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My most recent claim is complete and it appears most evidence was ignored

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JKWilliamsSr

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I submitted my claim to reopen on Sept 16th and received a decision on October 16th. My claim is in two parts because I screwed up when I filed my claim.   I has several claims that were denied some time back and we are well past the appeal period.  I did not realize I needed to file a supplemental claim for those.  I realized it after checking the status of my claim a week after submission and noticed those claims were removed.  I filed a supplemental claim on Sept 22nd for those claims before I even received the letter informing me.  I have a C&P exam on Nov 5th for those claims. 

  I received a bump from 30% to 50%.   I received my decision letter and to be honest I feel as though the pretty much ignored most of the evidence I submitted or at a minimum picked and chose what they wanted to consider.  When I filed my claim I submitted a good amount of evidence.  Now they generically list my evidence on the decision letter but most of the evidence was not even mentioned in the actual decisions.  I used the Ellis Clinic to provide an IME and I thought it was solid.  

I am uploading the decision letter, my IME report and the evidence list I submitted (on a 21-4138) that breaks down all the evidence I submitted. 

Going to go the HLR route. 

 

decision letter no personal info.pdf IME no personal info.pdf Evidence List no personal info.pdf

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I took a quick look and think I know why the VA gave you those ratings. The IME doc provided a bit of a vague overview and did not reference specific details to tie it all together. The VA DBQ's have fields to help ensure that those details were not missed, but the doc wrote up a custom report which may have missed a lot of the factors and made it harder for the VA to tie it all together. You and I served around the same time and I know my medical records were handwritten. The VA counts on the doctor to decipher the handwriting, abbreviations, etc... and put it into specific terms they can understand (i.e. match it up to the rating criteria). They have to quote specific instances instead of just saying this happened a few times.

For disabilities involving ROM, they must include measurements in degrees. The VA stiffed you with 10% for each knee by quoting 4.59 because the doc did not fulfil the requirements of 4.40, 4.45, deluca and mitchell rulings. They have to measure exactly where painful motion begins and also your max possible ROM. I didn't see the doc do that. He just stated which SC disability % and diagnostic code/description without applying the terms of the schedule, but where is the actual proof?

For asthma, just stating how it was treated is not enough. it should have stated you were treated by doctor so-and-so on [insert dates here] with systemic steroids [name the steroids]. Keep in mind that going to 60% is considered temporary and expect the VA to bring you back in about a year for re-eval. If you can continue to prove you took them 3+ times during that period, they should continue the rating.

For items which were increase requests, be sure to consider that you can actually go back and use medical records 12 months prior to the intent to file date. If the proof is there, they are supposed to make the increase effective back to that date. 

Go back and double-check everything. See if you can connect those dots. If you can, you should just be able to put together a letter with a packet of relevant treatment dates. Tie it all together and spoon feed the VA. They probably will just review, verify, and correct the rating errors.

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1 hour ago, Vync said:

I took a quick look and think I know why the VA gave you those ratings. The IME doc provided a bit of a vague overview and did not reference specific details to tie it all together. The VA DBQ's have fields to help ensure that those details were not missed, but the doc wrote up a custom report which may have missed a lot of the factors and made it harder for the VA to tie it all together. You and I served around the same time and I know my medical records were handwritten. The VA counts on the doctor to decipher the handwriting, abbreviations, etc... and put it into specific terms they can understand (i.e. match it up to the rating criteria). They have to quote specific instances instead of just saying this happened a few times.

For disabilities involving ROM, they must include measurements in degrees. The VA stiffed you with 10% for each knee by quoting 4.59 because the doc did not fulfil the requirements of 4.40, 4.45, deluca and mitchell rulings. They have to measure exactly where painful motion begins and also your max possible ROM. I didn't see the doc do that. He just stated which SC disability % and diagnostic code/description without applying the terms of the schedule, but where is the actual proof?

For asthma, just stating how it was treated is not enough. it should have stated you were treated by doctor so-and-so on [insert dates here] with systemic steroids [name the steroids]. Keep in mind that going to 60% is considered temporary and expect the VA to bring you back in about a year for re-eval. If you can continue to prove you took them 3+ times during that period, they should continue the rating.

For items which were increase requests, be sure to consider that you can actually go back and use medical records 12 months prior to the intent to file date. If the proof is there, they are supposed to make the increase effective back to that date. 

Go back and double-check everything. See if you can connect those dots. If you can, you should just be able to put together a letter with a packet of relevant treatment dates. Tie it all together and spoon feed the VA. They probably will just review, verify, and correct the rating errors.

I appreciate the info.   Now reading the letter the VA stated that they applied Deluca and Mitchell but I do not think they properly applied them.  I think they just threw that in there   I had a C&P with LHI and was examined by a nurse practitioner.   The NP did ROM testing but the results are not listed anywhere in my letter and that is baffling to me.  She was training another NP and explained the reasons why certain measurements were important.  Another think that was not considered was ROM based off of pain due to flare up. This was a question that was asked of my by the NP to where I told her that by the end of the day I am in so much pain I can barely walk.   By the end of the week it is so bad that I have to rest all weekend just to be ready for the next week.  Nothing I told the examiner is listed in the letter.  To compound on the issue is that I submitted a personal statement that says what I told to the examiner.  This was submitted when I filed in September and was on record before the C&P exam. 

