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

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lawbro

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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?

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You got excellent advice from above vets-

This definitely sounds like a CUE-because even if they list probative evidence, then if they do NOT consider it at all it is a CUE under 38 CFR 4.6.

When we can read the exact words of the VA in the decision, many here can prepare a CUE for you if I am not here- due to other vet issues I am involved in-(BWN AO )

I have won every CUE I ever filed- and have 2 pending that a VA audit in progess might well resolve.

If I had thought of CUE decades ago, many of my claims would not have taken too long=

the last 2 CUEs I filed brought me an award in mere weeks.

Yes HLR is supposed to seek CUE themselves. A letter I wrote to former Sec  Shulkin caused that change in M21-1MR and others here have been advised of CUEs the HRL person found.

If a vet catches a CUE they need to file CUE ASAP, and direct it as Attention to and put the alpha part of the alphanumeric on the denial. That alpha contains the code for the name of the last person who signed off on your claim, and committed the CUE. Lots of info and templates in our CUE forum.

It is an outrage ( and this happened to me as well) to pay good money for a solid IMO/IME from a real doctor and then to have the VA totally ignore it. How, in any way at all, can that reflect any consideration of our rights?

It cant-it is a CUE.

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Hi Ms. @Berta

Thank you for taking the time to review all of this.

Below will be pictures of:

  • Denial Letter showing evidence listed (they list a "Letter" from David Anaise, not an IMO)
  • Denial Decision explanation (where they do not even reference or mention the IMO)
  • The medical Opinion of Dr. Anaise
  • The Conclusion from Dr. Anaise

 

My current plan for the HLR is to attached a copy of the IMO again and add sticky notes and highlight the areas (Conclusion and Medical Opinion) that they ignored the last time.

 

Would the order of events go like this? I'm not familiar with filing just a CUE.

1) File HLR

2) If denied again, file for BVA

3) If that is denied, file CUE

Evidence Letter.png

Denial Decision.png

Medical Opinion.png

Conclusion.png

Edited by lawbro
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  • Content Curator/HadIt.com Elder

I could be wrong, but this might be the way it works: 

Keep in mind that there is a difference between HLR and CUE, even though as @Berta indicated HLR is supposed to look for CUE. HLR by itself is just one of the appeal lanes like BVA and supplemental. While in these lanes, your claim is still considered active and appeal-able to other lanes which have yet to see review it.  Once each of those lanes have been exhausted, you can then appeal to CAVC, then Federal Circuit, then Supreme Court. I remember reading that the new process was setup like this so that veterans would not need to appeal repeatedly at the VARO and again repeatedly at the BVA.

A standalone CUE can be filed only if your claims have been decided and the decision becomes final. That means you can no longer appeal to a higher level. The two CUEs I filed last month were for claims which became final 19 years ago in 2000. CUE claims are not very easy to put together unless you trust the VA to get them right. If the VA did that, then they would not have made the errors in the first place.

Going HLR with an clear explanation of their error might be a good first option, then BVA, and so on.

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Thank you @Vync. From what i've been reading that's how i've been interpreting everything.

I think i'll start with the HLR and just make sure they see the areas in the IMO that support my claim. Then if that fails go BVA and then so on. 

Thank you for taking time to comment on this again. All of your opinions and advice is greatly appreciated.

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8 hours ago, Vync said:

The doc's assessment is generalized to service as a whole, but does not relate your current disability to a specific injury in the service.

Vync is right on the money with this assessment. In other words, if you do not have an injury or event in-service of your "left knee" specifically, it would be more beneficial to you to argue on the basis of aggravation from the "right knee" which is service connected. Moreover, pay attention to what Dr. Anise says here:

"Thus, his left knee tendonitis/tendonosis is more likely than not also caused by and/or aggravated by his service-connected right knee condition."

Does Dr. Anise specifically cite your medical records (be it private or federal) to substantiate his opinion (as well as supporting rationale) on the degree of aggravation? If not, then this is the reason why VA denied the claim. Judging from the denial letter you posted, the adjudicator gave "substantial weight to the VA examiner" and completely rejected Dr. Anise's medical opinion.

Dr. Anise also states the following:

"Medical research clearly shows that soldiers are especially susceptible to osteoarthritis after discharge from the service and that osteoarthritis may manifest itself many years after the initial injury."

Here, Dr. Anise should have cited the following: "38 CFR 3.303(d) Post service Initial Diagnosis of Disease." FYI, see below:

"(d) Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid."

Moreover, medical literature is typically general in nature and should be "supplementary to your medical evidence" to strengthen the merits of your claim. Never under any circumstance should medical literature outweigh private and federal medical records in my humble opinion (example: submitting 20 pages of medical records and then submitting 40 pages of medical literature for a total of 60 pages in your claims file).

Here, Dr. Anise should have tailored his medical opinion on you (the veteran) instead of "soldiers in general." In my opinion, there are two things that need to be clarified with this medical opinion:

1. Exactly how your service-connected right knee condition has caused a left knee condition

2. Exactly how your non-service connected left knee condition is "aggravating" your service connected right knee condition

If you have to overcompensate with the left knee, then that would put more stress on the "right knee" which in turn would make the right knee worse over time. I would politely ask Dr. Anise for an "addendum" to his medical opinion explaining the above two issues in further detail and citing the specifics (facts) in your medical record that led to an increase in disability.

I don't know all the details of your claim, but it definitely sounds like an error has been committed. The VA loves to ignore "probative evidence in favor of the veteran." Do not let them get away with it.

In addition, "38 CFR 3.310(b)" will help substantiate your claim. This regulation states the following:

(b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.  (Authority: 38 U.S.C. 1110 and 1131)

Hope all this information helps. Keep fighting and keep us posted!

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  • HadIt.com Elder

sorry for the late reply   been up at my VAMC all damn day.

Yes file the cue and say the examiner did not mention Dr Anise medical reports and impression about your injury as he as examined me and read all medical records pertinent to my claim of the probative evidence you submitted with your claim.that you believe that should be substantial in the decision of your claim as favorable..then

in other words point out to them the error they made &

let them figure it out.

your pretty safe  its just going to take a little longer for them to make it right  keep your eye on the  first  filing date...for correct EED.

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