Complicated mess, need advice.

[Confusedvet1 1]

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?

[Confusedvet1 1]

1 hour ago, broncovet said:

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". 

Thanks for taking the time to respond. This whole thing is kind of a cluster lol. 

I filed originally for forearm, wrist, hand and thumb since that encompassed the while area effected. I complained of lots of pains which were consistent complaints. When the BVA service connected it my RO gave me 10% based on pain from elbow that was mentioned in the original CP exam. I never had surgery on elbow and they ignored all my complaints in my records dealing with forearm, wrist and hand pains. I haven't had any new pains and the pains determined to be scar pain during exam have been there since I filed claimed. So maybe that's what I need to bring up during my appeal? I'm at least allowed to say the pain has been the same and consistent. There are a lot of complaints of pain even predating 2013. As I mentioned before as well this decision only used the new CP exam as evidence even though BVA said they needed to review additional medical records VA had in there possession that they never considered.

 

I understand why they did what they did too. I read the rating guidelines. Basically it says NOT to rate scar pain unless the pain is reported as happening during the exam. It says not to rate it 10% based on veteran complaints only since it's subjective evidence. Even though pain at anytime is really subjective evidence. 

 

For the hernia it's still sounding like mentioning it during appeal for scar effective date is a good idea. Best case scenario RO grants it and worse case that should be informal claim and lock in a effective date.

 

[broncovet 3,549]

Yes, argue your reasoning before the BVA.  I won every appeal for EED that I ever sought (and there were several), eventually winning back to 2002.  Be concise, not too wordy, but argue that you put in a claim earlier, if this is so.   You do NOT have to be an expert on anatomy to apply for and win VA benefits, you can even "point to the part that hurts".  If these condtions are related to your original application, you may well win an eed.