Denied without actually looking at medical records

[11bjohnny]

Good afternoon, 

I am hoping for some advice on how to proceed or what I need to do and how to do it.

Back story:
I spent 5 years in the Infantry with one tour to Iraq. I broke my leg and that lead to me getting an MEB. I submitted a claim for pes planus and hypertension due to issues that have been getting worse for some time. Because I couldnt figure out how to add attachments to the claim in Ebenifits, I printed the form and mailed it along with my first and entry and exit physicals (to show that I had developed flat feet while in the service), blood pressure readings and a prescription history for blood pressure meds issued while in, and one statement each to support the claims. (These were to the affect of, we rucked a lot and carried heavy loads overseas for my feet, and explaining that I have been borderline hypertensive since I was 20 while in the service and I pointed to dates for BP readings from service and shortly after discharge...)

The initial claim was denied because I submitted using an outdated form (that I printed autofilled with all my claims info from EBenefits the day I put it in the mail ... go figure that one...). After getting the denial, I called to see what I had done wrong, and was told that I could resubmit online, but I didnt need to resubmit the supporting documents as everything had been scanned into my file when the first iteration was received (they were even able to read me off some of the info that I had sent). So I resubmitted online through the new va.gov website. 

This time the process went from new claim to denial in just over a week! The denial letter came stating there is no current diagnosis for pes planus (a VA doc JUST (within the past three months) provided me insoles to treat this condition...), and that neither event was shown to have occurred in service by a review of my Service Medical Records. This is correct because I thought having foot pain went with being a grunt and the BP meds came from the psychiatrist and the PA refused to ever address the issue. 

My questions, I know that I need to file a NOD. I have been waiting for my C-File since May of this year... Should I wait until I receive my C-File to submit the NOD? Submit a NOD now stating that I disagree with the two denials?

I feel that had the evidence I sent been reviewed, they would have at least sent me to get C&P exams.... 
The last question... Should I just find a DR to complete a DBQ for me and file a claim to reopen these denials?...

Thanks for any advice. 

[broncovet]

You are looking at the "old" nod forms..download the new ones which require you to specify HLR (Higher level Review), SCL (Supplemental Claim lane) or appeal directly to the BVA.  Get the new forms.  The VA loves to deny if you use the wrong or older, discontinued forms.  

You asked, 

Quote

If someone doesnt have a primary care doc other than the VA, how does one go about getting a nexus letter? 

You have to get an IMO/IME from a private doctor if your VA doc wont give you a nexus letter.  They often wont.  

You will likely have to pay for the IMO/IME, however, if you have to pay 500 to 2000 dollars to get 3000 per month forever, isnt that a great deal?  

It is sad that people who can afford an IMO get benefits, while those who can not afford them do without.  

There are a few law firms who "may" pay for an imo/ime up front, then recover those costs when you get your retro check, that is, if all the law firm thinks that you need is a missing nexus.  

You have to have an "in service event" before you can get a nexus letter.  Why?  Well if you have no in service event, the nexus letter is irrelevant.  You must have all 3 caluza elements for your claim to succeed and nexus is one of those.  In service event is another, so, if you dont have  nexus, it wont do any good to get a nexus if you have no in service event.  Its all caluza 3 elements or nothing.  

Many Vets continue fighting without a nexus letter, and VSO's should not let them do that.  They should tell the Vets no nexus..no caluza elements...no benefits no matter how many times you appeal.  But, if you have the caluza elements you can still get denied especially at the RO level.  

My advice:  Review your medical records.  You can do that without the full cfile, just go ask your "release of information" office at 

VAMC for them and they should arrive in a few days.  Look in your C and P exams for a statement like, "the veterans xx condition is at least as likely as not" related to yy event which happened in service".  

That is your nexus letter.  

Then appeal, reminding you you must have all 3 caluza elements for your claim to succeed.  Make sure you have them, hire an IMO if necessary.  

Go ahead and appeal SCL lane.  This allows you to get an IMO and submit it.  HLR does not allow you to submit new evidence.  

[broncovet]

Welcome to "Glitch City" at VA.  Yes, you need to file a NOD.  

You posted:

Quote

After getting the denial, I called to see what I had done wrong, and was told that I could resubmit online, but I didnt need to resubmit the supporting documents as everything had been scanned into my file when the first iteration was received (they were even able to read me off some of the info that I had sent).

