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Denied service connection


SPO

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I posted this same info in another thread, longer, thread in C&P exams, but I'll put this here to see if anyone has any ideas.

I apologize in advance for the length of this, but here is an excerpt from my decision letter, I'll try to upload the whole thing later. Most of my contentions have an explanation just like this, or very similiar.

"Service connection for psoriatic arthritis of the left shoulder is not established. Service connection may only be granted for a chronic disability which began in military service or was caused by some event or experience in service.

The evidence does not show an event, disease or injury in service. (38 CFR 3.303, 38 CFR 3 .30~). Your service treatment records do not contain complaints, treatment, or diagnosis for this condition. The VA medical opinion found no persistent disability. 

The medical opinion we received from the VA contract examination was more persuasive than your private physician's opinion because it was based on an in-person examination and a thorough review of your relevant military and /or personal history and contained a more convincing rationale. (38 CFR 4.6) The evidence does not show that your condition resulted from, or was aggravated by, a service-connected disability. (38 CFR 3.303, 38 CFR 3.304) 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. (38 CFR 3.307, 38 CFR 3.309)

 The VA contract medical opinion dated December 15, 2018, was not based on a review of your claims file or an in-person examination. 

Service connection for psoriatic arthritis of the left shoulder is denied because the medical evidence of record fails to show that this disability has been clinically diagnosed. (38 cfr 3.303)"

I can make sense of this.  I submitted a DBQ from my doctor with a diagnosis, but the say its not clinically diagnosed.  Also CFR 3.07 and 3.308 are presumptive conditions, I did not claim this as a presumptive condition, its a secondary to psoriasis.  I don't have the copies of the opinion and exam yet.  Also they say the medical opinion was not based on my claim file or an exam, how is that valid for anything? 

Also the VA got a medical opinion in December 2018, and an in-person C&P exam in April 2019.

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As always, you need to file a nod, and keep the reasons and bases handy to refute them.  Always cite "evidence" to refute VA reasons and bases.  

The good news is that these were specific reasons and bases, and, if you can refute them, you should prevail in an appeal.  

This may mean another IMO.  The VA can select the opinion of one doc over another, but must give a reasons and bases for doing so.  This is what they did.  You should answer their "complaints" such has having your IMO state that he read your file.  

You could also argue "equipose" as doc a said yea, and doc b said nay.  It would be especially helpful if you can cite doc c who also said yea.  You may already have that, and it would take a review of your file to know.  

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First off is this condition in your medical records from the Military?  If it is not in there then the denial is correct.  

Next you said the condition was secondary to psoriasis?  If this is so then you need to claim it as secondary to this condition (did you claim it as primary?).  You then will needs a NEXUS from your doctor to show how it is aggravated by your service connected condition.  

Also please upload the denial and cover your information.  sometimes there are things missed which can show you what they are talking about.  

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As always, you need to file a nod, and keep the reasons and bases handy to refute them.  Always cite "evidence" to refute VA reasons and bases.  

The good news is that these were specific reasons and bases, and, if you can refute them, you should prevail in an appeal.  

This may mean another IMO.  The VA can select the opinion of one doc over another, but must give a reasons and bases for doing so.  This is what they did.  You should answer their "complaints" such has having your IMO state that he read your file.  

You could also argue "equipose" as doc a said yea, and doc b said nay.  It would be especially helpful if you can cite doc c who also said yea.  You may already have that, and it would take a review of your file to know.  

One thing to know:  Most VA denials are incorrect.  The proof is at the BVA

chairmans report, who says that about 20 percent of claims are denied by the BVA, which means the other 80 percent are either remanded or awarded.  (Its a mix between remands and awards, with remands usually higher than awards).

See for yourself: (scroll down to statistics page, about page 31, 32, 33) on the 2018 report.  Particularly troubling is the amount of Board denials increasing, substantially, in 2018.  This means the board is rushing through them to clear the backlog by denying.  This is already resulting in a backlog at the CAVC.  

https://www.bva.va.gov/Chairman_Annual_Rpts.asp

 

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1 minute ago, broncovet said:

As always, you need to file a nod, and keep the reasons and bases handy to refute them.  Always cite "evidence" to refute VA reasons and bases.  

The good news is that these were specific reasons and bases, and, if you can refute them, you should prevail in an appeal.  

This may mean another IMO.  The VA can select the opinion of one doc over another, but must give a reasons and bases for doing so.  This is what they did.  You should answer their "complaints" such has having your IMO state that he read your file.  

You could also argue "equipose" as doc a said yea, and doc b said nay.  It would be especially helpful if you can cite doc c who also said yea.  You may already have that, and it would take a review of your file to know.  

One thing to know:  Most VA denials are incorrect.  The proof is at the BVA

chairmans report, who says that about 20 percent of claims are denied by the BVA, which means the other 80 percent are either remanded or awarded.  (Its a mix between remands and awards, with remands usually higher than awards).

See for yourself: (scroll down to statistics page, about page 31, 32, 33) on the 2018 report.  Particularly troubling is the amount of Board denials increasing, substantially, in 2018.  This means the board is rushing through them to clear the backlog by denying.  This is already resulting in a backlog at the CAVC.  

https://www.bva.va.gov/Chairman_Annual_Rpts.asp

 

Bronco is right on!

