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

[dwbell99]

1 hour ago, Berta said:

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).

 

 

 

*. I changed #6 from IMO to Independent Medical Opinion.

*. I have requested medical opinions from my pain doctor and my back surgeon. Asked both to comment on (1) back secondary service connected to the service connected ankle, (2) ankylosis/forward flexion in my back (for rating purposes), and employabiliity due to survice connected back (after awarded back secondary to ankle).

*. Researching court cases to support my 'concerns' in the Supplemental Claim.
4. VA examiner's medical opinion is of questionable probative value because she/her:    
    (d) competency is suspect since she her medical clinical specialty is Pediatric Emergency Medicine.
            "Evidence from a source that is not competent to establish a fact does not have probative value on that fact." 
                M21-1, III.iv.5.A.2.e.  Determining the Probative Value of Evidence
            "Evidence from a source not having the requisite competency to offer a particular type of evidence has no probative value."
            M21-1, III.iv.5.A.1.f.  Overview of Evaluating Evidence

 

Edited October 24, 2019 by dwbell99
deleted repetitive info

[Berta]

Good , but they need to make a strong statement as to how your SC ankle problem has medically caused these affects to your back, etc.with no other possible cause (etiology)