BVA Allowed VARO to combine 2 Separate Conditions

[USNDW]

So, haven't been here for awhile, tried to stay offline.

Filed a claim for Seronegative RA in Sep 2009, went through the entire process to the BVA, got an examiner who agreed with the SNRA diagnosis. VARO actually rated 12 joints for residuals. I also had a pending request for increase for the left knee following meniscus removal from October 2010. Separate from the SNRA.

I got a letter from the BVA that stated my SNRA for the left knee was granted?

Never got a SOC for the SNRA, but the BVA decision stated I was sent one 7/2021.

I immediately filed  NOD to the VARO with an error because they combined 2 separate claims. I had claimed SNRA as a chronic presumptive disease, not associated with any joint, and asked for a 100% rating in 2009.

I also filed a Request for review from the BVA and sent back the original claim for SNRA as a disease, not a residual

I called the Senators office and they only sent a general request. Not specific for the error.

Anything else I should do???

Still have a pending Specially Afapted Housing open at the BVA, amd increase for the left knee, so it is still there and I need to get them to correct their error. I have sent evidence and statements to support that claim for error

[Dustoff1970]

I would try to find an experienced and motivated (hopefully) paid VSO at the nearest VA Regional Office or VA hospital to assist you with your involved claim/appeal and medical condition.  Of all the VSO organizations such as DAV, VFW, Legion, AMVETS, etc I think Paralyzed Veterans of America (PVA) are by far best at representing their vets and you may qualify for their assistance if you have bone/joint issues.  Give them a call.  Their website will list location of their PVA VSO.

I am not a member of PVA but a life member of VVA and DAV, VFW.

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

Edited June 20, 2022 by Dustoff 11

[USNDW]

Problem with looking at VSO's, I have talked with 2 separate organizations and they do not seem to understand the issues. I did my VA Claim, and ended up with 100% with SMC S-1 and K, got benefits that several VSO's who I spoke with told me were impossible to get.

Issues are I had a claim for Seronegative Rheumatoid Arthritis starting in September of 2009. If I told the story of the denials most people would not believe it. First denial was because they erred on my dates of service, stating I served from 2001 to 2003, instead of from 1985 to 2008, Active Duty 23 years.

After a CUE they then scheduled and exam, even though in the denial they stated that my doctor had diagnosed Seronegative RA.

The second denial was because the examiner stated there was no blood markers for RA. So once again I filed a CUE and sent them medical research proving that was why the term "Seronegative" is used.

The next denial came for the examiner making up a new reason, that no "Synovitis" was in my medical records. So I filed another CUE and used crayons to highlight the multiple accounts of synovitis in my surgical reports while I was on Active Duty/

The next denial came after the examiner then claimed that no "Pannus" was found. After I filed the 4th CUE, showing again that Pannus was not a determining factor in any universe for Rheumatoid Arthritis, Seronegative or Seropositive.  They denied again.

I filed a BVA appeal and the ALJ remanded the VARO to schedule an exam, which they failed to do for two years and then denied service connection again in 2020. The ALJ remanded a second time threatening with administrative actions of the VARO did not follow claim processing guidelines and her instruction.

I then, in 2021 received a crapload of residual ratings for all fingers, shoulders, wrists, and other joints that I had never claimed.

Meanwhile, in late 2010 I filed for Diagnostic Code for meniscal removal after a surgery to remove the medial meniscus. It was denied (imagine that) even with surgical reports and a prior rating for the knee.

The VARO and BVA attached these claims to the appeal, as separate claims.

In 2021 the VARO combined them and sent me an approval for Seronegative RA of the left knee.

I never claims that. My initial filing and every communication after was for a chronic presumptive disease, not a residual, but now the ALJ left, and they have screwed this up. Imagine that

[Dustoff1970]

Very involved and complicated that will take an expert to assist you.  You have a long row to hoe.  Good news is you are 100% with SMC-S just like me and I am very satisfied with my P&T current ratings.  I now spend most time fishing and camping in great outdoors at age 76.  Good luck going forward.

