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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

HadIt.com Anniversary 24 years on Jan 20, 2021
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Complicated mess, need advice.


Question

Hello,

I would really appreciate some guidance on next steps. Please let me know if I forget any useful information. I had 2 items go to the BVA. I had a claim for tenosynovitis of right hand/wrist/forearm which was originally denied connection and the other issue was for scar. 

The BVA said my tenosynovitis was service connected so that was taken care of.

 

The scar was remanded because of a incomplete c&p exam. Pretty sure when I filed NOD I also said I did not agree with the exam because I complained of scar pain and the examiner never mentioned it at all. So my initial rating for scar was 0%.

Like I said I filed NOD after initial 0% assignment. Couple weeks back they gave me another c&p exam like the BVA ordered. This time the examiner actually wrote down that I complained of pain so they rated me at 10%. However they changed my effective date from 2013 to Oct this year because the previous exam didn't mention pain

 

I'm obviously going to appeal this again but what do I say? What's best way to go about it?

 

Second part of question is about VA duty to assist. I had no idea there was a rating possible for hernias. Because of the surgery for tenosynovitis which is service connected and where the scar is which is service connected I have a hernia where muscle bulges through and raises the skin. That hernia has always been there. Should the VA have included that? Any examiner can see it clearly when looking at forearm and my last c&p examiner for scar said she would note it. Can I get that connected with a effective date of 2013 which is when the tenosynovitis is and my original 0% scar was?

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You can always try, but the issue is if you don't show it somewhere in your records where you complained about pain or something like this then they will go with when you did. You can always figh

I would state it in there, that is what i would be fighting for.  

Thanks again really appreciate it. Glad to have confirmation I'm going about this the right way.

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This is from BVA. My SSOC says they only considered the new exam and not any of the information the decision says they needed to consider. Also I'm assuming my hernia would be considered soft tissue damage since the tissue holding muscle in no longer does. So I'm thinking that means hernia should be added with a 2013 effective date?

Entitlement to an initial compensable rating for right wrist surgical scar, status post tendosynovectomy, is remanded.

The Veteran was most recently afforded a VA scar examination in February 2015. The examination report, however, does not include all necessary information to properly rate the Veteran’s right wrist scarring under the appropriate criteria. For example, only the length of his right wrist scar was provided and no information was given as to whether there was any underlying soft tissue damage. Therefore, a new examination is necessary to ascertain the current severity and manifestations of the Veteran’s service-connected right wrist scar.

Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Medical Center (VAMC) in Canandaigua, New York/VA outpatient clinic (VAOPC) in Rochester, New York and are dated to August 2017. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them.

Lastly, following a February 2016 supplemental statement of the case, additional evidence has been associated with the Veteran’s claims file by the agency of original jurisdiction (AOJ) that is relevant to the issue of entitlement to a higher initial rating for the service-connected right wrist scar. This evidence includes VA treatment records from the VAMC in Canandaigua, New York/VAOPC in Rochester, New York dated from December 2015 to August 2017. This relevant evidence has not been considered by the AOJ and no waiver of initial AOJ consideration of this evidence has been received. See 38 C.F.R. § 20.1304 (c). Hence, the Board is required to remand the right wrist scar issue for issuance of the necessary supplemental statement of the case.

The matter is REMANDED for the following action:

1. Obtain the Veteran’s outstanding VA treatment records from the VAMC in Canandaigua, New York/VAOPC in Rochester, New York for the period since August 2017; and all such relevant records from any other sufficiently identified VA facility.

2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right wrist scarring. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 

Specifically, the examiner should report the nature and severity of any right wrist scarring, to include whether any scar causes any limited motion or loss of function. Each scar size (including BOTH scar length and width) and whether any scar is superficial, deep, associated with underlying soft tissue damage, nonlinear, unstable, or painful should also be noted.

To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected right wrist scarring alone and discuss the effect of the disability on any occupational functioning and activities of daily living. 

The examiner must provide reasons for any opinion given.

3. After the above development, and any additionally indicated development, has been completed, readjudicate the remaining issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case that considers all additional relevant evidence (including the VA treatment records from the VAMC in Canandaigua, New York/VAOPC in Rochester, New York dated from December 2015 to August 2017, and all additional relevant evidence received since the February 2016 supplemental statement of the case) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review.

 

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49 minutes ago, Confusedvet1 said:

Ok so even though I never technically filed for hernia should I just include it in my appeal for the scar effective date? Like I said too the examiner said she would note hernia. I don't have access online to exam notes though since it was through a 3rd party VA contracted with.

