash course in "VA" before we filed our claims. We all learn by the school of hard knocks and it sucks. I can envision the VA continuing to fight this using many of those same statements.

i personally read all your response to hinge on the words congenital and developmental. They seemed to have been pulled out of thin air with no supporting documentation. I still don't know what that handwriting is on your entrance physical but the circled item is clear. It is possible that writing refers to some other medical term that means congenital or developmental.  if so I would still make the VA clarify where those characterizations came from and why they are accepted without supporting evidence.

The rater cannot make a medical diagnosis. period. even the VA "expert" they might have consulted cannot do a paper-diagnosis as they are not the C&P doc or the treating doc.

I would also make sure in any appeal you file from here on in to request the VA provide the credentials, certifications, publications and other proof that ALL the people who dealt with your claim have be added to your C-file. This will help preserve a legal claim at higher court to challenge the competency of the doctors and their findings.

The Veterans Law Blog has stuff on how to put that demand in your appeal and I think it might be here too. Chris Attig has articles here a lot and that may be one of them.

There is also AskNod on here who may (or may not) take you on as a client.

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9 minutes ago, GeekySquid said:

@doc25

The 5103 is the notice of what you need to support your claim. the evidence you need.

https://www.benefits.va.gov/COMPENSATION/notice.asp

I really don't follow what you are saying in the first line of answer 6. will you please clarify for me.. " For an exit C&P exam, is a Benefits Disability claim on Discharge. " are you saying your military exit exam is ALSO a Benefits Disability Claim? that interpretation seems odd to me. I have never heard it put that way.

It is just my opinion, but with the complexity of this situation asking a VA accredited lawyer, maybe from NOVA, might be your best option. Even just a free consultation just to make sure all those things (or at least some of them) are the legal problems they seem to be.

The VA gets away with murder  because NONE of us was ever issued a VA-to-Human dictionary or a crash course in "VA" before we filed our claims. We all learn by the school of hard knocks and it sucks. I can envision the VA continuing to fight this using many of those same statements.

i personally read all your response to hinge on the words congenital and developmental. They seemed to have been pulled out of thin air with no supporting documentation. I still don't know what that handwriting is on your entrance physical but the circled item is clear. It is possible that writing refers to some other medical term that means congenital or developmental.  if so I would still make the VA clarify where those characterizations came from and why they are accepted without supporting evidence.

The rater cannot make a medical diagnosis. period. even the VA "expert" they might have consulted cannot do a paper-diagnosis as they are not the C&P doc or the treating doc.

I would also make sure in any appeal you file from here on in to request the VA provide the credentials, certifications, publications and other proof that ALL the people who dealt with your claim have be added to your C-file. This will help preserve a legal claim at higher court to challenge the competency of the doctors and their findings.

The Veterans Law Blog has stuff on how to put that demand in your appeal and I think it might be here too. Chris Attig has articles here a lot and that may be one of them.

There is also AskNod on here who may (or may not) take you on as a client.

The handwriting is hallux valgus aka bunions. That does run in my family. That's probably where the congenital bs diagnosis is coming from. But hallux valgus is a totally different disability that I never complained about.

 

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12 minutes ago, doc25 said:

The handwriting is hallux valgus aka bunions. That does run in my family.

@doc25

if that is correct and that is where congenital comes from you are on the money and will win your claim.

as a side note I never knew bunions were hereditary... I learned something new 🙂

I just ran across a report on VA Lay Evidence and its value in VA courts. It is from 2012. attached it here as you might be interested

jhch.pdf

Edited by GeekySquid
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18 hours ago, GeekySquid said:

@doc25

if that is correct and that is where congenital comes from you are on the money and will win your claim.

as a side note I never knew bunions were hereditary... I learned something new 🙂

I just ran across a report on VA Lay Evidence and its value in VA courts. It is from 2012. attached it here as you might be interested

jhch.pdf 669.07 kB · 1 download

Yea, I won't argue with the VA that bunions are congenital, but my flat feet are not. Both my parents had normal arches. Bunions are on my mom's side. 

This last denial letter does mention that my lay evidence was incompetent. Just my luck. ha ha.

I wasn't self diagnosing in my statement in support of the claim; I was already diagnosed in-service, and the lay evidence my wife wrote was her objective view of my symptoms from when we she first knew me to the present.

Edited by doc25 (see edit history)
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1 minute ago, doc25 said:

this last denial letter does mention that my lay evidence was incompetent. Just my luck. ha ha.

 

I would look into challenging the determination of competence. VA gives itself wide latitude to say what is competent but the courts don't really rely on that. Check out the BVA and CAVC opinions....remands everywhere on that issue.

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1 minute ago, GeekySquid said:

 

I would look into challenging the determination of competence. VA gives itself wide latitude to say what is competent but the courts don't really rely on that. Check out the BVA and CAVC opinions....remands everywhere on that issue.

Will do.

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I noticed the examiner was a family practitioner, and not podiatrist.

I have Pes planus, and also severe pronation.

The VA does not have a legal standing to suggest your condition is congenital.

You were accepted into service as physically "Fit".

Bunions can be hereditary however my podiatrist always checks my feet for callouses and bunions due to my foot condition- yet I do not have bunions, which often are hereditary due to a deformity of the foot, 

 

i cant use my PC anymore , until the weather breaks- the internet has both a Harvard dicussion on bunions, and ther is also a myth that bunions are hereitary after the Harvard article -just google 'are bunions hereitary and those articles should pop up

A real podiatrist could probably help you with an IME.

The inservice exam is not detailed- pes planus affects the ankles,if the foot condition is not properly diagnosed and treated with orthonics.

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17 minutes ago, Berta said:

The VA does not have a legal standing to suggest your condition is congenital.

@Berta

I was sure of that... thank you for confirming it.  @doc25 needs to smack them around (legally speaking) for that ad hoc and spurious claim!!!!

not having any rated foot issues beyond the Lis Franc fracture that has me in a wheel chair right now I don't know much about how VA deals with this stuff.

I do know I have foot pain when I stand most mornings and when I walk sometimes but right now i don't walk so 😞 so I cannot do much about any claim on that issue and frankly it would likely be NSC anyway. Shin Splints, standing, and jumping out of planes are about my limit on in service foot connections. LOL. I do have a hammertoe thing on my left foot that started with wearing boondockers and running the grinder in boot camp. OUCH!

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This article by a vet law firm might help:

https://www.hillandponton.com/va-disability-benefits-pre-existing/

In part:

"It’s important to know that in this situation, where there is no notation of a pre-existing condition on entrance but the veteran develops one during service, the veteran is not required to prove the origins of that disability. Once the presumption of soundness attaches to a case, the veteran does not have to prove he was in sound condition, it is the VA which has to prove that he or she was NOT in sound condition. "

Matt Hill is a hadit member.

If the VA deems something as congenital, that means it should have pre-existed service and in your case, that does not seem to apply.

 

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16 minutes ago, Berta said:

This article by a vet law firm might help:

great link!...it may help me too!

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