Secondary claims at the Regional office

[KC3]

I am considering filing a claim for Fibromyalgia on a secondary basis. I will have substantial evidence including:

1. IMO/Nexus from Rheumatologist relating FM secondary to my  SC disability. 

2. Lay evidence from a Chiropractor. This will state I have been a patient with musculoskeletal issues for several years. I look for the RO to ignore this and not even review it. 

3. I will have additional evidence as well. 

 

My fear is that even though I have my eggs in a basket that the VA will send me to a C&P examiner that needs to meet their quota for rejects regardless of pending evidence. 

If this is the case will the RO then ignore the IMO/Nexus from my Rheumatologist and deflect like they are known to do? Has anyone had any experience with this or any secondary issue? 

I am trying to avoid a 6 to 8 year process. Thanks

 

 

 

[KC3]

No need to apologize at all; it was my poor choice of wording.  

[pacmanx1]

The VARO ignores and rejects veterans’ evidence all the time. I am currently in a two decades (twenty) plus years appeal that the VARO just granted me a 1998 unadjudicated effective date to evidence that has always been in my records. Even after the BVA granted my claim the VARO recently, last year refused to correctly award my rating percentage on the same decision. Since this claim was recently granted that should mean that the highest rating should fall under the same effective date but the VARO increased my rating then tried to reduce my rating all while still under appeal status and the BVA then had to make a new decision forcing the VARO to restore my higher rating but instead of doing that, the VARO went with the date I filed my NOD less than 30 days after my initial rating. Keep in mind that under 38 CFR 3.156 (4) States:

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

After denying my claim for these two decades, my claim was granted directly to my service medical records where the CAVC and the BVA finally agreed that I had multiple SMRs and post medical records that substantiated my claim as severe and the VARO ignored this evidence. My claim had to go back to the BVA where I am waiting for the BVA to make a final decision.

 

[brokensoldier244th]

RO's screw up all the time, just saying that there isn't a 'quota'. Difference between RO's and BVA/CAVC is you have 1 'group' paid as lawyers and judges to do nothing but law and legalese and the other that is paid to interpret it on its face without the benefit of the same training. Do I think we (VSRs and Raters) should all be lawyers? Hell no- if Id wanted a law degree I would have done that, plus the additional cost would be either staggering, or marginally more expensive but adding additional months or years to each claim for them to process through a final 'legal' reading by a lawyer/lawyers on staff (hypothetically).

You could have an entire Congress made up of veterans that likely wouldn't approve either of those two situations because each would be untenable to the general public without a huge restructuring of pretty much the entire tax code plus how appropriations work. 

Do I think that we, VSRs and Raters, should have ongoing and continuing training in reading 'legalese'? You bet, and I've suggested it at several levels starting from about the 2nd week I started training, through any local RO meetings/townhalls/discussions on "what can we do better", and continuing up to now with two agency-wide surveys done once a year (and one extra this time when the administration/Secretary changed).  My Masters is in adult distance education and I envision legal vocabulary and application done in bite-size pieces throughout the year on a continuing refresher basis just like the other new and continuing training we go through.

Raters get more of this with their months of extra training to become raters because they actually apply it- VSR's don't have to apply much other than 'does it qualify for potential service connection' and 'do I schedule an exam for it or push it forward for potential grant on its merits alone'. Right now we get most of this on an ad-hoc 'apply as we go' basis, or by doing a lot of it ourselves, with varying degrees of motivation. As Saturday Night Live's "David S Pumpkin/Thousand Floors of Fright" put it after a particularly non-scary elevator stop on a Halloween themed amusement park ride, "Its a thousand floors of Fright....they can't ALL be winners....." and not every VA VSR is hard charging to do it any more than they actually have to. Thus the solution is to somewhere make it so its more required than it is already.

We get some of this starting with our onboarding training for the first 6 months,  the 90 days or so of or 'training wheels' doing claims after, and every month there is a national training/discussion on some aspect or another of the overall process with quizzes etc after each of them but the trainings are usually 3-4 questions about the general reading of a particular regulation and application of that regulation on its face- reading it as a layman just like you do. We (VSRs) don't really get much in the way of actual fundamental comprehension/understanding/vocabulary training. Thus we have to (if you are motivated) google things like prior decisions, Black's legal dictionary, or use one of several various tools/helpers/internal websites created just for this. Plus at the beginning when you are training you lack a grasp of the nuance of much of the legalese trainings because you haven't ever had to see it applied yet in context. 

Another problem is that all of that is spread out over either the internet as a whole-part of which is blocked by our outgoing domain firewall and browser bases security, and the internal stuff is spread out all over the place on the internal VA Intranet because of years of people like me suggesting it, you wishing for it, and higher ups trying to implement it in different ways. VSR's have a lower level of responsibility for the application of the laws and regulations in the claims building process because of the nature and responsibility level that is in our job- that is why there are VSO's on the outside, or claims advocates on the VA side. So part of the problem is that the Raters get claims that just aren't put together very well by us, veterans, VSO's-heck, even lawyers that don't do much work with VA specific law. Throw in Congressional meddling/improving, new BVA decisions, new CAVC decisions and you get a toxic storm that looks like spaghetti straining (in my brain, anyway)- something is always lost or missed.

Its like Microsoft- if you program in .NET and Windows specifically. If you look at Windows 10 in the background its still got tons of code from Windows 7, 8, XP,etc. It never really gets deleted, just overwritten in places or added onto, meaning that at some point as a programmer you get to where its inevitable that there will be bugs and inconsistencies updates that will break things because there is literally too much to ever actually know about all of it. 

 

I'm not defending any of this- im just trying to explain it from my POV as both a veteran and a VARO employee that is pretty low on the totem pole. I do what I can in my space, and suggest regularly ways I think it could improve. Thats all I can do. 

[pwrslm]

If you know there is a link between the FM and PTSD, get some published articles on the topic that says exactly what that link is, and submit that with your claim. Published articles that come from scientific journals are the backbone of medical literature, which carry a significant weight in a claim. It is the equivalence of having one or more professionals attesting that there is a known medical link between this and that. When you do that, and combine it with the statement from your original doctor who said it is likely SC, even the C&P examiner must take that under advisement, and if he does not, your weight on the issue should be enough to cause it to be in equipoise, to your benefit.

[brokensoldier244th]

No it’s not, unless you were in the particular study. You still need a doctor to connect to you, specifically, to whatever the journal says, and that it’s findings are relevant to you. Those journals are only talking about things found in the study sample, they aren’t pronouncing statements of fact over an entire population. 
 

i just finished a masters, I’ve been reading study journals for the last year and a half. 

[KC3]

I have published studies for migraines that my Neurologist used when writing a nexus for secondary status so I could put with my claim at the BVA when my time comes for my hearing. He created a reference page for all studies he considered as well. 

The Rheumatologist is reviewing several as well.