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WBrennan

VA did C&P and now sent to VES for second C&P?

Question

Good rainy morning everyone!

I have a claim in for an ankle problem secondary to my SC left knee.  My ankle currently suffers from Ankle Impingement due to repeated sprains and in my MEPS exam it was noted that I had previously broken my ankle.  My knee condition causes me to favor my right ankle.  My MD and VA noted some limited ROM as well as instability.  The doctor at the VA noted her opinion that it is LESS likely than not (<50%) that it is secondary to my left knee SC disability.  I am kinda ok with that. Weeks later my claim moves to Pending Decision Approval for a few days then back to Review of Evidence then back to Gathering of Evidence. Weird but whatever.  Then I see they want to schedule a C&P exam (Still have two open claims) and I figure it was related to that.  It turns out, the VA is sending me to VES for a second C&P exam.  I think they are requesting their medical opinion.  This is where I am baffled.  I thought since the VA Doc said LESS likely than not it would go quickly to a denial.  I am confused about the second C&P for my ankle.  The VA paperwork for the C&P exam is well documented and accurate.  Thoughts on this? Good? Bad? Just getting support for the denial?  thanks!!

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Without seeing everything it is hard to tell. If you confirmed that the next C&P is for the ankle, then they want to confirm that 1) the last examination didn't miss something or 2) the last examiner's exam is for some reason is suspect. That would be my guess. You don't get 2 exams for the same thing in a short period of time unless there is something missing. Could be a good thing. Maybe, the first examiner did have all your med files, x-rays, mri's, etc. and they want to see it again. Could be ok. Maybe. Hope so.

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11 hours ago, WBrennan said:

Thoughts on this? Good? Bad? Just getting support for the denial?  thanks!!

Here is the salient takeaway. You NEED to get the DBQ, the Code Sheet, the Dr;s Notes AND most importantly the Letters/emails between the Examining company/Dr and VA. for both the first and that Second C&P on your problem.

Va will probably fight you on much of that, but those Letters and Code Sheets are key and the Notes, which they must take, are essential to any response you have to the award or denial.

I am fighting a similar battle. Long story but relevant part is VA sent me to do another C&P for Vertigo. I had also put in a New and Material Claim on Hearing Loss. They denied it based on the evidence, in their words, was neither New or Material.

Right after that i got that denial,  I had the first part of the Vertigo C&P and in that process they include a Hearing Test but the audiologist does not do a C&P. Since I did not know that I told her that the VA had screwed up years before and denied me for hearing loss incorrectly and showed her the record...

all of a sudden after the seeing the OTO and him doing his C&P. I get a notice to go to an Audiology C&P.

It was an hour plus drive without traffic. DERP.... I went in handed her the papers said I am not sure why I am here but this is the evidence they screwed up that initial denial. She looked at me and almost did a face-plant and said. Yep, I get it...we are all done here. Two weeks later my Hearing loss was SC'd. I am now in the process of CUEing the original and the Second denial and filing a NOD on the second denial.

My quest for the EED on the HL rating is on. So is getting my Vertigo rating changed to Menieres' but that is a different topic. The VA in essence CUE'd itself and ordered that "new" Hearing Loss C&P. I need the letters and notes to prove they knew it was cue from years earlier.  They are trying to hide them from me but I will overcome their attempts. I am a nasty bastard when you F with my money and getting that stuff SC to an EED means about 100K to me.

 

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@ Geeky

Have you ever considered  going to a Private state license ENT Specialist  and take your VA Audidology records and ask the specialist to read & comment on them with his impression (in detail) letter after he examines and test your hearing. (for probative evidence in your favor)

The specialist will need to follow the VA Guidelines for VA  S.C. Hearing loss and use the VA CD Maryland CNC Discrimination word test...he can call the VA for  the CNC Maryland C.D. or you can purchase it at your VAMC  for a small fee 6.00 bucks I think?

He needs to make sure to follow all the VA Guidelines and add that his hearing testing equipment is calibrated every 3 months and will offer the calibration companies name and copy of the last calabreation.

also the Dr will need to give his expert credentials and years of experience and his business hours

And add his phone # if they need to talk to him and his hours of open practice Monday thru Friday  9:00am to 5:00pm

you get all that   they don't come any better.

This should cover service connection and make it easy on them to give you a rating  and back date to accommodate your EED.

You can do this at R.O. Level ask for a R.O. DRO Hearing  with a rating specialist present at your hearing  between the two the DRO and the Rating specialist   it should go over in your favor.

Reason for this is  If there are any decreptices  the VA will use a specialist over a VA MD  or Audiologist every time. 

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2 hours ago, Buck52 said:

Have you ever considered  going to a Private state license ENT Specialist

@Buck52

The situation is convoluted and I chose not to get into the minutia in this thread. But to answer your question, at this point I don't need a Private ENT. I have been SC'd for HL but only this year. Thanks for the suggestion though. If this were "normal" a private IMO/IME would be appropriate.

My challenge in relation to the Hearing Loss is to get the EED to back when they first Denied SC, or when they Denied under my claim of New and Material Evidence in 2018.

What happened was the original C&P Doctor explicitly stated she only used my first 4 years of service when she rated my HL as not being SC. The damage however shows up in all my other enlistments that she literally and explicitly said she did not look at.

That same award gave me 70% for PTSD and 10% for Tinnitus. All of which were documented in my STRs starting in year 5 of my service. That means the VA had my full STRs in their possession at the time the Raters got the Audiologist C&P and did not catch that she only used 4 years.

In the section of the Award letter that denied the HL, the raters included all the numbers from my C&P EXCEPT the flat out statement that she only used 4 years of my record.

By not telling me that time period, and not having a living VSO or any idea that we had C-Files or could get them, I figured I was just not deaf enough to qualify and forgot about it until 2018..

