elcamino_77us

Second Class Petty Officers
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About elcamino_77us

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    E-5 Petty Officer 2nd Class
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  • Service Connected Disability
    60%
  • Branch of Service
    Marines

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  1. Good Evening Andyman73, Sorry about waiting so long getting to you. I was going back through my emails tonight looking for part of my hire package when I ran across the notice for this message. I just moved to Camp Lejeune for a new position. Yes, your 100% correct. Allison Hickey would be a Great Person to contact. Although, after reading an article by Benjamin Krause late last week or earlier this week, I think she got Relieved of Duty as a way for rewarding Her for trying to help us Veterans. I'm thinking of emailing either Benjamin Krause or Secretary McDonald or Both and giving them some of my files which includes the BVA misquoting Doctors statements to deny claims along with my C&P Exams. Thanks!!!
  2. Good Evening, After putting the two of these together (Tinnitus and Low Back) and requesting a Reconsideration on my CUE Decision of 7 April 2015 as directed per my conversation with the supervisor who called me, I recieved an answer in True VARO Atlanta Style. The letters (yes, they sent two,duh) stating that I could not file a free standing claim as my decision was too old. Instead, the letters stated that I needed to file a CUE. The level of Incompetency coming out of the VARO Atlanta has been mind-boggling to say the least. Just when you think they can't get any lower, they slither to even lower standards. Bill
  3. Was this for a BVA or maybe a DRO? Can I use this technique to set down with my RO and maybe fix the problems with my claims? At my RO, the Left hand doesn't know what the right hand is doing! This is obvious by the two letters I got today. Thanks, Billy
  4. Good Afternoon, Well, I had a C&P exam today in Dublin. I couldn't sleep very well last night thinking about it and as I figured, someone needs to give them a few classes. I was called around Wednsday this past week and told of a C&P Exam for my lower back for today. No valided explanation of why when I asked, just told it could be several reasons. The person performing the exam was a Nurse Practitioner. After asking me several questions regarding my condition including have it afficts my everyday life. When I tried to answer that question twice stating that I couldn't bend, I was rudely interrupted both times and basicly told she would be determining that. When she pulled out the Goniometer, I stated that was the first time I had seen one of those. Her reply was after ten years of experiance you didn't need one, cause you know what the degrees are. When I didn't say anything she proded me again with the same statement. As I stated, I was there for a lower back exam, and yes, I have arthritis through out my spine. I also have radiculopathy down both sides since before I left the Corps. She started by checking my strength and taking ROM mesurements of my ankles as well as big toes, doing reps of three. Next was leg lifts, she was asking me where it hurt, my back was screeming bloody muder at that point. (Note, I checked the new updated DBQ's and this is how they tell if my radiculopathy effects me below the knees. Truthfuly, there's no way to tell as my back was screaming.) Next she checked to see if I had numbness. I had already explained to her earlier that I had partial numbness in my right foot and both thighs and that the numbness in my thights would turn into a burning sensation at times especially at night while I'm trying to sleep. Her directions were to tell her if I felt her poke me with the piano wire. Nothing about decreased sensation. She then precided to poke me multipal places without giving me a chance to respond. She started telling me how she knew I was faking it. Then we went to actually checking the ROM of my Back. She had me bend over then straighten up. I couldn't bend over that far and I have a had time straightening up due to the athritis which I tried to explained to her, yet she was upset and had me set back down on the examination table and stand back up to try and prove that I could bend at my spine. (Note: setting in a chair with your back straight is completly different than standing up and bending down. My back stays straight when I set down or stand up. When I bend over, thats when my spine starts bending.) Again, I try to tell her I have a hard time straighen my back. It's not that I can't it just takes me time to do so. So at this point she starts having me do the side - to - side ROMs and when I can bearly do them she starts on me again saying you just turn sideways and yet you can't move side to side. I explaind that yes while I maybe able to turn sideways (rotation) I don't have much side to side (flection) cause it hurts. Her atitude was very clear at that point. She made it quite clear as she stated that she wasn't there to measure pain but to measure my whole Range of Motion. She even went as far to tell me that she had watched me bend over and take off my shoes while seated. I then corrected her and stated that I took my shoes off when she left the room to get undressed and that I kicked them off as I'm not able to bend down