I would state it in there,

4 minutes ago, Confusedvet1 said:

This is from BVA. My SSOC says they only considered the new exam and not any of the information the decision says they needed to consider. Also I'm assuming my hernia would be considered soft tissue damage since the tissue holding muscle in no longer does. So I'm thinking that means hernia should be added with a 2013 effective date?


Entitlement to an initial compensable rating for right wrist surgical scar, status post tendosynovectomy, is remanded.

The Veteran was most recently afforded a VA scar examination in February 2015. The examination report, however, does not include all necessary information to properly rate the Veteran’s right wrist scarring under the appropriate criteria. For example, only the length of his right wrist scar was provided and no information was given as to whether there was any underlying soft tissue damage. Therefore, a new examination is necessary to ascertain the current severity and manifestations of the Veteran’s service-connected right wrist scar.

Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Medical Center (VAMC) in Canandaigua, New York/VA outpatient clinic (VAOPC) in Rochester, New York and are dated to August 2017. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them.

Lastly, following a February 2016 supplemental statement of the case, additional evidence has been associated with the Veteran’s claims file by the agency of original jurisdiction (AOJ) that is relevant to the issue of entitlement to a higher initial rating for the service-connected right wrist scar. This evidence includes VA treatment records from the VAMC in Canandaigua, New York/VAOPC in Rochester, New York dated from December 2015 to August 2017. This relevant evidence has not been considered by the AOJ and no waiver of initial AOJ consideration of this evidence has been received. See 38 C.F.R. § 20.1304 (c). Hence, the Board is required to remand the right wrist scar issue for issuance of the necessary supplemental statement of the case.

The matter is REMANDED for the following action:

1. Obtain the Veteran’s outstanding VA treatment records from the VAMC in Canandaigua, New York/VAOPC in Rochester, New York for the period since August 2017; and all such relevant records from any other sufficiently identified VA facility.

2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right wrist scarring. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 

Specifically, the examiner should report the nature and severity of any right wrist scarring, to include whether any scar causes any limited motion or loss of function. Each scar size (including BOTH scar length and width) and whether any scar is superficial, deep, associated with underlying soft tissue damage, nonlinear, unstable, or painful should also be noted.

To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected right wrist scarring alone and discuss the effect of the disability on any occupational functioning and activities of daily living. 

The examiner must provide reasons for any opinion given.

3. After the above development, and any additionally indicated development, has been completed, readjudicate the remaining issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case that considers all additional relevant evidence (including the VA treatment records from the VAMC in Canandaigua, New York/VAOPC in Rochester, New York dated from December 2015 to August 2017, and all additional relevant evidence received since the February 2016 supplemental statement of the case) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review.

 

that is what i would be fighting for.  

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It sounds like you did/should appeal to the BVA, the effective date of your 10 percent rating.  However, its possible you had a scar which just started hurting when you reported pain to your C and P examiner, so you may need evidence to support you had pain with that scar since 2013.  Medical evidence.  This "may" require an IMO/IME to opine that you had pain with this scar since 2013. 

A Veteran is competent to describe his or her pain, however, so your testimony, if you have had pain since 2013 may suffice.  There was a case where the CAVC said something close to a Veteran is competent to describe surroundings and events, and the VA can not disregard the Veterans testimony based solely because the Veteran is an "interested party" in the outcome. 

This does not mean you can self diagnose your condition, but it can mean you can report that you were in a car accident, and suffered a leg injury.  The doctor has to diagnose a fracture, and a link to service, but you are competent to describe you were involved in an auto accident, and whether or not you were treated for injuries. 

As far as a "duty to assist", the Va is not required to "go on a fishing expedition" and rate you for all conditions that may be SC.  The burden is on you to apply for and seek benefits for each condition.  The regulations state that, to be an informal claim it has to meet these criteria.  (NOTE informal claims were ended in Feb. 2015, after that, all claims have to be on the form prescribed by the secretary):

1.  The informal claim needs to be IN WRITING.  Telling the doc, "I wish to also apply for arthritis" is insufficient, UNLESS the doctor writes down your request. 

2.  The Veteran must "specify the benefit sought". 

3.  This applies only to claims FOR INCREASE, and pre supposes you have already filed a "formal claim" 21-526.  YOUR first claim must be on the form. 

      You can go through your file to see if you can identify where/when you specified "the benefit sought" where it was written down to see if you can qualify for an eed based on the fact you applied much earlier, with an informal claim. 

      I once got tinnitus effective date because I spoke on the phone with a VA employee.  I mentioned to the employee I wanted to apply for tinnitus, that I did not know it was possible to apply for that, previously.  The employee "documented" my phone call, in writing with the date on it.  Later, I got tinnitus (10 percent) back to that date because I satisfied all 3 elements above, required to establish the "claim date". 

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