Is this a Clear and Unmistakable Error (CUE) ?

[dwbell99]

FACT 1: Veteran's left ankle is 10% service connected.

FACT 2: Submitted claim: It is this provider's medical opinion (My Doc / IMO) that Veteran's chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not  50% secondary connected (due to abnormal gait caused by service connected left ankle disability).

FACT 3: The DECISION of the Rating Decision: Service connection for degenerative disc disease, lumbar spine (claimed as back) is denied. REASON: We have denied your claim for service connection for degenerative disc disease, lumbar spine (claimed as back) since this condition neither occurred in not was caused by service.

FACT 4: Favorable Findings of the Rating Decision:
- Private examination for Dr. IMO (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability).

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Claim History
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1. Submitted claim 7/19/2016: Service Connected back.

2. Rating Decision 11/29/2016: Service Connected back denied.

3. Submitted corrected claim 11/18/2017: Back is more likely than not 50% secondary connected (due to abnormal gait caused by service connected left ankle disability).

4. VA received claim 11/18/2017: Existing appeal for back so (reopen) appeal.

5. Rating Decision 11/21/2018: Service connection for back is denied. NOTE: Was the same decision as previous Rating Decision 11/29/2016 and did not address the corrected claim that back was secondary service connected to service connected ankle.

Edited October 21, 2019 by dwbell99

[Berta]

Good ....they did have that medical abstract but probably could not read it.

"Where did they get the words" less secondary" from?"

****** ANSWER: the VA rater changed IMO's statement.

Outrageous- I have been victimized by that VA crap myself and I raised HELL.

Raters are not allowed to manipulate documented opinions. I am assuming- have not time to read your other downloads , that this is a fact, tht they changed the IMO opinion.

You should file an IRIS complaint. The Complaint  box  is a pop down.

I had back problems for years ( I raised livestock and did lots of heavy work,) but scans of my back revealed nothing wrong with it, even a nuclear scan, that revealed my back , and  spine is over 30 years younger than it should be!

My problem was with my ankles and flat feet, and treatment that corrected the back problem for me, but Podiatrists know full well how improper foot  conditions can affect the alignment of the back- This is not exactly what your issues are-but it all makes sense, that all of your conditions ,as your IMO doctor state, can cause abnormal gait due to a SC ankle disability.

A abnormal gait might not even be very noticable to anyone, and usually shoe wear, the bottom of the shoe, reveals how serious it is.

"5. Rating Decision 11/21/2018: Service connection for back is denied. NOTE: Was the same decision as previous Rating Decision 11/29/2016 and did not address the corrected claim that back was secondary service connected to service connected ankle."

I have to leave soon and don't have time to read the whole thread again- but did they list the Corrected IMO as Evidence? If not, and if they had it, that is a CUE. ( Under 38 CFR 4.6)

 

 

 

[dwbell99]

14 hours ago, Berta said:

Good ....they did have that medical abstract but probably could not read it.

"Where did they get the words" less secondary" from?"

****** ANSWER: the VA rater changed IMO's statement.

Outrageous- I have been victimized by that VA crap myself and I raised HELL.

Raters are not allowed to manipulate documented opinions. I am assuming- have not time to read your other downloads , that this is a fact, tht they changed the IMO opinion.

You should file an IRIS complaint. The Complaint  box  is a pop down.

I had back problems for years ( I raised livestock and did lots of heavy work,) but scans of my back revealed nothing wrong with it, even a nuclear scan, that revealed my back , and  spine is over 30 years younger than it should be!

My problem was with my ankles and flat feet, and treatment that corrected the back problem for me, but Podiatrists know full well how improper foot  conditions can affect the alignment of the back- This is not exactly what your issues are-but it all makes sense, that all of your conditions ,as your IMO doctor state, can cause abnormal gait due to a SC ankle disability.

A abnormal gait might not even be very noticable to anyone, and usually shoe wear, the bottom of the shoe, reveals how serious it is.

"5. Rating Decision 11/21/2018: Service connection for back is denied. NOTE: Was the same decision as previous Rating Decision 11/29/2016 and did not address the corrected claim that back was secondary service connected to service connected ankle."

I have to leave soon and don't have time to read the whole thread again- but did they list the Corrected IMO as Evidence? If not, and if they had it, that is a CUE. ( Under 38 CFR 4.6)

 

 

 

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"5. Rating Decision 11/21/2018: Service connection for back is denied. NOTE: Was the same decision as previous Rating Decision 11/29/2016 and did not address the corrected claim that back was secondary service connected to service connected ankle."
 
