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.

[JKWilliamsSr]

UPDATE: 

I log in to check the status of my HLR and noticed some changes were made.  This is the second time that I noticed changes to my HLR.  Initially my HLR was for Limitation of Extension (both knees)  Instability (both knees),  Hip Arthritis (both hips) and Diabetes.    They took my hip claims and attached it to my then pending Supplemental Claim.  Why?  I have no idea.    Well today I logged in and I noticed they added Bursitis to my HLR and that makes no sense to me. 

When I filed my claims (Increase, new and supplementals) I submitted an IME from the Ellis Clinic.   The IME was very thorough and what made it so good IMO is that Dr. Ellis made recommendations with ratings codes and what he felt my percentages would be.  When I filed my claims I made sure I filed for the exact thing Dr. Ellis recommended.  For example he diagnosed Lumbar Radiculopathy with Right-Sided Sciatica and he put the rating code of 8520 and recommended 40%.  So when I filed my claim I filed for Lumbar Radiculopathy with Right-Sided Sciatic but I did not put the rating code and percentage.  If they read my evidence they would see the recommendation.   So I followed this pattern for every claim I made.  I filed for the diagnosis that Dr. Ellis gave me. 

So today when I logged in I see that the VA has added Bursitis twice.  I am going to assume that it is for both the right knee and left knee.  This is confusing to me because I have never been diagnosed with Bursitis.  Now my civilian Dr. has diagnosed me with Osteoarthritis in both knees.  My SMR's have Chrondomalacia Patella as diagnosis and my current rating for each knee is 10% for Left Degenerative Joint Disease associated with Chrondomalacia Patella.  I am going to assume the rating code for this is 5024 as this rating was continued from my 2009 claim. 

Anyone have any insight on what could be going on here?

[GBArmy]

JK The VA has to respond to your specific claimed disabilities. They can add new conditions, or include your symptoms in additional disabilities as they develop your claim. They could, for example, eval you for bursitus and if they diagnose that is what you have instead of , say Osteoarthritus, and provide a rating, it is up to you to appeal if it is in your best interests. What happens often is that that with this substitution shell game, especially when a veteran gets some favorable ratings, the veteran just accepts the findings and doesn't challenge it.The veteran can get boxed in because the substitute disability doesn't go very high in ratings. Until you get it in a decision letter, you are just going to be guessing on what they are doing.

[JKWilliamsSr]

UPDATE: 

I received my letter from my Supplemental Claim. I am attaching it to this post.  It is clear that whoever adjudicated my claim had absolutely zero intention of doing any work.  They just did the bare minimum and figured it can be handled in the appeal.  It is clear by the fact that they letter has the bare minimum requirements necessary for decisions.   They did not even list all of the evidence I submitted. You can go here to see the post where I listed all the evidence I submitted for my claim. https://community.hadit.com/topic/77619-pending-hlr-pending-supp-claim-closed-supp-claim-should-i-call-or-file-iris/page/2/#comments 

Now on to the decision itself:

Service Connection for Bilateral Flat Foot:  When I filed my claim I specifically filed for Bilateral Pes Planus  and Bilateral Plantar Fasciitis.   SMR’s were submitted that show the diagnosis in service.  The IME I submitted provided nexus and I also submitted records from my current podiatrist with current treatments which include Cortisone shots for my Plantar Fasciitis.  They completely ignored the Plantar Fasciitis.  On top of that the exam that was given was inadequate.  The examiner stated things that I never said.  The decision was made before I could view the DBQ so I have not yet had the chance to challenge the exam.

Service Connection for Back Condition:  This decision is laughable but not unexpected. When I was last denied in 2009 the denial stated that while I had issues with my back during service there were no actual diagnosis.  So when I reopened my claim I submitted the SMR’s that had the diagnosis that was clearly missed.  Yet somehow they missed it again.

 When I filed my claim I specifically filed for Lumbosacral Strain, Degenerative Disk Arthritis of the Lumbar Spine and Intravertal Disk Syndrome of the Lumbar Spine.  This was the diagnosis and recommended ratings in my IME. While I understand that raters are not obligated to accept the suggestions they are still required to adjudicate the disabilities I claim.  On top of that I submitted private medical records with supporting xray evidence.  They just said “back condition”.

The C&P exam was a joke and a complete travesty.  My appointment was at 1pm on Nov 5^th.   A couple minutes after 1pm I was called in by the examiner.   The examiner did a full Back C&P exam, completed the DBQ and opinion and had it uploaded into the system at 1:14pm.  All of that was completed in a little over 10 minutes.  I was able to see the C&P exam on December 5^th and saw just how bad it was.  The examiner stated things I never said,  Stated he performed parts of the exam he never did.  I challenged this C&P exam and faxed it in Dec 9^th 2019 and have confirmation of delivery.  So it was in the record at least 2 months before the decision was made and it was never even addressed.