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Ok, so how should I go about refuting them.  I already gave them a clinical diagnosis, its not part of a presumptive condition, and it developed well after I got off active duty (as a side note, its medically known that this condition develops, on average, between the ages of 30-50 (i'm 35) and about 10 years after onset of psoriasis.  I first had psoriasis in 2005, and diagnosed with psoriatic arthritis in 2016) .  Aside from filing a NOD I'm not sure what to actually provide or say in rebuttal.   shrekthetank1, I did claim it as a secondary.  My doc included a statement in the DBQ that said it was more likely than not caused by/connected to psoriasis.

Edited by SPO (see edit history)
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4 minutes ago, SPO said:

Ok, so how should I go about refuting them.  I already gave them a clinical diagnosis, its not part of a presumptive condition, and it developed well after I got off active duty (as a side note, its medically known that this condition develops, on average, between the ages of 30-50 (i'm 35) and about 10 years after onset of psoriasis.  I first had psoriasis in 2005, and diagnosed with psoriatic arthritis in 2016) .  Aside from filing a NOD I'm not sure what to actually provide or say in rebuttal.   shrekthetank1, I did claim it as a secondary.  My doc included a statement in the DBQ that said it was more likely than not caused by/connected to psoriasis.

So I made this mistake on one of mine.  It kinda sounds like this RO is just saying it was not linked to service instead of being aggravated by your psoriasis.  I made the mistake of saying it caused this other condition with out any proof.  File the NOD, but plz post their reasoning here as you will need to refute what they are saying. 

There are a bunch of things you can do, but we need more information to give you help.  

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There is plenty of medical evidence that shows the link:

https://www.medicalnewstoday.com/articles/323672.php

https://www.psoriasis.org/about-psoriatic-arthritis

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4206220/

https://www.mayoclinic.org/diseases-conditions/psoriatic-arthritis/symptoms-causes/syc-20354076

It is well know in the medical community but a strong IMO/IME eeds to refer to the best links and abstracts a doctor can find, to boldster their opinion.

You can win this. 

 "My doc included a statement in the DBQ that said it was more likely than not caused by/connected to psoriasis."

The doctor has to give a full medical rationale, by using excerpts from the above links, and if they are a dematologist they might have even stronger information.

"Also the VA got a medical opinion in December 2018, and an in-person C&P exam in April 2019."

What was the medical background of the C & P examiner? Have you googled their name?

It pays to give an IMO/IME doctor a copy of any negative C & P exam, so that they can attack it, and refute what it says.

SPO, they might have committed CUE- in the decision, can you scan and post it here? 

Cover your C file #, name, etc prior to scanning it.

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These claims can succeed.
"ORDER

Entitlement to service connection for nonspecific 
inflammatory polyarthritis and/or psoriatic arthritis is 
granted.

Entitlement to service connection for psoriasis/eczema is 
granted."

https://www.va.gov/vetapp09/files3/0925539.txt

What the Hell do they mean here:

" The VA contract medical opinion dated December 15, 2018, was not based on a review of your claims file or an in-person examination. "

That right there, if they somehow used that opinion against the claim, might well be a CUE.

Is VA paying these contracting firms real money to do deficient C & P exams? YES!!!!!!!!    Read the lastest GAO report I posted here yesterday- 

I am going to write another Bill to send to the H VAC on this.

Vets are being screwed and tattooed by very deficient C & P exams.

It is an unjustice that causes multiple denials.

 

 

Edited by Berta (see edit history)
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Can I include medical information (not specific to me) that says that the two conditions are connected.  It seems the statement from my doctor wasn't enough proof for them.  I've never had to deal with this so I'm not sure what I need to provide them, a full nexus letter in addition to the DBQ maybe?.  What other information would be helpful to you?

So far I think I can refute:

1. the presumptive condition issue, by saying its secondary to a service connected condition it doesn't need to have onset during active duty, or withing a certain period after discharge or be  in my service medical record. (I also thought that there was a specific list of presumptive conditions, and this isn't one of them.  let me know if I'm wrong.

2. They were provided a clinical diagnosis in my DBQ by a licensed doctor.

3. the first line says there was no event, disease, or injury in service.  The primary is Psoriasis, which was incurred on active duty and already service connected

I don't know how to refute the fact that they didn't chose my doc's opinion over the C&P exam yet, because I haven't read it yet.  Please let me know if I'm on the right track.

I will scan in the whole decision letter tomorrow.  Thanks in advance for all the help

Edited by SPO (see edit history)
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You refute them with evidence that conflicts with VA decision "reasons and bases", that's how.  

For example, you can, in your NOD, that VA erred by not considering your claim as secondary to psoriasis, and cite that dbq.  

The VA is required to consider all methods of sc.  Its not the Veterans job to determine if his condition is on the presumptive list, or if its primary or secondary.  

See, for example, 38 CFR 4.6.  

I like "attacking" VA decisions on multiple fronts, and let the decision maker decide which one is probative.  