As far as the Asthma goes I knew 60% was a pipe dream and I am ok with that.  Last year was a pretty bad year for me Asthma related but I am getting it under control.  I don't always have to go through the periods of getting steroid treatment every year.  It is sporadic.  Some years are really bad and others are ok.  So I am not going to fight the Asthma rating.  As you said.....60% is more temp than anything 

The Rater also made some error.  One was where the rater stated that Dr. Ellis diagnosed me with Diabetes.  He did no such thing. He only confirmed that I had diabetes and put in my letter that I was diagnosed in Dec 2018 and I was by my primary doctor (civilian) I uploaded those records and the lab reports that show my A1C levels which warranted diabetes.  I also submitted my medication list that showed I took metformin. 

Now I used obesity as an intermediate step for diabetes.  My inability to exercise to has led to my weight gain which led to my obesity.  Now I claimed my inability to exercise was do to the pain in my feet, ankles, hips, back and knees.   Since I am only service connected for my knees (so far) the rater pretty much discounted that because I was not service connected for all of them. 

Another thing that throws me off is that the rater put in there that Dr. Ellis did not state if there are other ways I would have developed diabetes.  That is a new one for me. Since when is it required for me the veteran to provide evidence of possible other ways of obtaining a disability. 

 

 

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Its just another "bogus" denial, like millions of others.  Dont take it personally, this is often done, especially at the VARO level.  Berta says that the VARO employees cant read.  I think they can read, but only Chinese, since they probably save money sending these to China to stamp "claim denied" on them.

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1 hour ago, JKWilliamsSr said:

Now reading the letter the VA stated that they applied Deluca and Mitchell but I do not think they properly applied them.  I think they just threw that in there   I had a C&P with LHI and was examined by a nurse practitioner.   The NP did ROM testing but the results are not listed anywhere in my letter and that is baffling to me. 

Like @broncovet said, this happens all the time. Back in the late 1990's, the VA C&P examiner noted ROMs for where pain began and max. The VARO quoted the ROM measurements in the decision, but failed to apply Deluca. Got a CUE in now to get that fixed. I would assume the VA should still quote the ROM measurements in decision letters. You could probably request a copy of the VA's C&P exam results/DBQ in order to see the exact values for yourself. One more thing about ROM - the examiner is supposed to use a goinometer (like a small protractor) to get measurements in degrees. Out of maybe 5 or 6 ROM-based C&P exams, I only had two who used one. I asked one doc who didn't use one about not using it and he balked saying he didn't need one. When I got a substandard rating, I reported that fact and got a new C&P exam yielding the correct rating.

1 hour ago, JKWilliamsSr said:

Another think that was not considered was ROM based off of pain due to flare up.

Yes, the VA is supposed to consider flare ups. However, they often overlook it. They rely on you going to a doctor to be diagnosed with a flare up. However, not all docs will note the VA-required ROM measurements showing where pain began and max. I prefer to go out of my way to ask my doc to note it and then I tell the VA about this when submitting claims.

1 hour ago, JKWilliamsSr said:

As far as the Asthma goes I knew 60% was a pipe dream and I am ok with that.  Last year was a pretty bad year for me Asthma related but I am getting it under control.  I don't always have to go through the periods of getting steroid treatment every year.  It is sporadic.  Some years are really bad and others are ok.  So I am not going to fight the Asthma rating.  As you said.....60% is more temp than anything 

Don't discount this! Yeah, it's temporary, but you could be missing out on a lot of money 💰💰💰.

Based on the ratings on your decision letter, your combined rating calculates to 48.97% which rounds up to 50%.
30% asthma
19% bilaterals (10% left knee + 10% right knee = 19%)
10% sinus

Now what if your asthma goes from 30% to 60%? The new combined rating would be 70.84%, which rounds down to 70%.

For a single veteran with no dependents, a 70% rating would pay $1,403.71 vs. a 50% rating paying $879.36. That's an additional $524.35/month which totals $6,292.20 over the next year! And that estimation doesn't even factor in any potential retro they may have to pay on top of that for the higher rating. Of course, if you are married and have dependents, it goes up even more!

That's a lot of pizza to miss out on. If it were me, it would definitely be worth it to go back to the date of your intent claim, then go back 12 months before that and check treatment records to count the number of times received systemic steroids were prescribed to treat asthma.

I was in the same boat as you for quite a while where I went in and out of the 60% criteria, but I went ahead and filed anyway. Eventually, after having about six consecutive years where I met the criteria for 60%, my doc just said that my condition was not expected to improve and the rating became static.

