Denied Service connection for Dry Eyes, Halos in eye (Had PRK) and Wrist arthritis

[Myodie]

I just filed my 1st claim after 20 yrs in for disability. I was denied for dry eyes and halos in the eye (night time driving issue). I was also denied for the corneal tear I had due to the the dry eye (happened on active duty). While I did have the PRK done while I was in, I have been on lubricating eye ointment for 5 plus  yrs now (discharged dec 2020). I was denied due to the elective PRK surgery. However I found case law that states residuals from the surgery (halos and dry eye and in my case the corneal tear) should be service connected even if the surgery was elective. I also was denied connection for my wrist I injured and have been on profiles and physical therapy since then to include being issued a wrist widget for the last 8 yrs. This injury occurred on deployment. How do I use VA case law to file a claim on the appeal? What kind of appeal should I file? I don't have money for a lawyer so realistically this isn't an option for me.

 

Here's the case laws I found

https://www.va.gov/vetapp15/files3/1522780.txt

https://www.va.gov/vetapp08/files5/0839672.txt

 

Thanks

M

[GBArmy]

Welcome Myodie to Hadit. I am assuming that it has been less than a year since you received your denial as you want to continue a claim within a year to get the earliest effective date when you win your case. What does your denial letter say? You might want to block out personal info like name etc. and post it here. Eye disabilities are difficult see https://www.law.cornell.edu/cfr/text/38/4.79  Some basics: to have a disability you need 3 things: 1) a current diagnosis. That is key, you are not a doc or medical professional. You need to have a current diagnosis from a doctor. 2) you have to have the disease, injury or event occuring while in the service. STR's, medical evidence in your files, documentation relative to your profiles would help here. And 3) you have to have a connection, or nexus, between 1 & 2. So you have to have the symptoms that are documented and connected by your eye doc that what happened then is the cause of your symptoms now.  Same for your wrist; What are your symptoms now; what are you claiming? Look up the diagnostic code for wrist injury at   https://www.law.cornell.edu/cfr/text/38/4.124a I don't know what your diagnosis is or even if you have a current one from a doc. Same things apply-3 elements needed. It may be you didn't have a current diagnosis that resulted in denial. Lastly, if you have a denial, you can use a lawyer and some very often will work out the financials you you may be able to pay all fees out of the back pay. Too many questions here to make a more direct recommendation, but if you fail on appeal, you may want to consider a lawyer. Most people would like rather receive 80% of back pay as opposed to getting 100% of $0. 

 

[Myodie]

I do have a diagnosis for all the issues I listed above since I was on active duty. I have been prescribed lubricating drops for my eyes since active duty. The corneal tear occurred while active as well. All of these issues have been diagnosed since I was active. The denial for the eye conditions is due to the elective PRK procedure that the military performed on my eyes. However I am seeing case law that states this should be service connected which i referenced above. My wrist was denied due to them believing it was a one time event instead of an ongoing issue. 

[GBArmy]

If you have a current diagnosis, 1 year or less is better, if whatever you are claiming happened in the service, then the 3d thing is a nexus. Do you have a doctor saying a current condition/symptoms are directly related to service connection? You should know the diagnostic code you are trying to use and where your current symptoms relate to a disability rating for them. ex. 10%, 30% etc. What is the wording on the decision letter?

[pacmanx1]

13 hours ago, Myodie said:

I just filed my 1st claim after 20 yrs in for disability. I was denied for dry eyes and halos in the eye (night time driving issue). I was also denied for the corneal tear I had due to the the dry eye (happened on active duty). While I did have the PRK done while I was in, I have been on lubricating eye ointment for 5 plus  yrs now (discharged dec 2020). I was denied due to the elective PRK surgery. However I found case law that states residuals from the surgery (halos and dry eye and in my case the corneal tear) should be service connected even if the surgery was elective. I also was denied connection for my wrist I injured and have been on profiles and physical therapy since then to include being issued a wrist widget for the last 8 yrs. This injury occurred on deployment. How do I use VA case law to file a claim on the appeal? What kind of appeal should I file? I don't have money for a lawyer so realistically this isn't an option for me.

