A little help please

[AllTheWay]

I have been trying for years to get my knees serviced connected but I still get the bid "D" some maybe someone that has had the same experience can guide me to the light.

Applied for bilateral knee condition  in 2009. Denied. No permanent residual or Chronic disability.

Filed again 2012, same thing, as well as 17, 18.

2019 I filed different. Filed secondary to my bilateral flat feet. Had all new evidence, MRI, even a DBQ from my personal Doc. Guess what. The big D.  I opened up a supplemental claim with new evidence. Got the D again. What am I doing wrong Here?

 

Knee Decision.pdf

[Guest]

Doing a brief review of your post, my question is have you appealed any of these decisions? There are times when a veteran must file an appeal to get his/her claim out of the hands of the local VARO. I know this may not be what you want to hear but BVA is sometimes more agreeable than the local VARO. I am not saying your claim will be granted but I am suggesting that you may get a more of a benefit of doubt.  Make sure that you see a doctor whenever your condition is acting up to get it documented and noted in your records.

Don't tough it out, get your symptoms treated.

[AllTheWay]

13 minutes ago, pete992 said:

Doing a brief review of your post, my question is have you appealed any of these decisions? There are times when a veteran must file an appeal to get his/her claim out of the hands of the local VARO. I know this may not be what you want to hear but BVA is sometimes more agreeable than the local VARO. I am not saying your claim will be granted but I am suggesting that you may get a more of a benefit of doubt.  Make sure that you see a doctor whenever your condition is acting up to get it documented and noted in your records.

Don't tough it out, get your symptoms treated.

 

Great question Pete. I did not appeal at all in the past. Wasn't familiar at all with the VA system until around 2017. But I had it so yes this time, I am going to appeal it. I have been studying all of my decision letters for my knees and I see lots of errors and false statements. I am unsure as to should I do a supplemental claim again and point out all of the inconsistencies on a statement of support of claim or should I just do a HLR and see what the outcome will be from HLR.

[broncovet]

You have 2 problems you must solve to get SC.  They are:

1.  You have a "negative" nexus.  The decision states that the examiner opined it was "less likely than not caused by service".  This is fatal to a claim "unless" you can get another FAVORABLE medical opinion.  I suggest you check your medical record(s) and see:  Was the decision accurate, and did the examiner opine this was less likely than not caused by service?

If the doctors report says that, you have some choices in your appeal.

A.  First, you can challenge the competency of the examiner.  Was he a doctor? Did he state he reviewed your records?  Was he a knee specialist or was his degree in basketweaving?  These are all things you can challenge.  

B.  Even so, you are going to need another favorable opinion.  You "may" be able to obtain a favorable nexus from another VA doc, but its likely you will need an IMO.  

2.  Chronicity and continuity.  This was mentioned in the decision.  You may need more evidence that your condition was treated at other times.  Read this: https://www.attigsteel.com/veterans-law-updates/3-common-errors-in-bva-continuity-of-symptomatology-decisions/

I dont see you getting SC until you get an IMO or otherwise get a favorable IMO/IME.  You are not alone, VSO's often help Vets "even when" they dont have a favorable nexus.  Instead, they should ensure their is a favorable nexus and not send their Veteran to be slaughtered in appeals until they are equipped with battle gear:  The Caluza elements.  

[AllTheWay]

10 hours ago, broncovet said:

You have 2 problems you must solve to get SC.  They are:

1.  You have a "negative" nexus.  The decision states that the examiner opined it was "less likely than not caused by service".  This is fatal to a claim "unless" you can get another FAVORABLE medical opinion.  I suggest you check your medical record(s) and see:  Was the decision accurate, and did the examiner opine this was less likely than not caused by service?

If the doctors report says that, you have some choices in your appeal.

A.  First, you can challenge the competency of the examiner.  Was he a doctor? Did he state he reviewed your records?  Was he a knee specialist or was his degree in basketweaving?  These are all things you can challenge.  

B.  Even so, you are going to need another favorable opinion.  You "may" be able to obtain a favorable nexus from another VA doc, but its likely you will need an IMO.  

2.  Chronicity and continuity.  This was mentioned in the decision.  You may need more evidence that your condition was treated at other times.  Read this: https://www.attigsteel.com/veterans-law-updates/3-common-errors-in-bva-continuity-of-symptomatology-decisions/

I dont see you getting SC until you get an IMO or otherwise get a favorable IMO/IME.  You are not alone, VSO's often help Vets "even when" they dont have a favorable nexus.  Instead, they should ensure their is a favorable nexus and not send their Veteran to be slaughtered in appeals until they are equipped with battle gear:  The Caluza elements.  

