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Favorable finding identified in this decision

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dwbell99

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If "Private examination for Dr. XXX (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability)" is in the Favorable finding identified in this decision section of a Rating Decision, how does it compare to if it was in the DECISION section of the Rating Decision?

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  • HadIt.com Elder

If it is in the report, you should be fine. I just would word your statement in support of the claim  to call their attention to it.IMO

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Here is what I am thinking:

REF: 38 CFR § 3.104(c) - Favorable findings 

The DECISION section of the Rating Decision dated 11/21/2018 states that  Service connection for degenerative disc disease, lumbar spine (claimed as back) is denied based on the Medical (Thoracolumbar Spine) Condition DBQ dated July 19, 2016 by Dr. xxx

The Favorable Findings of the Rating Decision 11/21/2018 states "Private examination for Dr. Sean Burgest (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability)" based on the Corrected Supplemental claim for Medical (Thoracolumbar Spine) Condition DBQ dated October 18, 2017 by Dr. xxx.

 

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  • HadIt.com Elder

I would request a HLR and tell the DRO that it is right there in the dbq: The doc's opinion ; why he made the opinion i.e abnormal gate. The rater mis-read the opinion, even though it was favorable, and said denied. (I just don't like the word "less". I would, again, try to get an addendum letter from your doc to remove "less"; then it make perfectly good sense. )If I was the DRO, I also might say the same thing; if that is what he ment, then get it corrected. If you had the letter, you could then whip it out and say that you have it, but can't submit new evidence under HLR. Of course, you could just go the Supplemental lane with new evidence, but HLR could possibly be quicker (and save the VA some back pay.)  If he denies at HLR, you can submit into Supplemental. Remember, it is the VA rules and they have the ball. You have to follow their rules. They might! IMO

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  • Content Curator/HadIt.com Elder

The error is pretty clear, but is a bit unusual. The presence of the word "less" might be what caused the VA employee to not award SC. Honestly, the word "less" should not be in there at all if the doc opined "more likely".

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It was the rater that added the less in the favorable finding section:

Below are the originals:

My doctor wrote: 
    "It is this provider's medical opinion that veteran's chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are MORE LIKELY THAN NOT > 50% secondary service connected (due to abnormal gait caused by service connected left ankle disability)"

Rater in REASON FOR DECISION says my doctor wrote: 
    "Private examination for Dr. XXX (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely due to abnormal gait caused by service connected left ankle disability" 

Rater in Favorable finding identified in this decision  section wrote: 
    "Private examination for Dr. XXX (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability)" 

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