NOD Help for Secondary Conditions.

[AllTheWay]

Greetings to all members to Hadit. 

The question may have been answered in the forum but I can't find and answer anywhere  so therefor any help would be greatly appreciated.

I have recently file a  secondary claim for bilateral knee conditions caused by my bilateral flat feet which I am rated at 50% for. I do have a diagnosis for both  knees which were submitted.

The examiner opined that I do have a bilateral knee condition that is less than likely than not caused by bilateral pes planus.

The examiners rational was " that  the veterans bilateral condition was due to a specific incident or injury while in service and not by pes plans".

To me, the examiner does see a direct service connection for my knee condition.

I was denied bases on  the examiners opinion but the rating official did not consider the examiners rationale.

I am in the middle of doing an NOD instead of a reconsideration, even though I filed as secondary,  Is there a reg out there that states that the rater can do a direct service connection being that I have an event or injury while in service, I do have a diagnosis, and looks like the examiner stated it was caused by an incident or injury while in service (looks like a nexus)?

Thank you all in advance for your help.

 

 

[broncovet]

File the NOD.  

You may have to get an IMO to overcome what the VA considers is a negative medical opinion.  (I have not seen the opinion, but it doesnt matter what I think, any, because Im not a decision maker for ratings).  

My advice is to get your records, especially the medical opinion.  

If you think the medical opinion "is" favorable then you could try an HLR.  

The VA is going to be looking for "at least as likely as not", and they may not even read the medical rationale.  

After you file a nod and get the records, you will need to decide whether or not to get an IMO.  If you dont have a valid nexus, you will need an IMO to be SC.  

No nexus=no benefits.  

Now, the 3 Caluza elements are only 2 with secondaries:

1.  Current diagnosis

2.  Nexus that the (secondary condition) is at least as likely as not due to an already sc condition.  

[LightofSolitude]

You need "three elements" in order to get service connected. These are as follows:

1. Current Disability (without this, there can be no valid claim)

2. In-Service Event or Injury (proven by a line of duty determination)

3. Medical Nexus Statement (showing the relationship between #1 and #2 above)

Based on what you posted, my assessment is as follows:

1. Current Disability = You are good to go here

2. In-Service Event or Injury = This one is questionable. It seems like you have this element, however the doctor is going to have to clarify his/her opinion on exactly what is the cause of your current disability or provide sufficient rationale for "secondary service connection."

3. Medical Nexus Statement = Due to the doctor rendering a "negative opinion" the VA is most likely going to completely disregard the doctor's rationale anyway and deny the claim. An "HLR" would most likely result in the claim being denied again as you cannot submit any additional evidence with this option even if such evidence is favorable to your claim.

My advice: Get another medical nexus opinion "rebutting the negative opinion with a clarifying rationale" to support the claim. Then file another "supplementary claim" along with submitting "new and relevant evidence." Remember, your goal is to get service connected at the 1st level of the claims process (regional office level). You can always appeal at a later date for an earlier effective date.

Also, throwing in a couple of pages of medical literature would strengthen your claim as a whole. The following regulation: "38 CFR 3.159(a)(1)" specifically allows you to do just that.

Keep fighting and NEVER GIVE UP!!!

[AllTheWay]

Thank you for the rapid response @broncovet and LightofSolitude. 

The exam was a positive exam in my opinion. The only negative thing was the opinion and rationale.

This is what the examiner stated verbatim:

Opinion: It is the opinion that the Veteran does have bilateral knee conditions that are less likely than not proximately the result of bilateral pes plans and plantar fasciitis.

Rationale: The Veteran has specific diagnosis for the left knee, as mentioned, and the right knee has a dx of recurrent knee strain. From the history these are related to specific injuries in service and not to the bi pes plants and plantar fasciitis.

I do know how the examiners now how to twist things up, but prior to that exam, I had my non VA primary care do a DBQ for the same condition, which I did not include because I plan to use that as well as my recent MRI for new evidence.

Here is what my non VA PCP wrote.

Opinion: After reviewing the veterans treatment records, service records, and MRI findings, as well as completing a thorough history and physical exam, it is my opinion that the veteran has the diagnosis previously stated and that they are likely as not incurred by the diagnosis in service.

Rationale: In 19 blank blank, the veteran was seen in the emergency room from a MVA while in service and was diagnosed with knee strain. The Veterans 20 plus years of military service with strenuous training and multiple combat deployments, along with his diagnosis of bilateral pes planus are as least as likely as not have exacerbated his bilateral knee condition and in his current chronic knee conditions. He did name the condition. he also Cited FM 21-20 about the affects of strenuous training and what injuries that it could cause.

I do have cites from Web Mayo as well as NCBI. I am planning to do a NOD on this one.

 

[broncovet]

You posted:

Quote

 It is the opinion that the Veteran does have bilateral knee conditions that are less likely than not proximately the result of bilateral pes plans and plantar fasciitis.

This is a negative nexus.  It sounds like its in conflict with your PCP who gave you a nexus.  

You can cite the case law Attorney Chris Attig cited.

You did not need a c and p exam...you already had a nexus.  VA ordered an exam to get evidence to deny.  They got that (negative) evidence and denied you.  

Chris Attig calls it "developing to deny".  If you already have a nexus, the VA is not supposed to go on a fishing expidition to find evidence to deny.  That is exactly what they did.  

Now, its possible that the c and p examiner was "more competent" than your PCP BECAUSE the c and p examiner "could" have been an expert in the field, while YOUR PCP may not be an expert in ortho or knees.  But, they have to state a reason why.  

You should appeal this, and see what Chris Attig says about developing to deny:

 

Edited November 11, 2019 by broncovet
add more

[AllTheWay]

This is some great info Broncovet, thank you again for your time and patience. I kinda of figured that is what the VA was trying to do since that I have filed for this condition 4 times within the last 10 years and had been denied on all. Thats why I did my research and found that flatfeet can cause knee problems. Prior to the C&P exam as stated before, I had my primary care MD do a physical and a DBQ for me which he has been my PCP for years. I did do my research on my C&P examiner prior to my exam, and found out that she was a MD as well. My Doc have been dealing with me for years,  the examiner only dealt with me for maybe 45 minutes. Both are MD's. Conflicting exams. I did not surrender  my dbq from my PCP to the C&P examiner. I really do see how the VA tries hard to deny. Thats why I believe this is a good cite for Vets to get great knowledge. I have fought for my country and survived combat tours. Now I have to fight the VA and hopefully I can survive through this battle.

 

[GBArmy]

AllTheWay

That's the spirit, keep fighting. Find a way to rebut their position. Did you ever hear of the saying " 5Times the charm." Appeal again.

Good luck brother.