to take them off or put them on, that's why I brought a long handled shoe horn. She kept making comments about having to get my full range of motion and I was only hurting myself. I then asked her if she ever heard of DeLuca. Again her attitude was she wasn't there to measure my pain but my Full Range of Motion. That I was only hurting myself and I don't want to have to do another C&P Exam. It is also noted that about two months ago I had a Left Knee C&P Exam at this same VAMC and the Nurse Practitioner then Forced all of my ROM's, the last one she kept pushing on untill she got the reading she wanted. Even though she fored my knees to get her ROM, it didn't matter as although I do have a lmited ROM for my knees, it's non compensatable except that I have arthritis in both knees which gives me 10%. She did find that I do have subluction in my left knee. Now to only get them to rate them correctlly as I've had partial meniscectomies of both knees. Over the past several years since I was discharged, I've had one C&P in Augusta, it was ruled as inadequate for rating, two at Atlanta by the same doctor inwhich both of them were also ruled as inadequate for rating. And I've had four in Dublin, The first one will be ruled ruled as inadequate for rating when I go to my BVA as there were numouriou problems Failure to take ito consideration DeLuca, Failure to explain why I didn't have a Left Knee disability or Bilateral Radiculopathy which have since been proven to be service connected. Along with Forced ROM. My second C&P Exam was the only one that I felt was ever fair. These last two really are something else. Even though the one about two months was incorrectly performed, it did confirm my statements of subluxation for my left knee. BTW, I'm being slated for a total Left Knee Replacement. However this was a complete disaster today. My thinking on the way home was to wait and see what she wrote. However, as I type and read over this, it may be best to go ahead and complain about the Exam. Any Thoughts on how to handle this or who to see??? Thanks Billy
  5. After reading some of the post here and going back through my rebuttle, I've made a few changes to this. Berta, you wrote that a BVA CUE has to be addressed at the BVA and I'm sure your 100% correct on that. Since the can of worms has already been opened, I'm wondering if I go ahead and submit it along side of my Tinnitus, the VARO might tell me what's wrong with it. Kind of a runup to the BVA. Berta, I also would like to give you a Big "Thank You" for all of your help in here. I know there are others in here that also have helped me and I'm humbled by your help. BENEFITS SOUGHT: RECONSIDERATION OF APR 7, 2015 VARO DECISION A disability rating of 10 percent for a low back disability granted for the period from November 13, 1995 to June 6, 2002, subject to the law and regulations governing the payment of VA monetary benefits. A disability rating of 20 percent for a low back disability granted as of June 7, 2002, subject to the law and regulations governing the payment of VA monetary benefits. PURPOSE OF CORRESPONDENCE: Submission of material regarding Benefits Sought for said Back Service Connection. On 7 April 2015, the Atlanta VARO made a determination of my case concerning my Back as follows: Entitlement to an earlier effective date of service connection for lumbosacral strain is not shown due to a clear and unmistakable error. A 0 percent is still warranted from November 13, 1995 through June 23, 2002. A 10 percent is still warranted from June 24, 2002 through April2, 2006. The 20 percent evaluation is still warranted and continued from April3, 2006. I disagree with those findings for the following reasons: The results of my 2005 BVA included that my claim be remanded due to failure to consider DeLuca in my previous C&P Exams of 1996, 2003, & 2004. My Back was a part of that decision. My 2008 BVA was a collection of twisted facts and improper use of the previously ruled C&P Exams of 1996, 2003, & 2004 that were found to be Inadequate for Rating Purposes. Had the facts been properly presented and all of my IMO’s properly used and weighted; the outcome would have been entirely different as I would have been Service Connected for a Compensable Disability Rating for a Low Back Disability with an effective date of 13 November 1995. On 30 Nov 2005, the Board of Veteran Appeals remanded my case concerning my left knee and Back due to failure of the previous 1996, 2003, & 2004 C&P Exams failing to take into consideration DeLuca. Regarding orthopedic disabilities, the United States Court of Appeals for Veterans Claims (Court) has held that criteria which provide a rating based on limitation of motion require consideration of 38 C.F.R. §§ 4.40 and 4.45 (regulations pertaining to functional loss of the joints due to pain, etc.). See DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, to the extent possible, the degree of additional disability caused by functional losses, such as pain, weakened movement, excess fatigability, or incoordination, should be noted in terms consistent with applicable rating criteria. However, such has not been accomplished in the present case. While the veteran underwent VA orthopedic examination in April 2003, the examiner did not state whether the veteran had any additional impairment or functional loss due to such factors as pain, pain on use, weakened movement, excess fatigability, or incoordination. