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. 

[MidwestAbbott]

Thank you all for your support! When I go to reply the only option at the bottom is "insert image from URL" and I obviously don't have this online. I'd be happy to upload it if I could. Maybe it's something about my new member status? 

Current Service Connected Issues: 10% Tinnitus (2012), 30% Other Specified Anxiety Disorder (2016), 10% Sinusitis, 10% Allergic Rhinitis (both approved from same exam where knees were denied in 2019)

I'm not sure exactly what they have but the evidence says they have private treatment records for my knees, VA medical records and the last thing to arrive were my STR for my entire enlistment. I'm not sure what's in there but I don't recall ever going to sick call for my knees. I could have mentioned it at a demob or something but i was young and tough (haha). How would I get a copy of all of this "evidence"?

[brokensoldier244th]

You can request your STRs here:https://www.archives.gov/veterans/military-service-records

 

But it will take a long time- like, I WORK for the VA and when I request them, at least since march, its been taking months because the Records centers are paper record repositories and some have no one working right now, or barely a skeleton crew. 

 

CAS

[broncovet]

This is "ONE" of the reasons why "you" need to keep a copy of your Service records and "dont depend on VA" to do that for you.  

To answer your questions:

1.  No.  "In service treatment" is NOT required.  What is required is Caluza elements:

a.  CURRENT diagnosis.

b.  "In service event" (not necessarily treatment.  ONE example of this may be parachute jumpers.  They jump out of airplanes.  Often, years later, knee/ankle problems show up.  And it does not take a rocket scientist to connect these dots.  

c.  Nexus, or doc opinion your current diagnosis is "at least  as likely as not" related to an in service event or aggravation.  

2.  No, a nexus is only one of the 3 Caluza elements, descibed above.  You must have all 3. 

3.  There are likely more than one error.  Other than those mentioned, its possible you can have a new and material (relevant) evidence under 38 CFR 3.156 when records are retrieved.  "TIMELINES" are all fouled up due to Covid, and they were in disarray well before covid.  We cant say for sure how long it will take.  But we can throw the dice and guess six months, but that could be way off either way.  

[MidwestAbbott]

UPDATE: I got two letters from the VA, printed 10 days apart but arrived to me the same day. One stated that the error they made was in not assisting me to get enough information. The other says they need lay statements. Does anyone have any advice on this? I have two buddys who served with me on my last deployment in town that I think would be up for writing about me bitching about my "old knees". 

Here's exactly what it says they need:

"We need Lay Statements from individuals having knowledge of your claimed conditions such as other service members who would have witnessed your knee injury and/or witnessed your complaints of knee pain, locking, etc. These individuals should tell us what they observed of your condition, including the approximate dates, places, and circumstances. They should clearly state whether they actually witnessed the event . If they were in service with you they should include name rank and SSN and unit of assignment. All statements must have the following certification: "I hereby certify that this information is true and correct to the best of my knowledge and belief."

[brokensoldier244th]

Well, definitely provide it if you can. Otherwise your claim will have to go to rate without it. If they are seeking lay statements it at least means that they haven't yet closed your claim are are giving you the chance to help flesh out the record despite not having whatever treatment records they were looking for (or they had them but your knees weren't in them). It sounds like your claim probably went to rate, then got a deferral for not following duty to assist, hence, the request for more information. 

[pacmanx1]

Not really sure what is going on with your claim.  A lack of treatment records in not a deal breaker. Based on your post, A veteran can still be awarded service connection. Based on your OP (Original Post) if you already meet the Caluza Elements than why would the VA need Lay Statements?

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.

CONTINUITY OF SYMPTOMATOLOGY, NOT TREATMENT (§ 3.303(B))

§ “[T]he Court notes that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” See Savage v. Gober, 10 Vet.App. 488, 496 (1997) citing Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991) (“regulation requires continuity of symptomatology, not continuity of treatment”).