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A little help please


AllTheWay
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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

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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.

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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.

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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.  

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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.

 

 

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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).  

 

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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.

 

 

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This is one of many BVA decisions that show what strong IMOs can do for any vet with secondary disabilities due to pes planus:

"CONCLUSIONS OF LAW

1.  By extending the benefit of the doubt to the Veteran, the criteria for service connection for a bilateral knee disability as secondary to the service-connected foot disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014).

2.  By extending the benefit of the doubt to the Veteran, the criteria for service connection for a bilateral hip disability as secondary to the service-connected foot disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014).

3.  By extending the benefit of the doubCONCLUSIONS OF LAW

1.  By extending the benefit of the doubt to the Veteran, the criteria for service connection for a bilateral knee disability as secondary to the service-connected foot disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014).

2.  By extending the benefit of the doubt to the Veteran, the criteria for service connection for a bilateral hip disability as secondary to the service-connected foot disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014).

3.  By extending the benefit of the doubt to the Veteran, the criteria for service connection for a low back disability as secondary to the service-connected foot disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014).
t to the Veteran, the criteria for service connection for a low back disability as secondary to the service-connected foot disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014).

https://www.va.gov/vetapp15/Files2/1516749.txt

sorry iit did'nt come out as Plain text-

BVA granted the secondarys but remanded also for a proper rating on the foot disabiiity.

 

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7 minutes ago, broncovet said:

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, 

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).  

 

By reading and learning on the Hadit site and great members like you,  I did learn to check the criteria of the C&P examiner. However, on the last claim that I had submitted was a secondary claim due to flat feet. That particular examiner (MD) had 15 years with VA and 30 years as a Dr. She did recognize that I did have problems but did not think that the flatfeet caused it. I do agree with you. Was she an expert in that field? I don't know.

 

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5 minutes ago, Berta said:

This is one of many BVA decisions that show what strong IMOs can do for any vet with secondary disabilities due to pes planus:


"CONCLUSIONS OF LAW

1.  By extending the benefit of the doubt to the Veteran, the criteria for service connection for a bilateral knee disability as secondary to the service-connected foot disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014).

2.  By extending the benefit of the doubt to the Veteran, the criteria for service connection for a bilateral hip disability as secondary to the service-connected foot disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014).

3.  By extending the benefit of the doubCONCLUSIONS OF LAW

1.  By extending the benefit of the doubt to the Veteran, the criteria for service connection for a bilateral knee disability as secondary to the service-connected foot disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014).

2.  By extending the benefit of the doubt to the Veteran, the criteria for service connection for a bilateral hip disability as secondary to the service-connected foot disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014).

3.  By extending the benefit of the doubt to the Veteran, the criteria for service connection for a low back disability as secondary to the service-connected foot disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014).
t to the Veteran, the criteria for service connection for a low back disability as secondary to the service-connected foot disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2014).

https://www.va.gov/vetapp15/Files2/1516749.txt

sorry iit did'nt come out as Plain text-

BVA granted the secondarys but remanded also for a proper rating on the foot disabiiity.

 

Thank you so much Berta. This is some great info that you all are providing for me.

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You got this keep fighting!  All the advice above is amazing!  

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16 hours ago, AllTheWay said:

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 2.26 MB · 10 downloads

I went through literally the exact same thing.  I claimed bilateral flat feet and then claimed knees and back secondary to flat feet in 2011 or 2012.  They were all denied so I asked for a DRO review and the flat feet claim was granted but the knees and back were still denied.  After years of it sitting at BVA and multiple denials in the RAMP process (most recent denial was April 2019), I finally asked orthopedic surgeon in January to write a nexus letter.  I've been a patient of his since 2014.  I actually wrote the letter for him using the template that is part of this group.  I gave him some of my claims file information to review.  He couldn't believe that the VA examiner was saying that flat feet couldn't cause knee and back issues!  

I submitted the supplemental claim with the nexus letter in February and had C&P exams conducted on March 13.  My claims were finally granted last week but they screwed up the effective.  They made the effective date the date they received my supplemental instead of going all the way back to around 2011 so now I have to file another supplemental to get this fixed.

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7 minutes ago, deedub75 said:

I went through literally the exact same thing.  I claimed bilateral flat feet and then claimed knees and back secondary to flat feet in 2011 or 2012.  They were all denied so I asked for a DRO review and the flat feet claim was granted but the knees and back were still denied.  After years of it sitting at BVA and multiple denials in the RAMP process (most recent denial was April 2019), I finally asked orthopedic surgeon in January to write a nexus letter.  I've been a patient of his since 2014.  I actually wrote the letter for him using the template that is part of this group.  I gave him some of my claims file information to review.  He couldn't believe that the VA examiner was saying that flat feet couldn't cause knee and back issues!  