Worst case scenario, you get 60% for a year and enjoy the increased disability payments during that time. The VA brings you back and proposes to reduce and you go back to 30% and the 50% combined rating payment. But what if you don't improve? Keep in mind for an increase, if you already have the proof in your records that you meet the criteria for a higher rating, the VA probably will not send you off for a C&P exam.

 

2 hours ago, JKWilliamsSr said:

The Rater also made some error.  One was where the rater stated that Dr. Ellis diagnosed me with Diabetes.  He did no such thing. He only confirmed that I had diabetes and put in my letter that I was diagnosed in Dec 2018 and I was by my primary doctor (civilian) I uploaded those records and the lab reports that show my A1C levels which warranted diabetes.  I also submitted my medication list that showed I took metformin. 

Now I used obesity as an intermediate step for diabetes.  My inability to exercise to has led to my weight gain which led to my obesity.  Now I claimed my inability to exercise was do to the pain in my feet, ankles, hips, back and knees.   Since I am only service connected for my knees (so far) the rater pretty much discounted that because I was not service connected for all of them. 

Another thing that throws me off is that the rater put in there that Dr. Ellis did not state if there are other ways I would have developed diabetes.  That is a new one for me. Since when is it required for me the veteran to provide evidence of possible other ways of obtaining a disability. 

This might be a case where you need to spell this out and connect those dots for the VA.

 

Here are some additional tips:

Tip: You were 30%, but are now 50%. If you paid any copays to the VA for treatment of non-SC conditions back to the date 50% became effective, call the VAMC business office and ask for those to be reimbursed. This also applies for travel pay for treatment of non-SC conditions by the VA. Once you are 50%, the VA cannot charge you any co-pays when they treat you and should give you travel pay for any treatment visit.

Tip: All the joint pain and inability to live life as before due to SC disabilities is a downer. If you had similar issues, consider looking up the rating criteria and possibly filing a mental health claim secondary to your SC disabilities. Just don't self diagnose. Phrase it vaguely so the doc can diagnose.

Tip: If medication used to treat your SC disability causes another disability, you can file a secondary claim. For those of us with joint disabilities, the military and VA love to give NSAID meds like ibuprofen or naproxen. Those can do a number on your digestive plumbing if you take them long term and leave you with acid reflux, GERD, or worse. If you are in the same boat, consider researching and possibly filing a claim for it.

It can all add up...

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7 hours ago, Vync said:

 

Tip: If medication used to treat your SC disability causes another disability, you can file a secondary claim. For those of us with joint disabilities, the military and VA love to give NSAID meds like ibuprofen or naproxen. Those can do a number on your digestive plumbing if you take them long term and leave you with acid reflux, GERD, or worse. If you are in the same boat, consider researching and possibly filing a claim for it.

 

Worst, is that you have two kidneys that filter your blood and can be damage from NSAIDs. So many people pop NSAIDs like candy not knowing the damage they are causing to their kidneys. Every one that is reading this STOP taking NSAIDs. Your body isn't healing itself at all if you keep pushing these poisons into it. 

NSAIDs only block the pain receptors in your brain and not cure the underlying problem. 

"You" have to go back to the basics. So what causes pain or degrade over time? 

Glucosamine been proven to work for decades on horses and I take this for vertebrae discs and cartilage that's not just in your spine but through out your body joints.

Vitamin C is by far the only one super vitamin that covers a lot of illnesses.

Water. Really is this a joke? The fact that people drink battery acid (soda) like water today. 

95% of foods today is processed and or contains corn syrup/HFCS.  That maple syrup you just poured all over your waffles or pancakes or french toast is not real maple syrup if you read the label on back.

Weight lifting. So you want to look like Arnold today but what about ten years from now when you can't even walk straight and have to zig-zag.

Your mind can't heal the body if you don't allow it. Not saying going vegan. But eat like a wolf

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As I go over this ridiculous decision letter there is one think I hope  some can help with.   I am truly trying to understand the logic the rater gave when denying diabetes.  The rater pointed out a couple things and I wonder if they just threw them in there because it makes no sense to me. 

1.  The rater stated " It also appears Dr. Ellis opinion was based on your history alone as that is the only source he noted in rendering his medical opinion regarding your diabetes".   This is in violation of Coburn v. Nicholson which states "a medical report/opinion cannot be rejected solely because it was based upon the veteran’s history without providing reason and bases as to the credibility of the statements"  It also makes no sense to me because the VA regularly will make a decisions via ACE exams which is only a review of the records if I am not mistaken. 

2.  The rater stated "Dr. Ellis also did not indicate the possibility or probability of incurrence of your diabetes if these joint conditions did not exist." .  Now I may be mistaken but I think this puts an undo burden on the veteran.  I have never heard of an instance where a veterans representative was required to provide additional theories on what may have caused a disability.  It is as if the rater is stating that I am also required to provide info that could very well go against my claim.  I think this is in violation of Gilbert v. Derwinski which states "Veteran need only demonstrate that there is approximate balance of positive and negative evidence in order to prevail on claim for benefits; entitlement need not be established beyond reasonable doubt, by clear and convincing evidence, or by fair preponderance of evidence."

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