Thanks BroncoVet. Great advice and a great help.  Will try to answer your questions in order.

1.  You have a "negative" nexus.  The decision states that the examiner opined it was "less likely than not caused by service".  This is fatal to a claim "unless" you can get another FAVORABLE medical opinion.  I suggest you check your medical record(s) and see:  Was the decision accurate, and did the examiner opine this was less likely than not caused by service?

This is from my latest DBQ Verbatim:

Examiner Medical Opinion: It is the opinion that the Veteran does have bilateral knee conditions that are less than likely than not proximately due to or the result of bilateral pes planus and plantar fasciitis.

 

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

The Red Bold looks like a Nexus to me.

The last examiner was a MD the the previous ones were Nurse practitioners.

 

 

[broncovet]

IT sounds like you did your homework.  Here is the phrase the rating specialists look for:  "(diagnosis) is at least as likely as not related to an in service event".

Your doctor said, 

Quote

Veteran does have bilateral knee conditions that are less than likely than not proximately due to or the result of bilateral pes planus and plantar fasciitis.

This sounds like a deal killer.  However, what you posted in red seems to contradict that. 

When their is a "balance of positive and negative evidence (against the claim)" then the claim is in "equipose" and it must be awarded to the Veteran.   You are gonna need to appeal this, probably to the BVA.  The BVA "should" order a new c and p exam unless they can award for equipose when the past c and p exams are in conflict or unclear.  

The BVA, however, can "choose" 1 c and p exam over another "provided that" they give a reasons and bases for doing so.  For example the board can say one exam was "more thorough" if the examiner noted he reviewed your records, while other examiners did not so state.  

Finally, if you can obtain this, try to find out what the examiners qualifications were.  Ok, so one was a doc, the other a NP.  The doc should have priority over the NP, but NOT so if the doctor was unfamiliar with knees, say if he was a internal medicine doctor.  

The idea here is the examiner is an "expert witness".  An expert witness is, well an expert in the field, meaning he has had medical training or experience with your type of cases.  The vA often "pawns off" c and p examiners who are NOT experts, because the examiner is presumed competent absent a challenge from you.  

Example:  I was given a C and P exam by an MD for sleep apnea.  This doctor had no experience in sleep medicine, and was not competent to opine whether or not my sleep apnea was related to service.  The examiner was given a pass because it was a VA examiner.  But, I challenged the exam because the doctor was not an expert witness ON SLEEP APNEA because she had no training or experience in the field (sleep medicine).  

 

[Berta]

Yes,  there is something missing from this, that can be fixed.

I have pes planus ( pronation) but am a civilian. 

The medical podiatry, orthonic community  is well aware of the link from a bilateral pes planus to the cause of additiional knee, hip and back problems.The RO claims people don't have a clue-and probably their C & P examiner didn't have a clue either.

The advice above is great- you need an IMO/IME.

If your private doctor has expertise in this field, the VA probably rejected their DBQ as it did not full the requirements of a valid IMO/IME- and the decisions states that the private doctor did not refer to your SMRs.

You need an IMO/ IME that follows the criteria here: 

Unfortunately this might cost you some cash- because a good IMO/IME doctor will give your SMRs a far better review than the RO would. They often just skim through them, in my opinion.

They have to establish the "nexus"- the link to your service  and rule out any other etiology.

What I mean is, if I were a vet, and claimed my pes planus ,the VA would probably deny my claim because I was a "Walker" for  past county I lived in-before I moved to NY . I walked private school kids to a trailer in my church parking lot, so that they could get speech therapy, and because of church/state separation laws, they could not be given it in our school.I had that and many other etiologies ( reasons) that caused my severe pronation...

Severe foot problems can cause unemployability- can you work with this and your other SC disabilities?

Years ago I posted a BVA decision here- the vet started out with SC pes planus, it then ,over the years, caused him knee, hip and back problems. He had a strong independent medical opinion (IMO/IME)with citations from medical abstracts and treatises, and had applied for TDIU  (and he won )

I hate to recommend IMO/IMEs because some are quite costly- but many of us found it is a Great investment to make. I used 3 IMOs for my most important claim in 2003.. The IMO fees ( 4,000 plus another fee about 1,200 for an IMO I didn't even need and the forensic IMO firm refunded some of that money)

were quickly recovered by the first award they made due to the IMOs.There were many other  monetary benefits that followed, as well.