I submitted the supplemental claim with the nexus letter in February and had C&P exams conducted on March 13.  My claims were finally granted last week but they screwed up the effective.  They made the effective date the date they received my supplemental instead of going all the way back to around 2011 so now I have to file another supplemental to get this fixed.

Its a shame that Vets have to go through this much trouble. On top of that, spending out of pocket expenses just to get service connected. I know. I have spent over 10 grand out of pocket on Private Dr. I have been trying to get my back and neck service connected as well for years but of course the denial. I do have a disability lawyer fighting that one right now.

Looks like I am going to have to go that route with knees as well. 

As far a doctor doing an IMO/IME, all of the private docs that I have been to refuses to write them for some odd reason then I hear people stating call people like Dr. Bash etc. So what I don't understand is why do I have to spend to much money and still may get denied and now have to wait for years for an appeal. Its all about the money and not taking care of the vets that had made a sacrifice for their country.

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3 minutes ago, AllTheWay said:

Its a shame that Vets have to go through this much trouble. On top of that, spending out of pocket expenses just to get service connected. I know. I have spent over 10 grand out of pocket on Private Dr. I have been trying to get my back and neck service connected as well for years but of course the denial. I do have a disability lawyer fighting that one right now.

Looks like I am going to have to go that route with knees as well. 

As far a doctor doing an IMO/IME, all of the private docs that I have been to refuses to write them for some odd reason then I hear people stating call people like Dr. Bash etc. So what I don't understand is why do I have to spend to much money and still may get denied and now have to wait for years for an appeal. Its all about the money and not taking care of the vets that had made a sacrifice for their country.

I'm fortunate that I have a really good relationship with my orthopedic surgeon.  He's done a plantar fascia release surgery and an ankle ligament repair on me over the years.  He had no reservations about writing the letter for me and he didn't even charge me for it.  

 

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It really depends on the doctor.  Some can be very good, or they can get scared off my the VA as they will use tactics to get them to not do IMO/IME as they don't want to lose their job.  Thing is I have never heard of one of them losing their job.  Seem like an empty threat but it still makes them shy away.

I am sorry you are dealing with this as I have the same issue and am at the CAVC right now fighting them.  In the end the fight is worth it!

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3 hours ago, deedub75 said:

I'm fortunate that I have a really good relationship with my orthopedic surgeon.  He's done a plantar fascia release surgery and an ankle ligament repair on me over the years.  He had no reservations about writing the letter for me and he didn't even charge me for it.  

 

you got lucky on that one.  Congrats on hanging on to the fight.

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10 minutes ago, shrekthetank1 said:

It really depends on the doctor.  Some can be very good, or they can get scared off my the VA as they will use tactics to get them to not do IMO/IME as they don't want to lose their job.  Thing is I have never heard of one of them losing their job.  Seem like an empty threat but it still makes them shy away.

I am sorry you are dealing with this as I have the same issue and am at the CAVC right now fighting them.  In the end the fight is worth it!

I do agree with you on that one. I haven't heard of anyone losing their job either. My hat off to you for staying in the fight. This is my first time going up to the top and uncertain as how to go about it but I am going. No matter what the outcome will be.

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I agree with Shrektank   a lot depends on your Dr.

VA They will listen to these Dr more than they will listen to us  so our lay statements are truly not read. (jmo)

a LOT DEPENDS ON THE C&P examiner you get too!

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Just now, Buck52 said:

I agree with Shrektank   a lot depends on your Dr.

VA They will listen to these Dr more than they will listen to us  so our lay statements are truly not read. (jmo)

a LOT DEPENDS ON THE C&P examiner you get too!

I do agree as well. The problem is that most VA Docs say that they can not do a DBQ which is a false statement. I usually try to trap them by messaging questions on myhealthevet.

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3 minutes ago, AllTheWay said:

I do agree as well. The problem is that most VA Docs say that they can not do a DBQ which is a false statement. I usually try to trap them by messaging questions on myhealthevet.

Correct,  my VA Phyistrist says its not her job to fill out a DBQ  SO I whip out the VA DBQ and I ask her I said well look here Dr on this VA DBQ is says you can fill it out  you Work for the VA right, '' well yes but that is not why I am here..she still refused to fill it out (for combat chronic PTSD)

I did use some of myhealthvet notes & instant messaging  (good point ALL THE WAY) as evidence in my PTSD Claim  but this has been a few years ago.

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Attached is the DBQ for the last knee exam. I just don't understand why the pa's job is assist to deny. It is redacted.

KNEE DBQ.pdf

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