Reopening back claim after Saunders

[pascoz28]

SO...it seems to me that they basically said because I had no diagnosis that I was out of luck. They admit that I was seen for my back as far back as 1992 and that I've had treatment since discharge. They didn't mention that 'chronic back pain' is listed as an active problem in my VA health record and that I've been on medication for back pain since 2008.

Now that Saunders v Wilkie has reversed the need for an underlying cause, how do I reopen this claim since the pain is in and of itself is now considered a disability?

Thanks!

 

 

 

 

 

Edited March 21, 2022 by pascoz28
Docs not readable (see edit history)

[Dustoff1970]

I cannot read your PDF but you do need a current or a former diagnosis of your medical condition you claim from a qualified MD doctor or medical specialist and No. 2 you need a nexus connecting your medical condition to your service or a nexus statement from an MD giving reasons why they believe your medical condition is related to your service or that it is secondary to another service connected condition you may have now.  They must give detailed explanations/rationale for why they believe this.

Do you have any military medical treatment records from your time in service showing you were treated for back problems or back pain or back injury, etc ?.  This would be most helpful.

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

Edited March 21, 2022 by Dustoff 11 (see edit history)

[pascoz28]

Oops...I'll try to reload those documents...my apologies.

Yes, i do have a diagnosis of 'lumbago' by the VA stretching back to 2008. It is documented in my records that I sought treatment for back pain.

Once you read the denial letter it will make more sense.

Thanks for your reply!

[pacmanx1]

This is not a denial letter; it is a letter asking for more evidence or information about your disability. 

I can see your name and file number that should be redacted or covered up.

Do you have an actual decision letter?

This is known as a VCAA Notice.

What to do when you receive a VCAA Notice | CCK Law (cck-law.com)

Edited March 21, 2022 by pacmanx1 (see edit history)

[pascoz28]

20 minutes ago, pacmanx1 said:

This is not a denial letter; it is a letter asking for more evidence or information about your disability. 

I can see your name and file number that should be redacted or covered up.

Do you have an actual decision letter?

This is known as a VCAA Notice.

What to do when you receive a VCAA Notice | CCK Law (cck-law.com)

I am what some would consider mildly retarded...sorry about that and thanks for pointing that out!! I've added the actual denial letter as well.

[pacmanx1]

I can still see your name, can you please post the complete Reason and Bases section of this rating, please redact all personal information. It is still a little off because at times the VA will deny a veteran's claim even though the veteran may have an accident, incident or an injury in service, but VA fails to acknowledge as part of the claim.

[pascoz28]

24 minutes ago, pacmanx1 said:

It is still a little off because at times the VA will deny a veteran's claim even though the veteran may have an accident, incident or an injury in service, but VA fails to acknowledge as part of the claim.

They state in the VCCA notice and the denial that my STRs show complaints of back pain...seems like they hung their hat on the 'no underlying diagnosis' theory, which is what I believe Saunders reversed, no?

[pacmanx1]

1 hour ago, pascoz28 said:

They state in the VCCA notice and the denial that my STRs show complaints of back pain...seems like they hung their hat on the 'no underlying diagnosis' theory, which is what I believe Saunders reversed, no?

It appears that you have some sort of medical evidence but to what degree I am not sure, but it should be considered. You may want to also consider Clemons V. Shinseki, 23 vet. app. 1-5 (2009) that deals with symptoms claimed V. diagnosis. 

Edited March 21, 2022 by pacmanx1 (see edit history)

[Whodat]

I have tried reopening a claim for cervical/lumbar strain and a knee issue using Saunders vs Willie. 

1. Had an incident or injury while in service noted in my medical records. 

 

2. Have a current diagnosis. 

3. Did not have a Nexus. I thought that the purpose for a c&p exam. Wrong. 

Denied. 

Always gotten advice that I need an IMO/IME. Easily said than done. 

All of my treating doctors were hesitant of writing such letters. 

I did what every vet do. Go online and research for Doctors that do IMO. After seeing the price, no way I could afford that. 

So I lawered up. I use Veterans Law Group. No money up front. 

As previously stated, might be worth to get an attorney to represent you. 

 

[pacmanx1]

3 hours ago, Whodat said:

Go online and research for Doctors that do IMO. After seeing the price, no way I could afford that. 

I personally have never paid for an IMO/IME, I have gotten all my opinions from my VAMC doctors. Instead of getting a letter which some of them did write others wrote a statement in my medical records that my condition was either military related or related to my service-connected disability. I even used a Community Care Provider to fill out one of my DBQs. 

[Whodat]

hello pacman,

I must say that you are one of the few and fortunate people that have a great support system for vets. 

 

[Vync]

39 minutes ago, pacmanx1 said:

I personally have never paid for an IMO/IME, I have gotten all my opinions from my VAMC doctors. Instead of getting a letter which some of them did write others wrote a statement in my medical records that my condition was either military related or related to my service-connected disability. I even used a Community Care Provider to fill out one of my DBQs. 

