Is lack of treatment records a deal breaker?

[MidwestAbbott]

I have roughly one million questions but I'll try to keep it simple. This is the first time I am appealing a denied claim (though not my first denied claim - I currently have 50% combined). Almost exactly one year after my C&P exam I finally got a denial for both of my knees).  I did a HLR informal conference and now my va.gov status says "The VBA is correcting an error".  Here is the decision I received on Dec. 7th after the Higher Level Review (sorry I couldn't figure out how to add image) and below that are my questions.

Decision:

• 1. A duty to assist error has been identified during the Higher Level Review of left knee pain.
• 2. A duty to assist error has been identified during the Higher Level Review of right knee pain.
• Evidence:
• Timeline from intent to file on 10/2/19 to HLR informal conference on 12/2/20
• Reasons for Decision:
• 1. Higher Level Review for left knee pain
• The issue of left knee pain was returned for correction of a duty to assist error in the prior decision. We failed to get other records. We will develop for lay statements and if warranted additional opinions. (38 CFR 3.303, 38 CFR 3.304, 38 CFR 3.159, 38 CFR 3.2502, 38 CFR 3.2601)
• Favorable findings identified in the decision:
• You have been diagnosed with a disability. The VA exam dated 11/7/19 showed a diagnosis of patellofemoral pain syndrome.
• 2. Higher Level Review for right knee pain
• The issue of right knee pain was returned for correction of a duty to assist error in the prior decision. We failed to get other records. We will develop for lay statements and if warranted additional opinions. (38 CFR 3.303, 38 CFR 3.304, 38 CFR 3.159, 38 CFR 3.2502, 38 CFR 3.2601)
• Favorable findings identified in the decision:
• A nexus or link has been established between your claimed issue and an in-service event or injury. During VA exam dated 11/7/19 the VA examiner provided a positive medical opinion linking your right knee to service.
• You have been diagnosed with a disability. The VA exam dated 11/7/19 showed a diagnosis of right meniscal tear, right knee instability, and patellofemoral pain syndrome.

MY QUESTIONS

1. Am I just out of luck because I didn't seek treatment during Active Duty?

2. Under "favorable findings" it states that "a nexus, or link, has been established between your claimed issue and an in-service event". Isn't that the literal definition of a service connected disability?!

3. What is the error? What have you all seen as timelines and outcomes for this? 

 

Thank you to everyone who takes the time to respond and post. Reading these questions/answers over the last year has been both educational and comforting. 

[brokensoldier244th]

The error is that somewhere down the line the VSR or rater failed to develop for records somewhere- either service STRS, private treatment that you may have identified, or VISTA/Capri (VAMC). So, the claim was remanded back to the RO. The examiner has already rendered an opinion, so, basically the RO will have to at least request/make an effort to satisfy whatever they didnt get before because Congress says so. 

Edited January 5, 2021 by brokensoldier244th

[El Train]

I had favorable evidence, in my denial letter.  A diagnosis and outside MD's IME linking in service incident caused the disability (lumbar spine, radiculopathy).  Denial letter stated no in service incident, which isn't true.  I've got another approved claim because of the in service incident (a tbi due to a rappelling accident).  HLR continued the denial. I'm appealing it.

The denial letter stated lack of treatment records after service and no in-service incident (which should have been an error through HLR).  The no treatment records is true since they destroy these records after 7 years.  I had no intention of filing a claim until 23 years later.  I sought treatment ever since I got out and still to this day.  Just didn't have the records up until 7 years ago.  Lay statements did no good.  I didn't seek treatment for my tbi 'ever', and it got approved.

At least your HLR found errors.  I think eventually you will get your claim approved.

I'm 100% P&T so the wait on any outstanding appeals doesn't really bother me.  Yes, I am SMC-S for those who are wondering.  No back pay there I don't think.

[Berta]

"1. Am I just out of luck because I didn't seek treatment during Active Duty?"