I have to leave soon and don't have time to read the whole thread again- but did they list the Corrected IMO as Evidence? If not, and if they had it, that is a CUE. ( Under 38 CFR 4.6)

 ****** ANSWER: No, The Corrected IMO was not listed as EVIDENCE but the proof that they had it is they referred its contents in the Rating Decision of 11/21/2018 by stating what the IMO said in it. 
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Do you have a link for the IRIS complaint? 

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Also found this instance that the VA rater changed the VA examiners opine.

The VA rater manipulated the VA examiners opine by changing it from rating "claimed bilateral lower extremity sciatica" to "claimed condition" so that it would apply to his "degenerative disc disease, lumbar spine (claimed as back)". 

FROM: Therefore, any currently diagnosed condition(s) related to the veteran's claimed bilateral lower extremity sciatica, is less likely than not (less than 50 percent probablility) proximately due to or the result of the veteran's left ankle osteoarthritis.

TO: On VA examination dated January 29, 2018, the examiner opined that your claimed condition is less likely that not (less than 50 percecnt probability due to or the result of your service connected condition.

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After I submit this Supplemental Claim for my back. I have another one that is due by 3/29/2010 for my knees,. It  also has multiple issues.

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Edited October 23, 2019 by dwbell99
spelling

[Berta]

"Do you have a link for the IRIS complaint? "

Go to https://www.va.gov/

Click on the Contact Us button

Click on the Ask a Question button

Fill out  all of the rest of the form.

I always suggest asking for an email reply instead of a phone call.

 

[Berta]

I noticed the Supplemental claim states this:

"6. Favorable Findings warrants veteran's entitlement to secondary service connection for back and bilateral sciatica since it said that "Private examination for Dr. REDACTED (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilaterla lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability)" 38 CFR § 3.104 - Binding nature of decisions"

I had assumed, in prior reply that the VA manipulated the exact wording of your IMO by stating the "less" part

If they did that too must be addressed in the Supplemental claim.And in your IRIS complaint.
 

[dwbell99]

Berta, 

1. How is this for a IRIS complaint?

VA Rater manipulated the VA examiners medical opinion by making two changes  (1) from rating "claimed bilateral lower extremity sciatica" to "claimed condition" so that it would apply to his "degenerative disc disease, lumbar spine (claimed as back)" and (2) from "is less likely than not (less than 50 percent probability) proximately due to or the result of the veteran's left ankle osteoarthritis." to "is less likely that not (less than 50 percent probability due to or the result of your service connected condition.".

    VA Examiners medical opinion: Therefore, any currently diagnosed condition(s) related to the veteran's claimed bilateral lower extremity sciatica, is less likely than not (less than 50 percent probability) proximately due to or the result of the veteran's left ankle osteoarthritis.
    
    VA Raters comments in REASON FOR DESISION in Rating Decision: On VA examination dated January 29, 2018, the examiner opined that your claimed condition is less likely that not (less than 50 percent probability due to or the result of your service connected condition.

2. Can you review the Main Points of my proposed Supplemental Claim (see attached file)

Back Supplemental Claim Main Points.pdf

Edited October 23, 2019 by dwbell99
add file

[Berta]

I suggest under# 6 in the download that you use 'Independent Medical Opinion' from Dr .........instead of the acronym "IMO."

I think this is well done, but I also think you might have to consider getting a stronger IMO ( actually an IME)

from a doctor fully versed in all of these conditions, and who can rule out any other etiology or cause for the secondary conditions that you claim are due to the SC ankle condition.

I have very little experience with your  type of back conditions. Others here have those conditions. I know foot disabilities can lead to many other problems because of the fact that they throw off the spinal alignment.

I mentioned here before and  on the older hadit board, that BVA awarded TDIU for a vet, who started out with SC flat feet, but he had considerable medical evidence that this affected his knees, hips, and back and he could no longer work due to the secondaries the SC feet had caused.

Nothing is impossible but it can often take a lot of medical evidence.

I never suggest IMO/IMEs without the fact that I needed them for one claim I had, so I got 3 and even ordered a fourth but the award came before I even got the 4th IMO. 

So I know how expensive it can be ,but it is often the best investment any veteran can make. It is very difficult for the VA to go against a strong IMO/IME from an expert in the field of the specific disability.(ies).

 

 

 

Edited October 24, 2019 by Berta