Supplemental Claim Denied w/IMO, High-Level Review Next?

[lawbro]

Hi All

To make a long story short, last year the VA granted my right-knee tendinitis 10% but said my left-knee was NOT service connected. I reached out and obtained an IMO from Dr. Anaise whose IMO opined that either my left-knee tendinitis WAS service connected or that it was secondary to my service connected right-knee. 

I filed a supplemental claim at the end of June and just received the decision back that they stuck with the original decision to not grant me anything for my left-knee tendinitis, stating that it was still not service connected. 

How should I go about the next step in the process? I seem to read a lot that High-Level Reviews are a waste of time and perhaps go straight to BVA. Also, should I also look into getting an attorney for the High Level Review or just wait to see if it goes to BVA or not?

What do we believe is the best way to go about this?

[vetquest]

I would see about going straight to the BVA.  Your supplemental claim has been denied and it will most likely be denied at HLR too.  The BVA is where you can win as they will read all of the evidence and make an informed decision.  As far as reaching out to a lawyer you might have some issues getting represented.  Your claim is small and lawyers need to make money to stay in business.  Not that they are bad but they need to make a living too.  You might check into a nonprofit to represent you.  @Buck52, and @broncovet might have some suggestions for you.

Good luck on your claim and never give up.  The VA does everything to make you quit and if you do they win.

[Vync]

Keep in mind you need three things for SC, which it sounds like you have already:
1. Event/injury in service or current SC disability
2. Current diagnosis
3. Nexus connecting 1 and two
 

Before choosing HLR or BVA, I personally would recommend you post the text from the decision letter. Be sure to redact/exclude any personal or unrelated details. The Reasons and Bases section will explain the VA's reason for denying your claim. The members here can hopefully help make some sense of why the VA denied your claim and offer advice.

I just remember when I went to the BVA it took several years. Not sure if you want to wait that long at this point

One thing I learned is that HLR is pretty much the same as CUE, which means Clear and Unmistakable Error. The big difference is that for CUE there are strict requirements and your claim have been decided and finalized (outside of regular appeal period), but you are still probably within the HLR filing window. You could request HLR and ask them to review the existing rating for errors. They are supposed to be more experienced employees (not necessarily DRO's) that will go back and take a fresh look at everything to see if it was handled correctly.

Last month I sent in an HLR request based on CUE. Instead of just letting them try to figure it out, I included a letter pointing out the obvious errors showing where the VA failed to apply applicable laws. If you opt for HLR, I don't think it would hurt to include a statement pointing out any potentially obvious errors the VA made in denying your claim. 

 

[GBArmy]

Sound advise already provided by Vync and Vetquest. I too am not a great fan of HLR, but they do turn them around a lot sooner than VBA. I will say if Dr. Anise took your money for an IMO, he probably had sound reasoning for a nexus. I might go back and ask him his opinion of the VA's response. In any case, have your ducks in a row and go after them again. If we saw more info, we might be able to offer suggestions as already suggested. 

[lawbro]

Hello @GBArmy @Vync @vetquest. Thank you guys for your responses and advice.

I'm going to attached the pages of the decision letter that show the evidence and their explanation. They list "Letter from Dr. Anaise" in the evidence section but do not make any reference to it at all in the explanation. 

The HLR advice from you guys is pretty sound. If I do decide to go that route (and I probably will) I will make sure to include a statement that references the IMO on several occasions. I might even reach out to some local doctors and see if any of them can do an IME for me as well? I hear if it does go to BVA they REALLY like evidence so I guess you can't go wrong with having both?

[paulstrgn]

Was it a letter or an IMO from David Anaise (IMO would be best)? What you submitted from David Anaise state how your left knee was service connected?  

If it was an IMO I would have thought it would have carried more weight than the VA medical opinion (which was probably done my a NP). 

It sounds like they just did not weigh all the evidence you submitted.

[lawbro]

Hi @paulstrgn,

It was an IMO. I'll attach the front page and cross out my SSN. The total IMO is 48 pages long. 

You thoughts are exactly mine. The rater most likely saw the length of the IMO and just didn't pay any attention to it? Hoping that when I go HLR and talk with the reviewer I can point that out maybe.