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How can the VA change what is claimed?


dwbell99

Question

VA changed "lower bilateral knee strain and painful range of motion" to "knee degenerative osteoarthritis" after they failed to diagnose "lower bilateral knee strain and painful range of motion" during the C&P. Is this legal?

DECISION:

1. The previous denial of service connection for left knee degenerative osteoarthritis is confirmed and continued.

2. The previous denial of service connection for right knee degenerative osteoarthritis is confirmed and continued.


REASON FOR DECISION:

On October 18, 2017, Dr. Vet provides a medical opinion that your lower bilateral knee strain and painful range of motion are more likely than not secondary to the service connected left ankle due to abnormal gait.

The VA medical opinion dated March 18, 2019, is more reliable as the rationale
is better supported, the condition in the VA medical opinion is more accurately described as osteoarthritis, whereas the medical opinion provided by Dr Vet lists strain and painful range of motion, which, per DBQ is not a current diagnosis. Rather, patellofemoral pain syndrome and knee joint osteaoarthritis are shows as disabilities.

Edited by dwbell99
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"Everything" is legal for VA since they have no police force to enforce the rules except for the kangaroo court, aka VAOIG.  The obvious answer here is to suggest you apply for pattelofemoral pain syndrome and knee joint arthritis...they already gave you a hint, now I suggest you take it.  

This happens, sometimes, when Veterans "think" they need to apply for some specific medical disorder.  Instead, the regulations suggest the Veteran "point to the body part that hurts".  

Now, the odd part is that the decision seems to conflict with itself.  Here is what I mean (direct quotes):

a) 

Quote

 

2. The previous denial of service connection for right knee degenerative osteoarthritis is confirmed and continued.

b)  

 knee joint osteaoarthritis are shows as disabilities.

 

 

You are gonna need to appeal it, or maybe try cue.  I dont see an advantage to cue, however.  Apply for the disabilities shown by the decision.  You must have a current diagnosis, as well as an in service event and nexus.   

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I still like pointing out that the decision was in conflict with itself.  Remember, when YOU offer your opinion, the VA goes, "yea right..denied".  But, the VA can not refute the opinions of themselves, nor can they refute the opinions of a qualified medical professional or regulation.    Remember, the doctrine of equipose may apply here.  

If the VA denies and favors one doc's opinion over another, the Board has to give a reasons and bases for doing so.  They attempted to do this.    Otherwise, the claim is in equipose and must be granted.  Some (valid) reasons for favoring "doc A" over "Doc B"s opinion:  Doc A was more thorough, for example, he reviewed your records and stated so, while doc b did not so state.  

Sometimes, I have seen them also say that Doc A's opinion was more consistent with the facts.  (They are saying they dont believe your doctor).  Still, the Va needs to say WHY Doc A was more consitent with the facts. 

A diagnosis does not have to be in the DBQ.  A diagnosis can be made by any doctor, not "just" a c and p exam doc.  If said diagnosis was made by another doc, then cite that doc's diagnosis in your appeal.  

This statment is hogwash:

Quote

the condition in the VA medical opinion is more accurately described as osteoarthritis, 

No.  This is the VA making a "medical opinion" that your condition is osteoarthritis.  The VA is not competent to make said medical opinion, only a medical professional can make such an opinion.  The VA has substituted "their own unsubstantiated opinion" for that of a medical professional (this assumes a doctor did not say that your condition was more accurately described as ostearthritis).  If a doctor said that your condition is more accurately described as osteoarthritis, then the VA can cite that medical opinion.  

However, VA is making an assumption that is incorrect:  That your condition "was more accurately described as arthritis".  How does the VA know??  Are they doctors?? No.  They are substituting their own opinion for that of a qualified medical professional.  

Bottom line:  This is a bogus denial, full of holes that an attorney can exploit.  
 

Edited by broncovet
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It sounds like they took the opinion of the VA doctor as more reliable as fact versus your doctors opinion from 2017. 

It appears you did not have a "current" diagnosis of the lower bilateral knee strain and painful ROM specifically. It sounds like they denied you for the osteo before and they stuck with their original decision on the DX.

