Just about ready to submit HLR

[JKWilliamsSr 69]

I have some questions before I submit my HLR.

The document pointing out the errors is so far 38 pages long.  Not because there are a ton of errors but that the same errors were repeated.  For example they denied an increase for my left knee and right knee under seperate decisions.  What I did was listed the left knee decision and pointed out they did not apply Deluca, Mitchell....etc.   Then I listed the right knee decision and listed the same things,.  I did it that way because I did not want to give them an excuse saying that I did not say I did not point an error out.  For example I did not want them to say I pointed Deluca for the left knee and did not do so for the right knee.   Also my IME separates each disability.  My IME warrants different percentages for the right and left knee so I thought it best to keep them separated.

There are some things I am pointing in my HLR and did not know if it would have any value.   It deals with the VA being required to state the reasons for explaining the reasons they did not consider or give my lay or medical evidence at all or gave minimal weight.  For example I found 9 precedent setting CAVC cases that state the the VA is required to supply a reason for why they rejected lay and/or medical evidence.  I included this in my HLR.  My thinking it is important to included it because if they decided to deny my HLR it shows them I know the requirements in case they try to not included it in my statement of case.

Here is an example of how I know with absolute certainty the did not consider my lay evidence.   In my denial for diabetes the rater stated that I did not claim obesity as the reason for my diabetes.  That is completely wrong because my VA Form 21-4138 that is submitted my statement clearly states that I using obesity as an intermediate step to my diabetes claim and I even submitted the VA OIG document that states it can be used.  That alone tells me they did not read my evidence.

[Vync 1,985]

I prefer brevity because someone at the VA will have read it. I prefer to make things as easy as possible for them, short of submitting my request in crayon.

I listed mine out my each claimed disability and described each error. For example, I put DeLuca, 4.40, and 4.45 on separate pages/exhibits/enclosures and just quoted/referenced the relevant parts of the law/ruling in light of each disability. That reduced the length of the request while greatly improving readability.

 

If the VA failed to adequately state the reasons for their decision, by all means include the statute/law/reg which requires it. If this is a regular HLR (meaning you are still in the appeal window), then you can use what's current. If it is an HLR for CUE (meaning the decision finalized, not in appeal window) you have to use the laws/rulings in effect at the time the decision was made. For the 9 precedent cases, check the BVA search page and search to see how and which are used. There is likely some variance between them so I would probably pick the one/ones most relevant to your situation.

Your 21-4138 is a good example, especially if it was sent in with your claim. If it was sent separately, be prepared to prove the VA received it (i.e. return receipt mail, fax confirmation). I had a case where I sent in additional evidence and the VA ignored it. I even found it in my claims file before the date they made the decision.

[JKWilliamsSr 69]

2 hours ago, Vync said:

I prefer brevity because someone at the VA will have read it. I prefer to make things as easy as possible for them, short of submitting my request in crayon.

I listed mine out my each claimed disability and described each error. For example, I put DeLuca, 4.40, and 4.45 on separate pages/exhibits/enclosures and just quoted/referenced the relevant parts of the law/ruling in light of each disability. That reduced the length of the request while greatly improving readability.

 

If the VA failed to adequately state the reasons for their decision, by all means include the statute/law/reg which requires it. If this is a regular HLR (meaning you are still in the appeal window), then you can use what's current. If it is an HLR for CUE (meaning the decision finalized, not in appeal window) you have to use the laws/rulings in effect at the time the decision was made. For the 9 precedent cases, check the BVA search page and search to see how and which are used. There is likely some variance between them so I would probably pick the one/ones most relevant to your situation.

Your 21-4138 is a good example, especially if it was sent in with your claim. If it was sent separately, be prepared to prove the VA received it (i.e. return receipt mail, fax confirmation). I had a case where I sent in additional evidence and the VA ignored it. I even found it in my claims file before the date they made the decision.

I will see what I can do to shorten it but my decision has so many errors it is not even funny.  Here are is a small sampling of them. 

1. The letter states that 38 CFR 4.40, 4.45,  Deluca v. Brown and Mitchell v. Shinseki was considered and applied.  That is it.  No further explanation.   No notes from the examiner.  Absolutely nothing about how any of these were applied. 

2. My diabetes decision is laughable.   There are few reasons in this denial that baffle me.  One being the rater stated the IME was based on opinion alone.  That was not true but they cannot deny on that this was decided in Colburn v. Nicholson.   

3.  Another issues in my diabetes denial is part of the denial is based on the fact my Dr did not indicate the probability or possibility of incurrence of your diabetes if my joint issues did not exist (I used obesity as an intermediate step to getting diabetes).   So I interpreted this as the rater requiring my doctor to provide medical evidence against my claim. 