So, you could argue that VA did not consider Secondary SC to psoriasis AND, there may well be another doc who opined favorably for you in your file.  You need to get your file and read it to see if there is already evidence, OR just go and pay for an IMO.  

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If your condition is not on the presumptive list, then dont bring that term up.  It does not support your claim.  Just argue the reasons FOR sc, and, based on what you posted, presumption isnt one of them.  

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YES SPO you are on the right track.

It is a Valid secondary condition.

Our IMO/IME forum might give you a better idea of what you need from a real doctor- a non VA doctor.

A real doctor with expertise in this condition.

But the most important thing you need is medical rational to support that this is secondary to the psoriasis-

If a real doctor gives you tht rationale and also uses some excerpts from good medical web site like the ones above-to support their diagnosis of this as secondary, the VA will not be able to adequately refute that.

This might be another CUE within the appellate period.

They can go so fast, there might be no need for a NOD.

 

Edited by Berta (see edit history)
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Just to add:

You are already a successful Cuerino!

If I see a CUE in the downloads, I will prepare it for you ,you can tweek it, and it will fly-

 

 

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Berta,

here is the full decision letter (redacted).   Also something that just caught my attention is the decision for my right hip.

"Favorable Findings identified in this decision:
The evidence shows that a qualifying event, injury, or disease had its onset during your service.
You reported symptoms of a right hip condition in service.
You have been diagnosed with a disability. The prior VA examination diagnosed you with a right hip strain."

They denied service connection on this all the way back to 2009, but I'll let you read the whole thing.  

For whats its worth I just added the DBQ I submitted, and my doc changed it to not answer the question about limitation of motion because he didn't actually test himself.

 

decision.pdf

1444241425_DermDQB2_Redacted (2).pdf

Edited by SPO (see edit history)
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I have to leave in a few minutes- 

Am I understanding this correctly:

"The VA contract medical opinion dated December 15, 2018, was not based on a review of your claims file or an in-person examination." They stated that many times.

"The medical opinion we received from the VA contract examination was more persuasive than your private physician's opinion because it was based on an in-person examination and a thorough review of your relevant military and /or personal history and contained a more convincing rationale. (38 CFR 4.6)"

Are they talking about two separate contracted C & P exams?

The DBQ is not good at all. It says no files were reviewed. Right off the bat they gave it no weight because of that- But it also says that for the VA Contract Exam, as well. ???????

You need an IMO that conforms to the IMO /IME criteria here at hadit from a real dermatologist.

I could not find the Evidence list.

They throw in the presumptive stuff to CTAs, in case it was a presumptive. 

 

 

 

 

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"The medical opinion we received from the VA contract examination was more persuasive than your private physician's opinion because it was based on an in-person examination and a thorough review of your relevant military and /or personal history and contained a more convincing rationale. (38 CFR 4.6)"

Are they talking about two separate contracted C & P exams?

Do you have a copy of the other exam, where the contractor did have all of your records and they say it was an inperson Exam?

I got a posthumous C & P exam copy last week.The specific claim was awarded in 3 weeks after their denial because they listed my sole piece of evidence, but the examiner never considered it.

The exam stated it was an inperson exam, but my husband had been dead for 19 years by date of the exam.

She said she used his C file.He does not have a C file anymore, it is under my name as the accrued surviving claimant.

The examiner had to put an addendum to that error but she was completely unqualified to do the exam. My evidence came from the top Cardiologist at VA Central Office. I have Cue pending on the award letter as the EED is all wrong.

Hopefully others will chime in------I have to leave for hours-----

 

 

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There was 2 separate exams.  They requested a medical opinion which was done by VES in december, and an in person C&P in april.  I thought the dbq would hold at least a little weight, at least for the diagnosis part, because he has been my treating physician for both psoriasis and psoriatic arthritis.  I'll add the evidence list as an attachment.  I can probably get my dermatologist to write an opinion, he has been very veteran friendly, just a matter of telling him the details and format that it needs to have.

I don't have a copy of the exams yet, I have to get to the RO and request everything.  added the evidence list as.

Also i've never requested any documents from the VA.  Is everything done through a FOIA request by fax/mail for the c-file information, or should I be able to get the pertinent exam results at the RO same day?

evidence.pdf

Edited by SPO (see edit history)
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DAV ordered my c-file for me yesterday, so now I have to wait for that.  Should I wait to look at that before I file the NOD? Any thoughts on all the documentation I posted?

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"CAN YOU GET A COPY OF YOUR C&P EXAM?

You have the right to request and obtain a copy of your C&P exams by contacting the VA medical center where the exam was conducted, or your VA Regional Office.  VA decision makers often place significant weight on C&P exams when deciding claims.  Therefore, it is important for you to review the exam to determine if the results are favorable.  Furthermore, you can ensure that the exam was filled out completely and thoroughly, reflecting the most accurate information possible.

(CCK has some other good info here and all over their site)

https://cck-law.com/news/cp-exams-compensation-pension-exams-role-play-va-disability-case/

I believe this is the form you need:

https://www.va.gov/vaforms/va/pdf/va3288.pdf

Others will correct me if I am wrong-

 

Edited by Berta (see edit history)
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