Whenever I hear those words, "I was told...."  I cringe.  Tatoo this on your arm if you need to remember it:

Quote

The VA is KNOWN to have "trust issues" with Veterans.  Trust them at your own risk.  

Ronald Regan said, "Trust but verify".  You need to verify what is in your cfile NOW, not necessarily when you made that phone call.  A favorite denial technique of VA is to lose your important evidence.  

Its some trouble to verify what is in your file, but its more trouble not to because VA can then just deny you AGAIN.   I have had 12 trips to the BVA since 2002, so I have learned the hard way.  

Get in touch with your VSO, or other representative.  Ask him to see your current VBMS file so you can see, with your own eyes, the evidence VA has.  You dont need to wait for a paper copy, tho that is handy also.  

If your VSO can not show you the VBMS file (aka the cfile online in real time), then call other VSO's to see if they can.  Having VBMS access requires some jumping through hoops for the VSO, so he may or may not have completed same.  

You need to decide which lane to appeal, and its important.  

The HLR is if you know, in fact, VA has all your evidence.  

The SCL is if you are pretty sure there is missing evidence.  

The VA wants you to submit "the new evidence" with your NOD, and they like to deny those if that evidence is already there, regardless of the merits of your case.  

Im not suggesting you delay filing a nod until you get your cfile, instead, get your hands on your VBMS file right away, and file.  

[11bjohnny]

1 hour ago, broncovet said:

Welcome to "Glitch City" at VA.  Yes, you need to file a NOD.  

....

Get in touch with your VSO, or other representative.  Ask him to see your current VBMS file so you can see, with your own eyes, the evidence VA has.  You dont need to wait for a paper copy, tho that is handy also.  

....

You need to decide which lane to appeal, and its important.  

The HLR is if you know, in fact, VA has all your evidence.  

The SCL is if you are pretty sure there is missing evidence.  

....

Im not suggesting you delay filing a nod until you get your cfile, instead, get your hands on your VBMS file right away, and file.  

Thanks for the reply @broncovet, 

I have not been working with a VSO on my claims, the last one went through super painlessly with a positive outcome! I assume there is no way for us mere mortals to view the VBMS without a VSO? 

How long is the typical process to get setup with a VSO, and is it worth it if I expect my C-File soonish? I should have a copy of my C-File by the end of January (estimated on VA.gov).

So I understand, I should take no action until I am sure what information the VA has as that may invalidate one appeal or the other.

 

[broncovet]

Veterans are not allowed to see the VBMS file.  (Unless you could get your attorney, VSO, or non attorney practioner to let you look on.)    

The VA expects us to guess how much of our evidence they have deleted, lost, or they never bothered to read, by specifying HLR, SCL, or one of the BVA with or without new evidence.  

I hear you ARE able to switch lanes if you guess wrong.  But dont take that promise to the bank along with any of the other VA promises.  (Shinseki promised there would be no Veteran homelessness by..what year was it?  2015??).  

Waiting, say, six months to file a nod is terrible, too.  Maybe if you are not doing anything by 2025, you can expect a board decision.  

Here is a "hack" I figured out.  Remeber, they lowered the "bar" for new evidence.  It used to be called "new and material", but now the standard is "new and relevant". 

This suggests, in the past, the new evidence we submitted needed to be "outcome determinative" (Ie, "material").  

However, now the "bar" has been lowered to "relevant".  "New relevant" evidence suggests that, even if the "new evidence" wasnt enough to meet the "material" standard, you could have other evidence that would combine with your new evidence to be enough to change the outcome.  

So, here is my hack:  File a nod with the SCL lane, and submit some new relevant evidence with it.  

Of course, I did that and got denied anyway, (I appealed) and am currently at the BVA, in no small part because they did not read the evidence I did have.  

Sending a nod in HLR may cut your own throat, when you dont know what VA evidence the VA actually has.  

GRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR.  

[11bjohnny]

Makes sense... So I may or may not be able to get in touch with a VSO that would allow me to see if the evidence is in there.... And I may be better off just waiting for the C-File to show up (should be less than four months since the decision was sent).

/shrug I guess it is what it is.

[broncovet]

I would not wait for the cfile to file a NOD.    VA LOOOOOOOOOVVVVVVVVES to force you to wait until after the 1 year appeal deadline, by delaying sending you a cfile beyond the one year appeal period.  

The only the VA loves MORE than delaying your claim?   Delaying it still longer, sometimes, even after you have gotten the decision.   

Edited October 28, 2019 by broncovet