4. They had all the lay evidence as it is listed on my decision letter.  They just simplified it by listing it like this.  VA Forme 21-4138 (12) received September 16, 2019.  I submitted 15 separate 21-4138's and one of them is an evidence list that breaks down each piece of evidence.  I listed each statement and what the statement was for in the evidence list.  The did not mention any of my statements once in any of the decisions.  They only cited my Medical Evidence twice in the decision.   My decision letter is based on 12 disability claims. 

Edited November 19, 2019 by JKWilliamsSr

[Vync 1,985]

2 hours ago, JKWilliamsSr said:

1. The letter states that 48 CFR 4.40, 4.45,  Deluca v. Brown and Mitchell v. Shinseki was considered and applied.  That is it.  No further explanation.   No notes from the examiner.  Absolutely nothing about how any of these were applied. 

That is definitely unusual. Every time I received a denial, they specifically stated a reason (not always the correct reason). When I won SC, but got low-balled due to not applying DeLuca, 4.40, or 4.45, they quoted the range of motions, even the limited range of motion, but simply forgot to apply them to the rating.

 

2 hours ago, JKWilliamsSr said:

2. My diabetes decision is laughable.   There are few reasons in this denial that baffle me.  One being the rater stated the IME was based on opinion alone.  That was not true but they cannot deny on that this was decided in Colburn v. Nicholson. 

I have seen others denied for the same reason. In those cases, it was a case where the doc never indicated reviewing relevant medical treatment records when writing an opinion (IMO). But an IME is an independent medical examination, so I assume they have to have performed an examination in order to come to an opinion, which is more than just an IMO alone.

 

2 hours ago, JKWilliamsSr said:

3.  Another issues in my diabetes denial is part of the denial is based on the fact my Dr did not indicate the probability or possibility of incurrence of your diabetes if my joint issues did not exist (I used obesity as an intermediate step to getting diabetes).   So I interpreted this as the rater requiring my doctor to provide medical evidence against my claim. 

I recall reading some decisions where the VA tried this. They want the doc to state there is no other possible cause for what was claimed. I cannot recall off the top of my head what the VA was referencing.

The VA is supposed to adhere to 38 CFR 4.2 Interpretation of Examination Reports. 

You might want to also look at the VA's internal processes and procedures M21-1 regarding how to interpret exam reports: M21-1III_iv_3_SecD.docx. If you are still within the appeal window for your HLR, M21-1 is applicable. However, if you are submitting CUE, it's best to try to stick to the hard laws, rulings, and regulations because M21-1 changes very frequently.

 

2 hours ago, JKWilliamsSr said:

4. They had all the lay evidence as it is listed on my decision letter.  They just simplified it by listing it like this.  VA Forme 21-4138 (12) received September 16, 2019.  I submitted 15 separate 21-4138's and one of them is an evidence list that breaks down each piece of evidence.  I listed each statement and what the statement was for in the evidence list.  The did not mention any of my statements once in any of the decisions.  They only cited my Medical Evidence twice in the decision.   My decision letter is based on 12 disability claims. 

The VA functions under the "presumption of regularity". That's when the government is assumed to have performed their job correctly. Statements like "VA claims folder", "Service treatment records from [date] to [date]", or "VA Forms 21-4138 (12)" are made under the assumption that the VA honestly and thoroughly reviewed the evidence in accordance with the laws.

You did the right thing by providing a granular breakdown of your evidence. Unfortunately, the VA does not always break out the evidence list by stating every document. If the VA truly did process the claim correctly and fairly, then it's no big deal. However, when they are lazy, in a hurry, or make other errors, it makes it difficult to determine what was really reviewed vs. what was not.

 

I also had issues where the VA decision letter did not indicate anything from the 21-4138's. However, when I read the VA C&P exam notes, they actually did quote from them.

[vetquest 1,026]

I agree with Vync on brevity.  If I was going to submit a document that big I would have a first page that summarizes the thirty or so pages.  I have seen where if you present too much evidence to the VA they will just not read it.  There is an outside chance the rater will not read the whole document but will read the first page.

[JKWilliamsSr 69]

1 hour ago, Vync said:

Quote

That is definitely unusual. Every time I received a denial, they specifically stated a reason (not always the correct reason). When I won SC, but got low-balled due to not applying DeLuca, 4.40, or 4.45, they quoted the range of motions, even the limited range of motion, but simply forgot to apply them to the rating.

 

I just went over the decision later again and there is not a single reference to my lay evidence, IME report or the C&P Examiner.    This was for a increase and it just basically said it is being continued at 10 percent and that is it.   The Following paragraph is talks about how the 4.40, 4.45, Deluca and Mitchell were considered and applied under 38 CFR 4.59 (missed that earlier) it goes on to state what the requirements are for in increase to 20%  and that is the end of it. 