 

Here's the case laws I found

https://www.va.gov/vetapp15/files3/1522780.txt

https://www.va.gov/vetapp08/files5/0839672.txt

 

While you can cite BVA decisions, they are not precedent and the BVA do not have to accept them as evidence in your particular case. Depending on your evidence in your records you may or may not win an appeal. We do not know what is in your records, so it is hard to say.  Precedent decisions come from the Court of Veteran appeals.

You can search USCAVC 

US Court of Appeals for Veterans Claims - Home Page (cavc.gov)

[Vync]

To add to what @pacmanx1recommended, don't take the BVA decisions at face value. Look at the references made in the BVA decisions, such as U.S. Code, regulations (38 CFR), and court precedents. The BVA will regularly quote from them and describe how they may be in favor of or against the veteran. You may be able to apply the underlying referenced context to your situation. For example, look at how the BVA determined that the corneal tear and residuals of PRK surgery could be deemed SC. Just be aware that you are unable to see all of the other details of each BVA decision, so your case may differ.

Additionally, consider posting the "reasons and bases" from the decision letter, but be certain to redact or remove any personally identifiable information. Understanding how the VA denied your case can be very helpful to others who may try to offer their opinion. Just 

 

[Mr cue]

When did you get the denial you have a year to appeal.

 

My advice is to just claim as eye injury on the appeal

make the VA rate it  and name the condition

I believe it will be service connect.

You had a eye injury in service that cause you to have eye surgery.

You still have problem with the eye and have been on meds for it.

See this make it much similar and the VA has to rate it.

I don't claim condition I claim neck hand elbow mental health.

Than the doctor reports and comp exam are use to name the condition.

By the va

Because claim condition give the VA wiggle room to denied you were never treated for xyz in service.

 

When it was a eye injury service.

 

When did you get the denial you have a year to appeal.

 

My advice is to just claim as eye injury on the appeal

make the VA rate it  and name the condition

I believe it will be service connect.

You had a eye injury in service that cause you to have eye surgery.

You still have problem with the eye and have been on meds for it.

See this make it much similar and the VA has to rate it.

I don't claim condition I claim neck hand elbow mental health.

Than the doctor reports and comp exam are use to name the condition.

By the va

Because claim condition give the VA wiggle room to denied you were never treated for xyz in service.

 

When it was a eye injury service.

 

[Dustoff1970]

You have just received some excellent advice from the others just before me.  I can add nothing further except the following information for any other future claims you may file.

Even though you may meet the criterial and qualifications for a VA service connection disability you may not be able to receive an important formal doctors nexus opinion or DBQ stating your disability is due to your service or another service connected condition because some doctors and their staffs are lazy, indifferent or hostile to vets receiving VA money.

Here is what has worked for me since 1987 to present day.  I have submitted copies of VA, Army, private medical records and other evidence with my numerous claims and appeals with almost 100 percent success and won those claims/appeals without a doctors nexus statement with only one recent exception where the paid for opinion was also successful.  I have been 100% P&T since 98 and now also with SMC-S.  

IF you contact me I can send you a detailed list of the medical and other evidence that has won my claims and appeals.  What has worked for me is no guarantee it will work for you.

It is a disservice IMHO for anyone to discourage a vet from filing a disability claim just because they cannot get some chicken*** doctor to fill out a DBQ or sign a nexus statement as the vet may still have the other medical and non medical evidence in their files or possession to win. 

I encourage vets to seek opinions of others and do their own research as I have done.

Some vets like to brag about their receiving a VA or private doctors nexus opinion free of charge or it was paid for by their insurance or others and I congratulate them on their good fortune.  I have learned and worked the hard way for my benefits and proud of it.

I learned many years ago to in my case to correctly assume the VARO will deny my claim with a BS statement like "NO EVIDENCE" and then I have to appeal to the BVA or higher U.S. CAVC court which I have done on my own successfully.  This has created jealously on part of some other vets.  Too Bad they can still get happy.

My comment is not legal advice as I am not a lawyer, paralegal or VSO representative.