Dr. David Anaise has given me excellent results in two separate medical opinions for two separate BVA appeals.  He is a 30 year experienced MD and surgeon and veterans lawyer that has helped many many vets like me.  He can find someone if not himself to assist you and does everything by phone, email, and regular mail.

He does charge a modest fee in my case for combined both MOs but may not charge you anything for a referral.  He lives in Tucson and has a great website found by Google search.

I do not assist those few constant whining and complaining vets about the same issue over and over and over on the forum including constant ED complaints (attention seekers).  This statement does not apply to you USNDW. They are on my ignore list along with BS

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

 

Edited June 20, 2022 by Dustoff 11

[Richard1954]

On 6/18/2022 at 12:58 PM, USNDW said:

I immediately filed  NOD to the VARO with an error because they combined 2 separate claims

The va does this all the time, if you filed on line, and then looked at the progress this information is on the top left. There is nothing unusual about this. The even combine two different disabilities into one rating . I don't agree with the later but they do it.  Rater than appeal for them added combining two separate claims, you sould have considered the ratings given, review why they did it , and then consider requesting a higher rating depending on what and how they rated the two items.

I noted that your are rated 100% ,  I am curious what you based your request on for specially adaptive housing, because you must meet certain critera  before the va will award adaptive housing.  

 

Qualifying service-connected disabilities include:

The loss or loss of use of more than one limb

The loss or loss of use of a lower leg along with the residuals (lasting effects) of an organic (natural) disease or injury

Blindness in both eyes (with 20/200 visual acuity or less)

Certain severe burns

The loss, or loss of use, of one lower extremity (foot or leg) after September 11, 2001, which makes it so you can’t balance or walk without the help of braces, crutches, canes, or a wheelchair

Note: Only 120 Veterans and service members each fiscal year (FY) can qualify for a grant based on the loss of one extremity after September 11, 2001, as set by Congress. A fiscal year runs from October 1 through September 30. If you qualify for, but don’t receive, a grant in the current fiscal year because the cap has already been reached, you may be able to use this benefit in future years.

[USNDW]

I do. Have the loss of use for right leg, and wear braces and use a cane for ambulatory because of rated disabilities for both left and right leg.

I guess that my problem is, this is not complicated at all, the VA is making it complicated 

I filed a claim for Seronegative Rheumatoid Arthritis in 2009, within 10 months of medical retirement. I filed under 5002, inflammatory Arthritis and asked for a 100% rating. At that time I was rated 90% TDIU. Later my right knee was increased to 60% with SMC K. My claim was for a chronic presumptive disease.

Following a left knee meniscus removal I contacted the 800# for the VA to inquire about my SNRA claim  and during the call the agent started a claim for left knee meniscus removal 

Again, the process from filing for SNRA and through the multiple denials which were all errors I filed a BVA appeal. About 6 months later the VARO denied the left knee, and SAH and added those to the appeal

That was okay because they were 3 separate conditions wrapped up in the same appeal

But then they combined the two separate claims and awarded a 10% rating to the left knee for SNRA.  The BVA said "Granted", and in the letter stated I did not claim a chronic disease.

That is an error. I copied the SOC for the multiple denials of SNRA and the original BVA remand that kept then left knee and SNRA separate. Other than filing a request for review to have the two conditions appealed separately, which is how they started, anyone have any advice

I already spoke with 2 different VSOs but they could not grasp what I was saying. This is not complicated,  I just want to have them correct the record and process the appeal as I had claimed and appealed,  as SNRA AND a separate claim for increased rating for the left knee because of meniscus removal and instability. I don't care if they rate a residual for residual from RA, I just want the Chronic Disease worked as it has been since 2009

[Richard1954]

Ok I have read you reply. I understnd your not happy that they combined two seperate issues and then gave you only 10%. I have a simulair issue.