So for this part of the problem I am filing a NOD for the EED and filing a CUE against the original award. One of them will shake out that EED for me.

But of course, as with all things involving the VA and my situation, nothing is simple or uncomplicated.

I spent 20 years getting the VA and Navy to acknowledge that I actually served. It had to do with the nature of my service. Every time I showed up at a VAMC or VARO with my DD-214 in hand they would deny they could prove my service. I went to 12 different VARO/VAMC combos before I finally found a way to force them to actually to use the right process to verify my particular service record.

They still cannot see parts of it that relate to my conditions.

When they did acknowledge me and accept my claim for compensation for PTSD, Tinnitus and Hearing loss, they also, on their own, sent me for testing for Vertigo & Sleep Apnea. They did an MRI, a VNG, and a sleep study.

They issued a CPAP for the SA. I have moderate to severe OSA.

These were all done BEFORE the C&P's for the stated claims were conducted. So the results were in my VBMS records when they rated me for PTSD, Tinnitus, and Denied SC for Hearing Loss. The VAMC New Orleans claims to have lost the SA records, The MRI records and the VNG records. Yet my C-FILE has hundreds of entries referencing all three.

What they did not do is tell me I had potential claims for those items; the Award letters were silent on SA & Vertigo.

At this time the Universe conspired to make my life more difficult. The VSO I had found that was able to get them to accept me was dying/died from Pancreatic Cancer and the American Legion did not replace him or have me go elsewhere.

As someone who did not know the processes I just let things go and this is my fault. I was just exhausted dealing with the VA and I had a life and business to run.

So with all that in mind.

The plan of attack for me is to first get the EED for the HL. Even at 0% the SC condition is lawfully mine at the EED.

I now have a 30% rating for the Vertigo. On that claim, I have two stages to complete, one is the NOD because the OTO got it wrong. I should be rated for Meniere's disease based on my VA medical records and my private records.

I should have a rating for a TBI as documented in my STR's and supported by my Empty Sella which they know about from the MRI they ran for Vertigo. They know my Vertigo is not from organic tumors or physical damage to the nerves and other visible parts of the ear. They know my HL is not organic or from visible damage to the ears.

I have just had another VNG and that buttresses the reality the cause of the vertigo is not visibly organic.

That leaves a diagnosis of Meniere's as the appropriate diagnosis.

when that changes I will attack that for an EED.

If I get that EED, that bumps my initial rating to 100% +70% for those two items alone.

Add in the SA which I am going to file a claim for now and then ask for an EED, would put me at 100+70+50 from years ago.

That would put me as SC for 100% + SMC(s) from way back when and that means over 100k in retro pay.

In the alternative, even if I don't get the Meniere's EED, but I do get the SC for SA I will be SMC(s) now and then fight for the EED on the SA.

None of these claims is about interpreting medical diagnosis or opinion. They are all about the VA not doing a thorough review of my records and doing their Duty to Notify, Assist and even Infer. I am on solid 4.6 grounds for all of them. I also have a First Court of Appeals decision that states my SC is a property right once granted. That gives me the standing to fight in the Courts outside the VA system.

I will be filing challenges to the Doctor's competency and to Challenge to Administrative Process Presumptions to preserve them for use at Higher Courts if need be.

That is more than anyone wanted to know...sorry, just trying to fill in the gaps.

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Roger that Geeky, sorry to hear all about that  but your on the right track keep up the fight!

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    • Yes 

      After a PTSD/Unspecific MDD Diagnose From the VA Dr's

      The gold standard for diagnosing PTSD is a structured clinical interview such as the Clinician-Administered PTSD Scale (CAPS-5). When necessary, the PCL-5 can be scored to provide a provisional PTSD DSM 5 diagnosis.

      Any clinical clinician such as MD ,Psychiatrist even a L.C.S.W. (Certified)can perform the Diagnostics Evaluation Employed by the the VA

      ...They just need to figure out your symptoms and put together a list of your symptom's that you possess or show from the evaluation...I am not 100% Sure just how they do this ?

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        you learn the tools to cope with and depending how severe your symptoms are ? 

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      The therapy works  even if we think it don't,  I recommend Therapy for all PTSD Veterans  it could very well save your life once the correct therapy is in place and the Veteran makes all his Clinical Appointments.

      I still have Combat PTSD it probably will never be cured completely but we can learn the tools it takes to cope with this horrible diseases 

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    • No timeframe gotta love that answer it’s even better when you ask 1800 people or call the board directly they’ll say you’ll know sooner then later. I had mine advanced and it was about 2 months later until I had the decision in my hand which seems forever but in the present system in 2016 lightning fast...
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    • Thank you @GeekySquid for your reply. 

       

      I have redacted personal information for my documents listed below. 

      I look forward to your reply. 

      HEADACHE STR 2006 copy_Redacted.pdf

      HEADACHE-DBQ.pdf

      Pages from Original Denial-Grant Reasons_Redacted.pdf
    • Hello Defenders of freedom!

      I have a question pertaining to this denial for headaches. The decision letter is quoted below. 

       

      3. Service connection for headaches.

      "We may grant service connection for a disability which began in military service or was caused by some event or experience in service.

      Your STRs are negative for any treatment of or diagnosis of headaches. On your post-deployment exam in 2005 you denied any headaches. On separation, you denied any headaches. VA treatment records are negative for any treatment of or diagnosis of headaches. On VA exam, the examiner stated there was no evidence of any residuals of a traumatic brain injury.

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      From my understanding these 3 points must be overturned to successfully win a CUE case:

       (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at that time were incorrectly applied; 

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      and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question.  

      @Berta, or veterans out here who have knowledge/experience, tell me what facts you think would be needed to prove this denial for headaches was an error? 
      • 14 replies
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