Your doctor only stated that it (the condition, in his opinion being the knee strain and painful ROM) is more likely than not secondary to your left ankle issue. So while he opines to the issue being related to your left ankle service connected disability, the VA did not accept his "diagnosis" if you will. Instead, chose the diagnosis opinion of their doctor from your exam in 2019 (and by the sounds of it, the previous denial). I could be mistaken but to me, this is what it sounds like. 

22 minutes ago, dwbell99 said:

On October 18, 2017, Dr. Vet provides a medical opinion that your lower bilateral knee strain and painful range of motion are more likely than not secondary to the service connected left ankle due to abnormal gait.

20 minutes ago, dwbell99 said:

The VA medical opinion dated March 18, 2019, is more reliable as the rationale
is better supported, the condition in the VA medical opinion is more accurately described as osteoarthritis, whereas the medical opinion provided by Dr Vet lists strain and painful range of motion, which, per DBQ is not a current diagnosis

 

 

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17 minutes ago, Foxhound6 said:

It sounds like they took the opinion of the VA doctor as more reliable as fact versus your doctors opinion from 2017. 

It appears you did not have a "current" diagnosis of the lower bilateral knee strain and painful ROM specifically. It sounds like they denied you for the osteo before and they stuck with their original decision on the DX.

Your doctor only stated that it (the condition, in his opinion being the knee strain and painful ROM) is more likely than not secondary to your left ankle issue. So while he opines to the issue being related to your left ankle service connected disability, the VA did not accept his "diagnosis" if you will. Instead, chose the diagnosis opinion of their doctor from your exam in 2019 (and by the sounds of it, the previous denial). I could be mistaken but to me, this is what it sounds like. 

 

 

That makes sense. I was thinking that the C&P should have evaluated all conditions not just the ones addressed in the one I submitted.  Also since Pain was not recognized as a disability by itself until 2018 (DBQ from my Dr was 2017) maybe that may have had some weight in the VA's decision.  Seems that the C&P just copied my Dr's DBQ then changed the claim.

 

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43 minutes ago, broncovet said:

"Everything" is legal for VA since they have no police force to enforce the rules except for the kangaroo court, aka VAOIG.  The obvious answer here is to suggest you apply for pattelofemoral pain syndrome and knee joint arthritis...they already gave you a hint, now I suggest you take it.  

This happens, sometimes, when Veterans "think" they need to apply for some specific medical disorder.  Instead, the regulations suggest the Veteran "point to the body part that hurts".  

Now, the odd part is that the decision seems to conflict with itself.  Here is what I mean (direct quotes):

a) 

 

You are gonna need to appeal it, or maybe try cue.  I dont see an advantage to cue, however.  Apply for the disabilities shown by the decision.  You must have a current diagnosis, as well as an in service event and nexus.   

This! I knew I felt like I had overlooked something. I thought the same thing in regards to the decision conflicting with itself.

In regard to claim conditions; I always am very general about it. When I filed claim for my back, I listed it only as "spine" and let the VA or my records give the DX itself. Let them fill you into a category. I imagine it can get dicey when you start getting more specific? I knew someone would come along and correct 😄

Edited by Foxhound6
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I am thinking about this in my supplemental claim. What are your thoughts?

The VA medical opinion dated March 18, 2019, is more reliable as the rationale is better supported; the condition in the VA medical opinion is more accurately described as osteoarthritis, whereas the medical opinion provided by Dr. Vet lists strain and painful range of motion, which, per DBQ is not a current diagnosis. Rather, patellofemoral pain syndrome (pain in the front of the knee and around the patella, or kneecap. ... Problems with the alignment of the kneecap) and knee joint osteaoarthritis are shows as disabilities. 

     1. VA failed to verify that the claim was properly developed and procedurally prepared for a decision when VA failed to make sure that all issues were recognized when it failed to evaluate Veteran's claimed lower bilateral knee strain and painful range of motion was evaluated in the VA DBQ.
         M21-1, III.iv.5.A.1.d.  Circumstances in Which to Evaluate Evidence
         
     2. Pain is a disabiliy IAW Saunders vs Wilkie, April 3, 2018 Board legally erred as to its interpretation of the meaning of “disability” under § 1110, as pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.

 

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