My left knee was rated 10% for limited Flexion with a torn meniscus VA code 5260  on 28 Sept 2016

I submitted a new claim with xray evidence of tricompartmentail arthritis, explained that I require steriod injections  every 4 months, and that by the 2.5 months the knee was still giving me a lot of trouble. I also use a prescribed oitment for arthritis.  Filed the claim in Nov 2021.  In december the claim was rated but they combined the rating with the rating for Limited Flexion and the torn meniscus and keep the rating at 10%.

I did a supplemental claim  askinf for separate rating for the arthritis  in Jan 2022, it was denied in Feb 2022

I did another Supplemental claim and indicated that the C/P exam was full of mising information and the examiner even checked that I was not wearing an AFO which by the way the left foot is rated as loss of use and a K award.  The supplemential was submitted in Apr 2022, and denied again in june 2022

I decided to try one more supplementail claim in June 2022, and cited the va rules concerning a rating for arthritis of the knee, and specifically the part about a 10% rating in the minimum for Xray evidence of arthritis and the rule further states this 10% rating cannot be combine with any other rating of the knee.

I am still waiting on the decision which I fully expect it to be denied again, and then I think I will file the next appeal to the BVA.

Arthritis of the knee is rated under 5257, I know because my right knee is rated sepaerately for 20%, and under 5260 my right knee is rated 10% for  a  torn meniscus and limited flexion, ( they did add the  osterarthritis as part of the description. But both the arthritis and torn meniscus have separate ratings. 

I even mentioned this in my appeal hey  you idiots, you just raised the award  under 5257 to 20% for arthritis of the right knee,  the claim for my left knee is exactly the same medical issue and you refuse to give me at least a 10% separate raing for arthritis of the left knee under 5257. Why?  your original denials do not indicate a valad reason to deny the claim.

So again, my point is The va combines medical conditions together all the time and give one rating.

Another example, I was rated for Diabetes II  6 Nov 2020 at 20%, on 22 Apr 2022 , I claimed ED secondary to Diabetes II. They combined the ED with the Diabetes and left the rating at 20% ( Now ED is always rated at 0% and a K award is given) in  my case I was not awarded  a k award. I filed a supplementaly claim calling CUE ( clear and unmistakable error)  for not being awarded a k award, and at the same time requested the Diabetes II and ED be separate ratings.  They awarded the K award, but kept ED &  Diabetes II rating as one rating.

Another one I was rated for Astham in 1986, in 2005 I was rated for COPD separate from the Asthma which was now rated   60% ,   COPD was rated 30%, ( makes not sense since they are both rated with Pulmonary fuction test).  They combined the two conditions under Asthma and left it at 60% for both. Then in 2007, I was rated for COPD  again and awarded 100% due to the requirement for oxygen and now the award states COPD with Asthma 100%, ( they reversed the award because the COPD was not the predominate medically issue initially, they really had no choice since asthma does not have an award for oxygen use).  Now on 31 jan 2017 I was awarded 50% for sleep apnea, and they then combined the sleep apnea with the rating for COPD and Asthma.   So I have one rating for all three at 100% but seperately they are rated  100% -COPD, 60% Asthma, and 50% Sleep Apna, you don't think this makes me mad?  You bet it does, So I have three medical issues rated at 100% and the next guy only has COPD rated 100%,  rating all three conditions under one rating is not fair for me, especially when Sleep apnea is not a pulmonary issue its a sleep disorder, and any one you ask in the medical field will tell you this.

So again, I provide three examples that actually happened to me.. The va has a long history of combining medical conditions under one rating, and there isn't a damn thing we can do except appeal and hope they listen, in most cases they won't.

And even if you claimed a cronic disease the ratings are based on the symptoms and/or the requirement to treat them, so that is not a valid arguement to appeal under either.  My asthma was listed as Chronic, but when rating it is is just Asthma, again the chronic only refers to the level of disability which is determined by the symptoms and the treatiment.

 

Edited June 26, 2022 by Richard1954