 

Quote

I have seen others denied for the same reason. In those cases, it was a case where the doc never indicated reviewing relevant medical treatment records when writing an opinion (IMO). But an IME is an independent medical examination, so I assume they have to have performed an examination in order to come to an opinion, which is more than just an IMO alone.

 

My IME was an actual examination and the IME report also has measurements that were submitted.   This is the statement the Dr. made at the end of the IME report:

"My medical opinions are based upon my examination of the veteran, review of records, my education, training and experience and upon reasonable medical probability and reasonable medical certainty.  It is my medical opinion that the impairments and disabilities set forth in this report were, more likely than not, due to and a consequence of this veterans military service."

The IME has attached to it a list of all the records that were reviewed which includes SMR and a Range of motion worksheet with Range of motion values for my back, hips, knees and ankles. 

 

Quote

 

I recall reading some decisions where the VA tried this. They want the doc to state there is no other possible cause for what was claimed. I cannot recall off the top of my head what the VA was referencing.

The VA is supposed to adhere to 38 CFR 4.2 Interpretation of Examination Reports. 

You might want to also look at the VA's internal processes and procedures M21-1 regarding how to interpret exam reports: M21-1III_iv_3_SecD.docx. If you are still within the appeal window for your HLR, M21-1 is applicable. However, if you are submitting CUE, it's best to try to stick to the hard laws, rulings, and regulations because M21-1 changes very frequently.

 

 I am still in the appeal period.  This decision was handed down October 16th. 

This particular decision can almost show the rater never bother to completely read my evidence.  In the IME report Dr. Ellis stated that I was "Diagnosed" with diabetes in December 2018.  Now this supported by the medical records that I submitted from my civilian doctor.  My primary care doctor diagnosed me with diabetes based put me on medication (metformin) Dr. Ellis was merely confirming the diagnosis and stated his opinion based on the examination of me. 

 

Quote

The VA functions under the "presumption of regularity". That's when the government is assumed to have performed their job correctly. Statements like "VA claims folder", "Service treatment records from [date] to [date]", or "VA Forms 21-4138 (12)" are made under the assumption that the VA honestly and thoroughly reviewed the evidence in accordance with the laws.

You did the right thing by providing a granular breakdown of your evidence. Unfortunately, the VA does not always break out the evidence list by stating every document. If the VA truly did process the claim correctly and fairly, then it's no big deal. However, when they are lazy, in a hurry, or make other errors, it makes it difficult to determine what was really reviewed vs. what was not.

 

To be honest that is logical.  In fairness it is not an issue if a claim is adjudicated in favor of a claimant.   However,  When denials come into play and I am sure this goes without having to say it but the rater is required to follow all applicable laws when it comes to evidence.  Which we all know they do not do.  Hell, I have a supplemental claim pending for flat feet where the denial stated that there is no record of complaints in my SMR's.  I found the SMR's to support the claim.  I also submitted a supplemental claim to reopen a back claim where the denial stated that while there are documented back issues while I was in service there are no diagnosis in the record. I found SMR's where there were 5 diagnosis of Lumbar Strain.  Guess where I got this info.....  My C-File. 

There were a total of 12 decision made on my most recent claim.   The claims were were for Asthma (granted),  Right and Left Knee both (limitation of extension and instability - 4 decisions - denied) , Left and Right hip (2 decisions denied),  Diabetes (1 decision - Denied), Sinus condition (reopened by VA was not in my claim - 0 to 10% granted), Sciatica ( 2 decisions - Denied - should have been deferred)

When I filed my claim the VA reopened my Sinusitis I was rated at 0% but service connected.  I have to use prescription nose spray so that is why I got 10%.   I did not claim it because I thought it was upper respitory  and could not be combined with my asthma.  Either way with or without it I would still be at 50%. 

My sciatica I claimed secondary to my back.  They flat denied it because my back was not service connected.   My back is pending a supplemental claim because it was denied and 2009 and I was past the appeal period.  So that should have been deferred. 

I had a C&P for my hips and knees.  This exam is mention for limitation of extension and the examiner range of motion value are not listed.  The examiner notes is not listed for the knee instability either.  So I had a knee exam and also submitted an IME that included a knee exam and neither of them are mentioned at all in my knee denials.  For the hip denial the examiner not is listed only by saying they are unable to confirm a chronic diagnosis.  I uploaded medical records and an X-Ray report showing arthritis in my hips.   Gave he C&P examiner a copy of the X-Ray report and the C&P Examiner actually diagnosed me with Degenerative Arthritis in both hips. 

The IME is only referenced in the diabetes denial and the Sciatica denial which should have been deferred anyway. 

My lay evidence was not mentioned in any of the decisions. 

So as you can see there is a lot to cover in my denial because there is a lot the VA did wrong IMO. 

 

 

Edited November 19, 2019 by JKWilliamsSr