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VA Supplemental using MEB info?

BamaBoyGus

PEB Forum Regular Member
Registered Member
Hey Everyone,

I've been in the National Guard for 10 years. I originally submitted a claim in 2019 for lower back issues (five surgeries) which was denied by the VA in February 2020 as existing prior to service (one while in ROTC). I filed a supplemental claim with an Informal LOD stating my condition was permanently aggravated by service while on AD in 2012. That claim was denied in March 2020. I have until March 2021 to file another appeal for this condition.

Since April, I have been in the MEB process which is nearing an end. The MEB found three unfitting conditions, a. Lumbar Intervertebral Disc Disease (Referred as Lumbar Intervertebral Disc D/O); b. Sciatica, Right (Referred Condition/ VA Diagnosis)/ Right Lower Extremity Radiculopathy (Historical Diagnosis); and c. Sciatica, Left (Referred Condition/ VA Diagnosis)/ Left Lower Extremity Radiculopathy (Historical Diagnosis). All three of these conditions show on the DA 3947 and NARSUM as permanently aggravated by service.

When I started the MEB process, my MSC sent an email which stated:

Lumbar Intervertebral Disc with Sciatica

*This referred condition by the DOD has been previously denied on 03/19/2020, The only way to reopen this via the VA is to add it to the enclosed VA form 20-0995.*Previously denied conditions cannot be claimed for IDES purposes. If you have denied issues you would like to raise, please submit a VA form 20-0995 with new evidence.

I did not have any additional, new evidence after everything I had previously submitted so I moved forward and the condition was rated for DOD purposes. The MEB found the conditions EPTS but permanently aggravated by service and my case went to the PEB. The VA recently sent proposed ratings to the PEB of 40% for the back and 10% for radiculopathy for each leg. In their proposal letter, they state:

Our records indicate that you declined to submit a claim for VA benefits as part of the IDES program; therefore, the attached proposed rating decision will be used for Department of Defense purposes only. VA compensation will not be awarded as a result of your participation in IDES.

If you would like to submit a claim for VA Benefits, you can do so at the appropriate time. You can file a Pre-Discharge claim once you are within 180 days of your projected separation or retirement date. You can also file a VA claim at any time after your discharge from service.


My question is - can I open another supplemental claim before March 2021 and use the VA's own proposed ratings to the PEB as new evidence? Should I send along a copy of the MEB documents as well? I would assume the VA would have this information and if they are giving proposed rates to the PEB, can the VA deny the claim again on their side as being not service connected?

Thanks for any help!
 

SFC H

Well-Known Member
PEB Forum Veteran
Registered Member
“I originally submitted a claim in 2019 for lower back issues (five surgeries) which was denied by the VA in February 2020”

“I filed a supplemental claim with an Informal LOD stating my condition was permanently aggravated by service while on AD in 2012. That claim was denied in March 2020.”

The next step would be a higher level review. I would seek professional help on this.
 

BamaBoyGus

PEB Forum Regular Member
Registered Member
“I originally submitted a claim in 2019 for lower back issues (five surgeries) which was denied by the VA in February 2020”

“I filed a supplemental claim with an Informal LOD stating my condition was permanently aggravated by service while on AD in 2012. That claim was denied in March 2020.”

The next step would be a higher level review. I would seek professional help on this.
Thanks for the response. I called the VA as well. They said the MEB information would be new and relevant evidence which would work for a supplemental claim. It would be nice if they would just look at ratings they themselves provided to the PEB and just go back to the claim I had submitted 18 months ago and apply those ratings since it is the exact same condition. I think the professional help may be a good idea here.
 

BamaBoyGus

PEB Forum Regular Member
Registered Member
So I got another denial and now I'm going to look for the professional help. Any idea on if an accredited attorney or one of the VSOs tend to have better luck? If VSO, any suggestions? It seems like there are hundreds to choose from.

A little more information about my denials and what I have:

In the February 2020 denial, the examiner opined "it is more likely that any aggravation is due to the natural progression of the back condition and less likely due to service. VA Examiner's rationale: The veteran had a very complicated pre-service back condition that required multiple surgeries. He served for a very short time from Jan 2012 - May 2012. This is not enough time for an aggravation to occur (The short time was for BOLC).

It's true that I had one surgery (L5/S2 microdiskectomy) while in ROTC (2009). After that, I had no issues, no doctor visits, etc, for three years. I received a waiver from the Army which stated I was fully healed. I went to Fort Leonard Wood in 2012 where I reinjured my back.

After receiving my information back from the MEB, I filed another supplemental going back to my original claim. It was denied again with the same verbiage.

So far, I have the following documents (all have been sent to the VA as part of my most recent supplemental) which reference how my back was injured/aggravated:

1. Records from the Fort Leonard Wood Hospital which state my back was aggravated while there. It includes the MRI I received there as well as multiple injections. The doctor noted how my back was injured during different activities.

2. A DA Form 7652 Commander's Statment which stated the medical condition was due to an injury which required an LOD.

3. An LOD stating the injury was in the line of duty.

4. A DA Form 3947, signed by two MEB Physicians, as part of my MEB showing the condition was permanently aggravated by service.

5. My MEB NARSUM, signed by another MEB Provider and an MEB Physician, which states the condition was permanently aggravated by service.

6. Proposed ratings, from the VA to the PEB, for this condition.
 

oddpedestrian

Super Moderator
Staff Member
PEB Forum Veteran
Lifetime Supporter
Registered Member
You are wasting your time with these supplemental claims YOU HAVE to file a BVA claim at this point most likely evidence review lane or direct lane whichever you prefer. Raters always act this way with aggravated claims and now that they have the examiner opinion against you they are gonna keep running with it, raters have to really go out of their way to approve a claim with a negative examiner opinion the BVA has a lot more discretion. The MEB isnt binding on the VA but it is strong evidence to support your claim and it seems they just want to ignore it and discard it they cannot take it to the BVA if you want finality on this matter.
 

BamaBoyGus

PEB Forum Regular Member
Registered Member
You are wasting your time with these supplemental claims YOU HAVE to file a BVA claim at this point most likely evidence review lane or direct lane whichever you prefer. Raters always act this way with aggravated claims and now that they have the examiner opinion against you they are gonna keep running with it, raters have to really go out of their way to approve a claim with a negative examiner opinion the BVA has a lot more discretion. The MEB isnt binding on the VA but it is strong evidence to support your claim and it seems they just want to ignore it and discard it they cannot take it to the BVA if you want finality on this matter.

Thanks. I was hoping they would change the determination based on the other doctors and second examiner who opined in the MEB documents. I've reached out to the DAV to assist me and hopefully we can get somewhere here.
 

oddpedestrian

Super Moderator
Staff Member
PEB Forum Veteran
Lifetime Supporter
Registered Member
Does your second examination address why the first examiner was wrong or why they disagreed with them? If not they will keep referring to the first exam any subsequent exams must clearly refute why the first doctors opinion was wrong.
 

BamaBoyGus

PEB Forum Regular Member
Registered Member
Does your second examination address why the first examiner was wrong or why they disagreed with them? If not they will keep referring to the first exam any subsequent exams must clearly refute why the first doctors opinion was wrong.
It doesn't from what I can tell, unfortunately. There was nothing in any report stating why the original examiner was incorrect as the MEB process did not address the prior decision. Instead, the doctors through the MEB process came up with their own determinations which all stated it was permanently aggravated by service.
 
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