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

[Phury & Rhage]

Hey there,

You are right, they probably won't give you a copy of the exam until the claim is closed, but you can still SEE it.  If you can get an appointment (or walk in) to the Regional Office - Public Contact Team, you can ask them to give you a copy.  Some folks are going to say no to you, but they shouldn't have a problem if you say something like, "I don't need a copy of my claim folder, but I'm really trying to understand the reasoning for my last evaluation.  Can I just get a copy of that exam?"  It's worth a try.  If that doesn't work, you can always ask/find a VSO with access to VBMS and have them download a copy.  I don't use a VSO, but I appointed one at the office I worked at (a few years ago) so that I could go down to their office and say, "can you give me a copy of......"  It totally worked for me   I'm not allowed to look at my own stuff either (or anyone whose claim I'm not working), but I know (roughly) what's in there and what to ask for.

I hope it works!

Phury

[USNDW]

Thanks, I might give that a shot, but they may have me labeled as "hostile Veteran" because after my last letter describing the merger of two separate conditions I called them and told them their claims processing is garbage.

I did actually call last week after I got a LHI letter asking for a third C&P on the left knee, and the rep I spoke with took the time to look at the claim, actually repeated what I explained and read me the message he was sending the RO. Kind of shocking but it appears that at least 1 person at the entire VA understood how bad they jacked this claim up

Waiting for a second hearing date so I will likely have time to stop in and ask

Thanks

[broncovet]

If Im "getting all this" USNDW is seeking additional claims (to be rated seperately), after he is already 100 percent plus SMC S.  

Im a big believer in "case or controversy"..in other words if it does not affect your compensation check, (including survivors benefits for your family), then it may be moot, and forget it and go fishing instead.   This said, I have also applied for additional benefits, and fought appeals when it was about the effective date.  

I am willing to step into the ring with VA..but not as a volunteer with no pay.  The VA people can fight each other, if they run out of Veterans to fight with.  Or, they can just fight with their spouse, like normal people.  (Ok please laff).   

Im guessing this is about the effective date, and an eed is worth fighting for!  But maybe not, if you are 100 percent plus smc S.  Are you seeking loss of use of these arthritic limbs?  Of course, that can result in additional SMC.  

Its not surprising that many/most VSO's dont get it.  Im not even sure I get it.  I do know that, generally, I provide training to VSO's as I know much more than 90 percent of those I speak with.  Since I dont want to train VSOs, they can just volunteer on hadit, answering Veterans questions, for 15 years like I have if the VSO's want to catch up to me.   Exception:  NATIONAL VSO's.  The ones I spoke with know their stuff inside and out, forward and backward.  Thus, call your national VSO, not your local yokel VSO who worked at Walmart 2 months ago.  

After I get a decision, I carefully read the reasons and bases.  Why?  If I intend to appeal, I want to refute their reasons, preferably with regulations, case law, or doctors opinion.  The VA could care less what "my opinion" is on any of these things, so I try not voice my opinion, EVER, in my appeals.  Instead, I will cite a doc opinion, case law, regulation, or fast letter which conflicts with the reasons and bases.  

An example of this is my first claim was denied, "because it was too long since military service".  Regulation for that reason?  None.  Case law?  None.  The rating specialist made that one up.  It is not a criteria for rating that you have exited the service within a specified period of time.  The VA has to rate you ON the criteria, not on "time since service", or whether you like purple hair.  The criteria and only the criteria, are legit reasons for denial.  When the BVA decision awards/denies, they often state the criteria has (or has not) been met.  Meet the criteria, get the rating.  Fail to meet the criteria, get denied.  

This means to "dig deep" into the effective date criteria, if thats what you are after, and read those regs many times.  I have, because I appealed effective dates.  If you seek advice on eed, I may be able to help.  Yes, if your newly claimed condition started BEFORE your current rating, go for it.  But, if it did not, you wont get any more compensation, absent a possible bump in SMC.  

Edited July 11, 2022 by broncovet

[USNDW]

Hey Bronco, yes. There is additional benefits i am seeking. 

SAH and Aid & Attendance.

My wife has been my VA Caregiver since 2011 and clinical assessment has verified I need help with 5 areas of ADL and need supervision for safety, medical care, and cues.

Back then, when I filed the VA told me I had to have 1 100% rating. With active SNRA that has never been in remission and impacts basically every joint causing fatigue and is invapacitating. They did finally rate residuals last year, both shoulders, multiple fingers, wrists, and knees after imaging reports were finally obtained.

At the time I was not rated 100% but TDIU, and they denied the Seronegative RA claim even though the evidence supported my claim. They got a VA examiner to, in the only way to describe it, lie. He was dishonest about elements of a diagnosis, the medical records i supplied, and findings. I know he was not as ignorant as his report was, so yeah, I got mad.

Since then they never followed the VCAA or case law that I sent them regarding the evidence, equipose, benefit of doubt nor did they follow BVA remand orders 2x! 

VARO originally agreed my Rheumatologist and PCM diagnosed and treated SNRA but erred horribly on my dates of service, eventually leading to 3 more denials. The BVA Judge ordered specific actions, they ignored her. She then reordered actions, they ignored her again. In Feb I was notified she left the BVA, new judge. Another denial 1 month later which combined an increase for left knee following a meniscal removal and SNRA.

Over 13 years there are 6 different SOC that describe the two conditions as separate, as is the SAH. Also denial of A&A. A new SOC was supposedly issued but I never received. The BVA accepted the SOC, so I filed a request for review from the BVA with a hearing, which has been granted, and a CUE with the VA, using all of the history of the two separate issues.

The VA cannot combine a knee issue with a chronic disease issue. They could rate a residual, but cannot rate SNRA of the left knee, that is impossible. It would be the same as rating an eye for diabetes. An eye cannot have diabetes, it has to be rated as a residual and if a residual is rated then the disease would have to have been accepted.

My biggest issue is the failings of multiple ROs and I want to have an impact that will help other Veterans in the future. This is not complicated stuff here. If a chronic disease is found compensable by 10% within 2 year of separation, presumptive. If there is a continuity of symptoms, service connection should be granted. My situation is bad, and the evidence supports my request for a 100% rating for a chronic disease.

Maybe one day this claim will be used to set precident for future claims