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?

[Sam N.]

I am in a similar boat as you. I provided the VA with an IMO from Dr. Aniase and it was denied. Mine was gout secondary to DMII, but the VA reviewer took the word of the C&P examiner over my IMO letter. I read somewhere online that when it is a tie, one saying at least as likely and the C&P examiner saying, less as likely, that it should be ruled in favor of the veteran. Is this an incorrect assumption?

Also the VA's rationale is full of mistakes. First they say there is no literature that supports Gout  being secondary to DMII, but Dr. Aniase did provided literature that supports a connection between gout and DMII. Either way I will appeal this ruling.

[Fat]

I have a question for lawbro?

How long did the reconsideration/supplemental claim take for an answer?

Also, I would forgo the HLR and head straight to the BVA.

Their will be a waiting period, but it will receive the full legal consideration it deserves.

My rationale is:   If the regional office denied the initial claim.

You submitted more evidence to support the denial but the denial continued.

Why would a Regional Office Higher Up overturn a decision that's been looked at twice.

Now there could be a glaring oversight; however the next step is to get a different set of eyes on the denial

The Board of Veteran Appeals.

 

[Fat]

Excellent advise from all.

I personally would go BVA, but the HLR on the CUE theory is interesting as well.

EXCELENT ADVISE by all.

 

NEVER GIVE UP............

[JKWilliamsSr]

Looking at the letter I would say it is identical to what they did to me.  It appears they are listing the evidence they claim to have considered but do not mention said evidence in the actual decision.  It is lazy rating at it's best.  The decision letter cite's the VA examiner but does not cite Dr. Anaise which is a clear violation (probably not the best term to use)

Couple things I see wrong right off the top of my head.

They cited 38 CFR 3.303 but clearly did not properly apply it.  This regulation has 4 parts in it general, chronicity and continuity, preservice disabilities noted in service and postservice initial diagnosis of disease.  Since they did not specify the actual application then the logical assumption they applied the entire thing.  They did this exact same thing to me and I called it out in my HLR and pretty much demanded they show how they actually applied it.  I am not going to let the just say they followed a law in a denial without showing their rationale. My HLR is still pending.

The cited 38 CFR 3.304 and they clearly screwed up here by stating they applied this.  In the decision they stated that your left knee tendinitis is not related to your right knee tendinitis.  So to me it was clearly filed as secondary condition but they cited a law that applies to DIRECT service connection.  The law they were supposed to apply in connection to this was 38 CFR 3.310 which is for "disabilities that are proximately due to, or aggravated by, service connected disability or disease"

Basically a cookie cutter denial from a lazy rater.

Edited January 2, 2020 by JKWilliamsSr

[Berta]

Somewhere in this thread is the change in M21-1MR that I requested from former VA Sec. Shulkin-

The M21-1MR change is here somewhere else-

https://community.hadit.com/topic/75812-21-0958-still-valid-in-2019/page/2/#comments

A Higher Level Review is supposed to seek any CUE prior to the decision being made.

It has worked for  few vets here already.

I have been going over and getting rid of some of the 25 plus years of VAOLA I have incurred.I found the letter I had sent to both Shulkin and POTUS. Former Sec Shulkin's office called me as to their incorporation of two of my requests- One was this one- the other was to make a regulation that prevents a reconsideration request from Stopping the NOD clock deadline.

I have to go over this thread again- having some noisy work done on my home---- but I feel you should file a CUE and ask for a HLR.

[Berta]

Geez, my post repeated what I had already posted in this thread-

In any event-I too have been victimized by the VA's ability to completely ignore probative evidence, many times.

If you have an IMO done by someone with full expertise to opine on your claim, and they follow the IMO/IME criteria here at hadit, and prepare an opinion that should garner an award, and then the VA ignores it- that is a CUE, as it is a violation of 38 CFR 4.6:

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

The VA violated this regulation MANY times since my initial claim of 1995. I have 2 CUEs pending on this now.

The last CUE I won was that they actually did list my evidence ( A VACO medical review for my FTCA case)in the Evidence list  but then disregarded it totally. A Buffalo VARO C & P doctor first stated the C & P exam was an

in-person review- then  she had to change that because the veteran, my husband , by then ,had been  dead for 21 years and the exam was ridiculous. They reversed their denial and awarded 3 weeks later due to my CUE under 38 CFR 4.6.

If the VA considers an IMO/IME in their decision, they might find something lacking in it that would not justify an award. But many vets are successful only because they have obtained a strong IMO/IME.