Similar situation here. The only funds that came out of my pocket which went toward IMO/IME's for a nexus from non-VA doctors was co-pays with my private medical insurance. I did get one great nexus from a VA audiologist. Otherwise, whenever I asked a VA doc for one, they basically either said they are not allowed or said they would, but did not in the end. I do know that at some point, the VA came out with a directive that said a veteran can request the VA provider note the current diagnosis and details, but cannot remember or find a link to it.

[Vync]

For those who want the VA's take on how describes the impact of Saunders v. Wilkie in M21-1:

 https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000090796/Saunders-v.-Wilkie,-Apr-3,-2018,-886-F.-3d-1356-(Fed.-Cir.-2018)

 

 

 

[Whodat]

Great info Vync. I have actually tried that in 2018 when I had reopened my Lumbar/Cervical Strain. I actually worded as to Saunder Vs Willie.  Claim was still denied. 

Like we all say, never give up. That's one of my Appeals. Infact I do have a hearing 27th of Apr.

My point is to try to use different avenues of approach. May not get the answer that you aren't looking for but keep fighting. 

[Vync]

@WhodatI know what you mean. The VARO's don't seem to care about recent court precedents until they show up in M21-1. I am in the same boat because of an HLR (due to CUE) that is presently at the BVA because the VA repeatedly fails to follow their own regulations... Nothing like having the DRO agree with me during the telephone call, but the resulting decision acted like it was never mentioned. Fun stuff!

[JKWilliamsSr]

1 hour ago, Vync said:

Similar situation here. The only funds that came out of my pocket which went toward IMO/IME's for a nexus from non-VA doctors was co-pays with my private medical insurance. I did get one great nexus from a VA audiologist. Otherwise, whenever I asked a VA doc for one, they basically either said they are not allowed or said they would, but did not in the end. I do know that at some point, the VA came out with a directive that said a veteran can request the VA provider note the current diagnosis and details, but cannot remember or find a link to it.

I think it depends on the situation on if someone should or should not pay for an outside IMO/IME.   I think for the most part if you are appealing to the BVA it is not needed because they (unlike a lot of raters) know how to apply the law.  That is why more than 75% are either remanded because of a VA error or outright overturned.

If you are going to spend the money I suggest doing your homework.  I don't think people should just get one because they saw an advertisement for a doctor that would do one.  I do however, think an IMO/IME from outside doctors are a necessary evil.  To counteract the clear bias VA examiners have against service connection. I have a lot of secondary conditions that are caused or aggravated by my service connected disabilities.   For lack of a better way to explain it any idiot should be able to see the correlation but it seems VA raters (at least in my case) cannot.  For example my sleep apnea.   I was tying it to weight gain because of my inability to excercise.  However through my attorney I had an IMO done and the doctor mentioned my weight gain but also mentioned how Asthma (I am service connected for that too) could cause or aggravate issues like sleep apnea.  In the end the BVA judge granted my sleep apnea claim based on the IMO's asthma argument.

There are pros and cons for either side.  I will say this.  For me the pros were for the IMO because the doctor that did mine was cited in just about every one of my BVA grants.

[Dustoff1970]

Yes Dr. Anaise's favorable nexus statement saying my OSA Sleep Apnea condition was secondary to my long term PTSD and PTSD medications help me win a recent 50% grant of benefits from the BVA along with my other positive medical evidence that was totally ignored by the VARO as expected.  VARO rater and VA C&P examiner puke used the usual standard excuse that my 30 lbs of overweight for many years was cause of my OSA. 

The BVA cited Anaise's medical opinion as positive evidence in my case and as required Anaise gave a long detailed rationale explanation as to his reason for stating my OSA was due to my PTSD. Also as required by the BVA he reviewed my extensive copies of VA, private and Army medical records from 1970 to 85 and to the present time in arriving at his opinion.

I received Anaise's opinion AFTER the VARO denial and sent his opinion directly to the BVA.  I am sure VARO would have also ignored his opinion with their standard denial statement of "NO EVIDENCE".

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

[deedub75]

7 hours ago, pacmanx1 said:

I personally have never paid for an IMO/IME, I have gotten all my opinions from my VAMC doctors. Instead of getting a letter which some of them did write others wrote a statement in my medical records that my condition was either military related or related to my service-connected disability. I even used a Community Care Provider to fill out one of my DBQs. 

Same here.

I did have my orthopedic surgeon write a nexus letter - well, I wrote it for him and he signed it. He didn't charge me anything. That's how I finally got my knees and back service connected secondary to my plantar fasciitis and right ankle. For my OSA claim, I just had my VAMC doctor put a statement in my medical records saying that my OSA was more than likely caused by my service connected sinusitis. I tried to get a couple of my doctors to fill out DBQs but they wouldn't. Fortunately, I ended up not needing them. 

[Dustoff1970]

All my other successful claims and appeals since 1985 has been based upon my VA, Army and private doctor, test results, treatment, discharge summaries medical records.  I use both VA and Medicare plus AARP insurance for various medical issues.  I also received at least one positive VA C&P exam out of the many other negative VA exams that I overcame with above records.

In recent years I have paid only one time for a nexus opinion and he gave me a two for one favorable opinions on two different issues.  Happy Camper here.