Has this happened before, VA denies claim with a service connected C&P

[tazntaylr]

Good day all,

Been fighting some claims since 2018. Filed as secondaries to PTSD. I currently have my 3rd in person C&P thursday with QTC, 4th was ACE review. This is due to a HLR duty to assist error. My denial notice (denied in one week) from Oct 2022 indicated one claim was split and ongoing, other 2 were denied.

Denial was based on a VA Medical Center medical opinion that was more "persuasive" than Dr. Todd Finnerty's IMO. VA medical center search, blue button, VA reginal office, and FOIA didn't turn up this phantom VAMC medical opinion (not listed in evidence). So filed HLR, and have new C&P exam (QTC) Thursday. 

Two days ago, I was filing away my C&P exams into appropriate claim folders. My question for everyone is this, my second C&P exam (QTC, 1st was QTC also) I discovered that the QTC C&P examiner direct service-connected my 3 disabilities. I had filed them as secondary to PTSD, but the C&P Doctor direct service connected all 3. The date the Dr. signed was month 24, 2021, and the claim denial notice was dated month 25, 2021. Favorable finding stated that the C&P examiner diagnosed my 3 disabilities.

No mention that the 3 disabilities were service connected. A HLR and 2 other supplemental claims had them listed as evidence, but were still denied.

[broncovet]

Ok, well your "QTC C and P examiner (does not) direct service connect your 3 disabilities".  

Instead, the VARO rating specialist, in a decision letter renders a decision whether or not your conditions are service connected. 

That difference my seem insignificant, but its important. 

As always, to get SC, you need the 3 caluza elements, "2 of which" can be provided by doctors. 

1.  Current diagnosis of claimed condition. (diagnosis, made by a doctor).  

2.   In service event.  This is to be found in your medical records, as a doctor can not "make" an in service event..its either there in your records or not.  If it is missing, however, there may be things you can do, such as ask a military buddy who served with you to write a buddy letter when/if he was a witness to your in service event.  

3.  Nexus, or doctors opinion that your current diagnosis is at least as likely as not due to one or more events in service.  

     If you have these listed above, you should be awarded service connection.  

The VA has a right to dispute one or more doctors (favorable) opinions.  That is, the VA can suggest "doctor A"'s exam was more thorough or more probative, such as if Dr. A took medical tests or did a more thorough exam.  (than your doctor's favorable medical exam).  But the VA has to give a reason as to why they selected one doc medical opinion over another, and, you can appeal that.  

     My advice:  Get a copy of your medical records, especially anything to do with the Caluza's (above).  

File an appeal.  Remember, HLR's are for "NO" new evidence only, so use those with caution if you have, or may have new evidence, such as your doctors exam that may not have been included in the evidence section of the decision.  

     You can ask for help here on hadit on how to word your appeal. 

[Dustoff1970]

If I understand this correctly you have TWO favorable medical opinions from 1. a private doctor and 2. A C&P examiner you should have by now still have copies of their written opinions that you submitted earlier with your claim.

You have 1 year from a final denial decision from VARO to appeal to the BVA and frankly I think you should do so ASAP.  Even with strong favorable medical evidence I have learned the sorry VARO DROs will still still deny your HLR and also a Supplemental claim with new evidence.  However, twice in recent years the BVA approved my two claim appeals on the same evidence.

Unlike the VARO the BVA is more your friend and have true professional staff assisting the judges.

In my two granted/approved appeals by the BVA they cited both the rater and VA C&P examiners negative opinions as deficient and without substance.

Like Broncovet said a C&P examiner cannot give you a rating on your disability but a favorable opinion/DBQ from that examiner along with the IMO and other evidence can be very powerful in your winning your appeal.

You may need an accredited experience VSO to sort this out for you.  They (DAV, VFW, American Legion, AMVETS) are located at VARO regional offices and their services are free.

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

Edited July 9, 2023 by Dustoff1970

[broncovet]

Dustoff is correct.  While  C and P doctors dont make rating decisions, the opinions and evidence of the doctors is critical to the outcome of your claim.  Evidence wins claims, BS does not.  

If you have favorable evidence, such as a doctor statement that your condition is at least as likely as not related to one or more events in service, you should be able to eventually win your claim, "provided that" you have the requisite discharge, and also the other 2 Caluza elements (which are a current diagnosis and an in service event).  

Sometimes, however, what "we" think is favorable evidence the VA powers that be dont think its "favorable enough".  

For example, you may need a reason and bases from the doctor as to "why" he made a nexus statement.  In this example, a doctor could site a medical study that showed troops carrying excessive weight on their backpack could cause back, knee or foot problems.