Not at all because they say:

"2. Under "favorable findings" it states that "a nexus, or link, has been established between your claimed issue and an in-service event". Isn't that the literal definition of a service connected disability?!"  Yes it is.

"3. What is the error?"

Maybe the rater could not read.

What have you all seen as timelines and outcomes for this? "

That often depends on your next step-

Something is wrong here- maybe,in an effort to correct a DTA error, they might have made a typo

under Favorable findings.....I am at a loss ... can you scan and attach the actual decision here to contain the Evidence List ?

What is the 50% for? Obviously VA had your SMRs when they awarded that claim.

Did you have private treatment records and/or VA medical records that the IME doctor based their opinion on?

Please cover your c file # , name, address prior to scanning it.

When you scan it you can save it into a word doc or pdf and then when you go to the "choose files "thing at bottom of the reply box ,it should pop up as an attachment.

When you described the inservice nexus were you able to detail it as to time and place?

I have seen VA say to vets that JSRRC could not verify their claimed incident.

I told a few vets to write to JSRRC themselves and give them details, and some got the evidence from JSRRC that they needed and succeeded in their claims..

 

 

 

 

[Foxhound6]

As everyone has stated above, it doesn't look bad. It appears more an "administrative" error. At some point, the VA just failed to attempt to get a portion or your records, whether that is STR's, private docs or even LAY STATEMENTS.

Side note: even under other circumstances, lack of STR's for an issues is never a deal breaker. Could it be a little more challenging? Yes. However, it is not a deal breaker. My own experience, so far, can attest to that. My current claim appears to be stating that my issues will be presumptive and that is directly due to lay/buddy statements.

If you could find a way to upload a redacted copy of letter or just the evidence list as Berta mentioned, it may help in wrapping our heads around the Nexus/In-service event conundrum?

Edited January 5, 2021 by Foxhound6

[Buck52]

 When were Denied?

Denials and What We Decided will help us when we send in our NOD (Notice Of Disagreement)

WHY DID THEY DENIY? They have to let you know why they denied you  no matter what their excuse is  to deny!

. We will need to send in probative evidence as to why they were Wrong.  and that evidence usually comes in the form of Medical Records and Doctors Notes  Favorable to the Veteran .

How do we accomplish this  feat.?  its called an (Independent Medical Opinion) or IMO from a Qualified Medical Dr.  or Specialist  depending on the Denial  as to  to use a Specialist.  BUT if you can't get a specialist  then a MD in the field of Medicine your claiming should be ok.

   Stay away from the  N.P.(Nurse Practitioners)   and P.A. Physician Assistant.   Unless a MD Signs off for these type medical personal.

[Carl the Engineer]

Simply looks to me like when you appealed they looked at your claim(s), they found evidence that they did not consider when they denied your claim.  

Which begs the question.  If a Veteran claims a disability, and after the Veteran gets a exam and the rater looks at everything, he/she denies the claim, and you get the denial letter.  Then a month or two later, the VA receives a medical record, un-enounced to the Veteran, which supports the Veterans claim, from some unknown military hospital. Records are added all the time.

Hmmmmmmm.

Hamslice

This is why we must get our C-File right before we file each new claim.  And, I think we should also request are records from St Louis, etc., every time.  Cause stuff gets added and they, the military and the VA, do NOT inform the Veteran.

Case in point.  I was told that I was going to be passed over for promotion to Major in the reserves, because I did not have a Bachelors Degree, and I could either get booted or resign my commission and become enlisted, again, which I did.  As an aside, I was a Company Commander and a Master Sergeant in the same battalion about 12 years later.  Probably one of one.  Anyway, 7 years later, when the military went to all digital records, I requested mine, and low and behold, the US Army had promoted me to Major.  The promotion order had come to State HQ and the clerk said hey, we don't have a CPT Bxxxxx, and her supervisor had her send to order to Officer records somewhere as I had resigned my commission, but I was actually currently on duty in a unit in the state.  I did make an official appeal to the military, but to late.....