Pending HLR, Pending Supp Claim, Closed Supp Claim. Should I call or file IRIS

[JKWilliamsSr]

I am trying to decide if I should call the white house line of file an IRIS claim myself.   I am leaning towards filing the IRIS claim because my understanding is that is what happens when you call the white house line anyway.  So here are where my claims stand.

1.  In September my supplemental for Sleep Apnea and 1 other was closed.   I still have not received a letter or any other type of notification about this other than it is what shows on va.gov.   I am certain they are required to send me notification and by not doing so is a clear violation of 38 CFR 3.103

2. The remaining claims on that supplemental claim are still pending.  I have called them twice already on this for the status.  This is the exam where I had the bad C&P exam but there still should have been some kind of movement.  I had the C&P exam on November 5th and 30 days later I called to request the status and was told they were waiting for exam results.  Called them out on that and they said it was because of backlog.  I called a couple weeks later and they were not gave me any additional information.  Just stated it was still pending.    I personally believe this exam should be in the hands of a rater because it is not an appeal but reopened claims with new evidence.  Unlike new claims or increases I cannot request a decision because I do not have additional evidence like you can on ebenefits.

3. I also have an HLR pending for denials I received an October.   Right now the status is "A senior rater is taking a new look at your case".  It has been sitting in that phase for the last 3 weeks and since no evidence  can be submitted it should not take a rater this long to be looking at this.  I could be wrong but I have seen way too many HLR's being completed within a week or so of a senior rater looking at it.   Maybe it is a good sign maybe not.

Here is what I think is happening.  I have several different types of claims going and I think it is just being swept away.   The last time I called I asked about both my HLR and Supplemental claim and the person I spoke to was clueless and could not give me any information because in my opinion they did not know what the hell they were doing.  I think with an IRIS complaint I can detail all of my concerns and have it listed where it cannot be ignored.  Sure it may not make a difference but it will be on record and can be used in my appeal.

[GBArmy]

Makes sense; that is what the next step would be with a lawyer. H&P are good at what they do, so if they do take your case, I think you have a reasonable chance of winning.

[JKWilliamsSr]

31 minutes ago, GBArmy said:

Makes sense; that is what the next step would be with a lawyer. H&P are good at what they do, so if they do take your case, I think you have a reasonable chance of winning.

I have always believed I would need to hire an attorney anyway because of EED.  I was denied for both feet and back by the VA stating that my service records showed no complaints.  Got my C-File and that was not true.  SMR's show complaints and on top of that they really screwed up.  My exit exam had normal feet.  My exit exam actually has a diagnosis of moderate pes planus.  I also have X-Ray and Podiatrist confirmation of flat feet.   So the EED is should go all they way back to 2009....we are talking 6 figures. 

[JKWilliamsSr]

So I had a C&P exam today and it was a fast one as well but I don't think it was as bad as my last exam.  This exam was for my foot claim.  I was diagnosed on active duty with moderate pes planus and plantar fasciitis.   When I applied in 2009 I was denied due to the VA's claim that I had no complaints in service.  In 2018 I got a copy of my C-File that showed treatment in service.  So in other words.... a rater got lazy.

Today's exam was straight forward.

1. I walk into his office and he asks me to remove my socks and shoes.
2  The then asks me about the pain in my feet and where does it hurt.  I explain that the pain is constant on use and it is on the inside of each foot and so bad that it forces me to put all my weight on the outside of my feet.
3. He quickly examines my feet and say to me that I definitely have flat feet
4. He has me stand facing me and looks at my feet.
5. He has me turn around and looks at my feet from the back
6. He then tells me I can put my sock and shoes back on.
7.  He is working on the DBQ and comments to me that I have been seen several times during service for these issues.

That was the end of the examination.  All in all I think it was over in 10 minutes.

Considering this an exam for flat feet I don't expect there was much to examine but more of a confirmation.

[Vync]

It always amazes me when you get a denial due to no issues during service, but you (and the new doc) sift through the records and find exactly that.

[JKWilliamsSr]

UPDATE:

There is movement on my claims but I would say more bad news than good.   My overall rating jumped from 50% to 60% today.  I guess every little bit counts but the reason for this is laughable  I got a bilateral rating of 10% for my flat feet.   On the one hand that is somewhat good new because my feet are now service connected.  So getting an increase because of how ridiculous the DBQ is should be easy.  It just sucks that in order to get the proper rating I have to file an appeal because a C&P is too lazy to do his job properly. 

Key points of he DBQ: 
a. Describe the history (including onset and course) of the Veteran's foot: DAILY PAIN IN THE AM THAT GETS WORSE DURING THE DAY. MAINLY ARCH. NO SURGERY. TRIED INCERTS THAT DIDN.T HELP. HAS HAD STEROID SHOTS. NO MEDICATION  (this is copied and pasted exactly from my DBQ.  He typed it in all caps....even mispelled inserts.)

The problem with that assessment is that I never said that.  If you go to page 9 on this thread you can see what I said.  I told the examiner that he pain is constant on use and it is on the inside of each foot and so bad that it forces me to put all my weight on the outside of my feet.    

b. The DBQ asked if I reported if flare up impact the function of the foot.   The examiner stated I said no. 

The examiner never asked me about flare ups.  This was never discussed.  This is also contradicted by the lay statement I submitted when I filed my claim that states that at the end of each day the pain in my feet is a 10 out of a scale of 1-10.  A clear sign that the examiner did not review my file. 

c.  The DBQ asks Does the Veteran have any foot injuries or other foot conditions not already described? - The examiner stated no 

When I filed my claim I filed it as Bilateral Pes Planus with Plantar Fasciitis.   My services records that I also submitted with the claim shows  that I have diagnosis of Pes Planus and Plantar Fasciitis.  The private records I submitted show that I still have issues with Plantar Fasciitis.  Another clear sign that the examiner did not review my file. 

That is just some of the things wrong with this DBQ.  Then there is the issue with my IME report being completely ignored. 

It is possible some of my other claims could be approved because my supplemental claim is not yet closed so we shall see.  I have not decided that when I finally do appeal if I go with an HLR or an appeal straight to the BVA.    That depends on what happens with my current HLR.  On this HLR I cited a lot of applicable laws and precedent cases.  If it comes back denied I will not waist time with an HLR when I appeal my supplemental claim. 

[vetquest]

At this point I would go straight to the BVA if your HLR does not consider the IME.  There comes a time when enough is enough.  The decision you need to make at that point is whether to go with or without a lawyer.  Some people have won at the BVA without a lawyer but the lawyer has a better inside track to the BVA.  You lose 20% of your award but that comes with the fact of a lawyer.  When I did my first BVA claim you were not allowed to hire a lawyer and were fully at the mercy of the Board without anyone to make sure that the laws were abided by.