HLR or Board

[SPO]

This might get a little long winded but please stick with me.  I just had my supplemental claim for arthritis closed.  I was awarded 2 out of about 15 affected joints, and suprise, suprise it seems that the reason the others were denied was because of the C&P examiner not doing a thorough exam and incorrect reporting on the paperwork.  The reason for denial on all of them was no diagnosis.  Now the problem with this was that she was provided with a letter and medical records from my rhuematologist (an M.D.) stating specifically which joints are diagnosed and affected, and the letter is  from May 2020, so it is current information (she is a nurse practitioner, and best I can tell specializing in family medicine).  She decided she didn't believe me when I told her joints hurt during the exam so basically said nothing was wrong, thus no diagnosis.  In particular I know she lied about the range of motion of my shoulders.  I have a difficult time getting to 90 degrees on either arm, but her range of motion says 120 degrees.  she did actually measure this, but I know where my arms were and it was less than 90.  She did measure my back (which was approved) but nothing else.  She didn't even actually examine my hands or feet.  She "examined my elbows and knee from across the room.  Also, she stated I have no flare ups, but I know for a fact the QTC questionairre I submitted to her stated that I do, as well as my statement I filed with the claim to the VA.

I called DAV as soon as I left the exam and asked them what to do and they said, just wait for the exams to come in and see what they say.  When the exams came in I couldn't get anyone at DAV to actually look through them all, so they said just wait for the decision.  I finally got someone to look through a few of them (after the decision was made) and from what the DAV is telling me, many of the joints don't look like the reach the compensable level based on her C&P. 

Now I am at a crossroads.  I can either Higher level review and see if maybe they will give me 0% service connection because my doc's diagnosis should outweigh her 10 minute "exam"(maybe a couple 10% ratings if I'm lucky), or get in line at the the BVA.  I'm not sure what to do next and I've heard advice to go both ways from the DAV.  They say I can't fight the bad C&P through HLR.  Any thoughts or advice?

[broncovet]

It sounds like you have a copy of your medical records.  You need to check your medical records to see "if there is a diagnosis" for the conditions you claimed in your medical records.  

If (the diagnosis) IS there, but VA didnt read your evidence, you could try either a SCL or Board appeal.  However, you are almost certainly going to need additional evidence so dont do a HLR because those dont allow new evidence.  

I like the Board appeal..you have already been denied by the VARO.  

The SCL may be faster but it can also be a waste of time, since you may have to appeal the SCL to the Board anyway.  

As always, make sure you have the Caluza elements documented to win your claim.  

[SPO]

I am 100% sure the diagnosis is in there from my doctor.  DAV double checked It was in my file and said it was listed on evidence used.  

I don’t know what additional evidence I could give.  

Edit:  After another conversation with DAV, I've decided to just go ahead and appeal to the board.  According to DAV even if I have the diagnosis in my file from my doctor the VARO is just going to say its older than my C&P exam.  Its wasting time that I could be in line for the board.  The last question is whether to ask for a hearing or just a review.

 

 

Edited August 5, 2020 by SPO

[Fat]

I generally am not in favor of filing for 15 items at once, unless you have medical diagnosis and the medical literature that supports the direct or secondary service connection requirement. 

BroncoVet gave good information I can support.

You are suffering, but a a good claim is all about medical diagnosis and reasonable medical causation.

Take your time, continue the appeal, and make sure every issue has the diagnosis and nexus for service connection.

.........

[SPO]

After multiple discussions with the DAV I have decided to file for an appeal to the BVA with a hearing.  Has anyone had experience on what the wait time for a hearing is with the new Modernization Act.  I know the legacy ones could take many years.  Just curiosity.  

As I gather more evidence for my appeal, would it be advisable to try to get a VA doctor to weigh in for my favor.  I usually use private doctors, but I am nervous to go to the VA because any potentially negative information is then available to the VA.  I've had enough bad C&P exams to know that the VA doesn't always believe us.  Would their word carry more weight and would it be worth the risk?

[Berta]

SPO stated:

  "The reason for denial on all of them was no diagnosis.  Now the problem with this was that she was provided with a letter and medical records from my rhuematologist (an M.D.) stating specifically which joints are diagnosed and affected, and the letter is  from May 2020, so it is current information (she is a nurse practitioner, and best I can tell specializing in family medicine"

Did the VA acknowledge this letter in the Evidence list and decision for denial?

If they had it but completely ignored it that i a CUE under 38 CFR 4..6. A Rhuematologist's diagnosis and medical rationale  ,in my opinion for this type of claim , should outweigh a NP opinion.

If it is a CUE, the HLR might catch it- they have been doing a good job of catchng CUEs here for some members- before the final decision . You could file a CUE yourself ,as well.

An HRL review might take months and correct the CUE, but a BVA decision might take years, particularly if BVA decides to remand the claim.

 

 

Edited August 7, 2020 by Berta
spelling

[Berta]

Have you complained to LHI, QTC, or VES,, or whoever the NP works for , about the C & P exam?