Left and Right Ankle Pain:  My IME is for direct service connection and that could be an issue because I was not seen in service even though I had many ankle twists and sprains but back then we just taped it up.  I think it could also be secondary to my foot issues so I am going to see if I can get my podiatrist to write me a nexus letter for that.

Service Connection for Sleep Apnea: This is also something that my IME is for direct service connection but my own statements of snoring in service may not be enough.   I am working on getting my 1^st wife to write a statement to say that I snored often and loudly in service so I can probably re-open with that.   However, I am also service connected for Asthma (30%) and I have seen people say that Sleep Apnea can be service connected secondary to Asthma.   So I am going to research that but if the case it is something the rater should have considered but we all know they never do.  I did not get a C&P exam for my sleep apnea.

There were a number of claims that were not addressed in my letter.  I filed claims (secondary claims) for Lumbar Radiculopathy with Sciatica (both sides), Right and left Hip Arthritis (secondary to knees, feet and back),   My assumption that since they continued the denial for my back they did not bother to make a decision on those. 

Feb 2020 Decision Letter.pdf

Edited March 10, 2020 by JKWilliamsSr

[Vync]

@JKWilliamsSr
On my recent CUE, which was handled as a HLR, they did the same thing. It was half right and half wrong. For evidencem, they normally list either "all evidence of record" or "VA medical records dated (date) to (date)", but that didn't happen here. They just listed some specific dates and missed other relevant evidence.

The term "back condition" is probably in your favor. It is vague enough that it should probably cover any kind of back condition. If they had focused solely on one specific spot, that would mean they could overlook everything else involving your back.

Some C&P docs may have reviewed the evidence ahead of time. That would leave them to only to the physical part, populate the fields, and hit submit.

Did you ever get the response regarding challenging the fibs and inaccuracies in the C&P exams?

If they didn't address specific disabilities, call them and ask about them. Normally, the if VA is not ready to make a decision on something, they will tell you that it is deferred or pending development. I have no doubt that the VA totally missed some of your claimed issues.

[JKWilliamsSr]

17 minutes ago, Vync said:

On my recent CUE, which was handled as a HLR, they did the same thing. It was half right and half wrong. For evidencem, they normally list either "all evidence of record" or "VA medical records dated (date) to (date)", but that didn't happen here. They just listed some specific dates and missed other relevant evidence.

Based on the letter it is clear that they did not review all the evidence.  They did not even list the evidence I submitted for the supplemental claim.  This could work to my advantage though because I have an IME that provides a nexus for disabilities.  I have seen a number of decision where the C&P examiner did not review favorable evidence to the veteran before they made their opinions on the DBQ.  For this reason the BVA just stated that C&P examiners opinion will not be considered for the opinion and base on the other favorable evidence they award service connection to the veteran. 

20 minutes ago, Vync said:

The term "back condition" is probably in your favor. It is vague enough that it should probably cover any kind of back condition. If they had focused solely on one specific spot, that would mean they could overlook everything else involving your back.

That is the thing that baffles me the most.  I did not file a claim for "Back Condition"  the VA just gave my claim that generic term.  I was specific to what I was actually claiming base on my IME.   I claimed the following exactly as you see it here:

Lumbosacral Strain
Degenerative Disc Arthritis of the Lumbar Spine
Intravertebral Disc Syndrome of the Lumbar Spine
Lumbar Radiculopathy with Right Sided Sciatica
Lumbar Radiculopathy with Left Sided Sciatica

26 minutes ago, Vync said:

Did you ever get the response regarding challenging the fibs and inaccuracies in the C&P exams?

Nope.  I did not get a single reply.  No call or anything concerning it. I do know the VA received it though.  I have the fax confirmation and I also called the 800 number to confirm they had it. 

[Vync]

@JKWilliamsSr It is definitely frustrating when the VA rushes to flip claims so fast that they miss things. I would have to say that the presumption of regularity is definitely out the window on this one. For them to miss so much says a lot.

For the back, they would have considered the secondary radiculopathy if SC was granted. That might be why they didn't mention it. However, radiculopathy is a nerve issue and they should have at least mentioned that.

Did you challenge the C&P via a letter or did you file for a correction of medical records using the designated form? With how form-happy the VA is nowadays, it wouldn't surprise me if you get a letter eventually about it. I'm not sure if it would even appear as a claim on va.gov, but then again, I have not yet tried to request a correction.