Chronic Pain?

[sepefrio]

Sorry to keep asking questions my first day here, but I'm learning a lot. I read another post about a vet who claimed chronic pain secondary to an already assigned 10% for a knee condition. I'm currently rated 30% for my right knee. But I also have daily and often bad knee pain. I've had 2 surgeries over the last 10 years to "clean up" the knee. I'm on pain meds daily and get knee injections every 6-8 months. I'm fighting as hard as I can to delay/not have a knee replacement.

The question, since I'm already rated 30% for the right knee, can I also claim Chronic Pain as a separate rating for the right knee? I'm 20% for the right shoulder with similar problems 3 surgeries but less pain and not taking anything for it. Can I claim chronic pain for that too? Is that two chronic pain claims/rating or one? 

Man this can be confusing sometimes! Thank for the help.

[broncovet]

While I can not predict what a rating specialist will decide, my advice is to "go for it".  If you feel entitled to additional benefits, you probably are.  No one knows your claim better than you.  In other words apply.  

If, however, "pain" was already included in your original condition, then the VA does not permit paying a Veteran for the same symptoms twice.  

[pacmanx1]

6 minutes ago, broncovet said:

If, however, "pain" was already included in your original condition, then the VA does not permit paying a Veteran for the same symptoms twice.  

If pain was already included in your current rating, then you can always file a claim for depression secondary to your service-connected knee or shoulder disabilities. You may want to request to see a mental health professional about depression.  

[Dustoff1970]

The above two replies are very correct.  Many years ago both the U.S. CAVC veterans appeals court and the Federal D.C. Court of Appeals stated in there decisions that a veteran's pain symptoms were valid individual vet's personal described symptoms that has to be considered as a symptom evidence by the VAROs and BVA in their decisions.

In addition to separate claim you can also file IMHO for increase in your service connected disability/s based upon increased pain symptoms.

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

[sepefrio]

11 hours ago, Dustoff1970 said:

The above two replies are very correct.  Many years ago both the U.S. CAVC veterans appeals court and the Federal D.C. Court of Appeals stated in there decisions that a veteran's pain symptoms were valid individual vet's personal described symptoms that has to be considered as a symptom evidence by the VAROs and BVA in their decisions.

In addition to separate claim you can also file IMHO for increase in your service connected disability/s based upon increased pain symptoms.

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

Wait, I need to know more about these legal decisions. I filed my initial claim for back pain back in 2010. In 2012 it was denied and the reason for denial was, "chronic back pain is a symptom and not a condition or disability. " There was no appeal.

I filed for back pain again in 2022, it was denied again. This time I appealed, and in March of 2023 I was given a "Duty to assist Error". This is the comment in the decision letter.

The issue of service connection for lumbosacral strain with degenerative arthritis was returned for correction of a duty to assist error in the prior decision, as we failed to request an examination with medical opinion as to whether your current diagnosis of lumbosacral strain with degenerative arthritis is related to the multiple complaints of back pain with which you presented during your military service.

Favorable findings identified in this decision: The evidence shows that a qualifying event, injury or disease had its onset during your service. Your complaints of back pain were noted on the following dates: April 1994, February 2001; October 2003, of one year's duration; February 2005, following a motor vehicle accident; August 19, 2005 and March 13, 2007, on Report(s) of Medical History. 

You have been diagnosed with a disability. A diagnosis of lumbosacral strain with degenerative arthritis was confirmed on a Disability Benefits Questionnaire completed by Brant Thomas, MD, your primary care physician.

My question, are they talking about the 2012 decision or just the 2023 decision? The legal decisions you are talking about, can I walk this back and get back pay back to 2010? Note, I just completed a C&P exam related to the appeal a few days ago and I'm awaiting results.

 

Thanks

[broncovet]

Probably, but expect VA to fight you, pretty much as they always do, for every nickel.  If you are still in the appeal period (probably, if the decision has been less than a year), then I recommend appealing to the BVA (board of Veterans appeals).  You may "get lucky with" a faster HLR, but I would skip the HLR and go directly to the BVA.  

While hadit has had mixed results with HLR, "my opinion" (unsubstantiated) is that a 13 year potential retro is, 5 or six figures, and VA does not hand out 100,000 checks like they are candy at a parade.  Again, my opinion only is that many/most VA rating specialists either dont have the authority to authorize 100,000 checks, or, if they did one, the boss would call them in tehe carpet and ask "why".  Its just simpler to deny and let a judge at the BVA decide it, and safer for the employee.   You see, an employee wont be blamed for denying a claim that is later overturned by the BVA, but, in the reverse, if an employee authorizes a 100,000 check, and other supervisors look at it and think differently, then that employee "will be on the hotseat".  

     In other words no penalties for "over denying", but big penalties for "giving away money".  

     Its likely "the details" of your case will determine the outcome...details that are not available to me, and may not even be immediately available to you, "unless" you have your full records up to date.  

     Wild card:  New evidence.  The question is, "when" did VA have evidence supporting Service connection? 2010?  2023?   I dont know.  I dont know if they had the evidence and ignored it, or did not consider it probative, OR, did not have the evidence at all, until 2023.  Reason:  38 CFR 3.156 (new evidence) deals with evidence the VA did not have then later found it, in regard to effective dates.  Its complex, and I wont discuss it now, unless you ask, in regard to your circumstances.  

     However, if VA HAD evidence to service connect, back in 2010, but failed to do so, that sounds like CUE to me.  It would take a careful review of your records to know this, and I have not reviewed your records.  

     Short cut:  Considering you have 13 years potential retro, its time to start thinking about professional representation, that is, a lawyer who specializes in Veterans benefits.  Depending on "what stage" you appeal, it could cost you 20 percent of the retro.   However, do the math: Multiply 80 percent times 100k, and then multiply 100 percent of zero dollars.  See which is more.  I think I know the answer.  Very often, as in "almost always", to get the big retro takes an attorney. 

    If you do consider an attorney, my advice is to choose one from THIS list:

    https://www.vetadvocates.org/cpages/sustaining-members-directory

You can click "your state", but, you dont need to limit your choices to your state if you so desire.  VA benefits is national, an attorney is either accredited or not.  Its not like other law, where your attorney may be licensed to practice in Colorado, but not in Georgia.  Instead, Vets advocates can represent Veterans in any state, and you can do stuff by mail, phone, email, fax etc.  Most attorneys will gladly review your case at no charge, and give you their opinion on whether or not to proceed.  Almost all of those will want to see a copy of the decision.  They wont want to accept "your interpretation" of what the decision says, because then your legal representation is no better than your interpretation.  

       Just to inform you, the attorneys on this list are often very busy, sometimes representing dozens or more of Vets at any given time.  Not all will have the time, nor the expertise to represent you on YOUR type of claim.  So, dont be dismayed at "attorney 1" saying NO.  

      I checked with 4 different law firms.   3 said, "no dice..your claim wont work".  1 said "yes, I can handle that".  And I won.  Sometimes attorneys turn cases down for their reasons, not yours.  Maybe they have a kid in the hosptial and need to spend time with him, and already are overburdened with work.  In other words, an attorney decling to represent you, does not necessarily mean your claim does not have merit.  

[Rattler]

broncovet  Has given you good advice. I am someone who has won 6 figures in 3 week through a HLR via CUE claim. I request my C-File just before they awarded the CUE claim. I can tell you for that type of money it takes 3 signatures of different level VA employees to sign off on that much money.