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). That duty to assist includes providing a medical examination when such an examination becomes necessary to substantiate the claim. 38 U.S.C.A. § 5103A(d) (West 2002). Therefore, the veteran's low back disability must be evaluated in light of the both the current and prior criteria for spinal disabilities. Therefore, in light of the above, this claim is remanded for the following additional development: 1. The RO should contact the veteran and ask that he identify all sources, to include the Lawson Chiropractic Clinic, of private medical treatment not already of record for his service-connected lumbosacral strain and his claimed left knee disability. He should also be requested to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. Additionally, the RO should request that the veteran provide information as to the dates of any treatment for these disabilities at any VA Medical Center (VAMC) since March 2005. Copies of the medical records (not already in the claims folder) from all sources should be requested. All records obtained should be added to the claims folder. If requests for any private treatment records are not successful, the RO should inform the veteran of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2005). The RO should also request or tell the veteran to provide any evidence in his possession that pertains to his claim. Furthermore, the veteran should be specifically informed as to what portion of evidence he is required/expected to submit, and which portion of the evidence the VA would attempt to obtain in order to assist the veteran in substantiating his claim, per 38 U.S.C.A. §§ 5103(a), 5103A; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. The veteran should be scheduled for a VA orthopedic examination in order to determine the impairment resulting from his service-connected disability of the lumbosacral spine. The claims file should be reviewed by the examiner in conjunction with the examination. The examination should include full range of motion studies, X-rays, and any other tests considered necessary by the examiner. The examiner should provide ranges of motion for the thoracolumbar spine, reflecting forward flexion, extension, left and right lateral flexion, and left and right rotation. In testing range of motion of the veteran's thoracolumbar spine, the examiner should note if the veteran has any additional limitation of motion due to such factors as weakness, fatigability, incoordination, restricted movement, or pain on motion. The examiner should also determine the frequency and duration of any incapacitating episodes resulting from the veteran's lumbosacral spine disability. Any other disability, to include any neurological disability, resulting from the veteran's lumbosacral strain also should be noted. The medical basis for all opinions expressed should also be given. 3. The veteran should be scheduled for a VA orthopedic examination to determine whether he has a current left knee disorder, and whether such a disability is due to or the result of an injury sustained during military service. The veteran's claims folder should be sent to a VA physician for review in conjunction with the examination. A complete orthopedic examination, to include any clinical tests considered necessary by the examiner, should be conducted. After fully reviewing the record and examining the veteran, the examiner should state whether the veteran does in fact have a current disability of the left knee. If so, the examiner should also state whether it is at least as likely as not (that is, a probability of 50 percent or better) that the veteran's current left knee disorder began during military service, or is otherwise etiologically related to any in-service disease or injury. The medical basis for all opinions expressed should also be given. 4. Thereafter, the RO should again consider the veteran's pending claims in light of any additional evidence added to the record. In readjudicating the veteran's increased rating claim, the RO should take into consideration 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, and the holding in DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. VA will notify the appellant if further action is required on his part. The purpose of the examinations requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2005) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). On 02 December 1994, a Med Board was held which indicated: “Examination of the lower back reveals that he can flex and touch his fingers to his toes, extension is to 50 degrees…” On 09 August 1995, a SF600 written by J.K. Evan LCDR, MC, USNR, an Orthopedic Surgeon wrote: “Eval: Back: He has flexion down to fingers 14" above the floor. Extension to 30°. On 10 Jan 1996, Dr. Choi, an Orthopedic Surgeon notated a limited Range Of Motion in his statement: “Forward bending is good up to 70° with minor discomfort. Bilateral bending is WNL.” Dr. Choi explained on 28 Feb 1996, that I had Degenerative Arthritis of the Spine and that was what was causing my problems including the sharp pain and numbness. The Medical Records Entry for that date was somewhat vague. I was later asked by my VSO if I could get a clarification of the Medical Records Entry, which I obtained and sent to the Atlanta VARO. It was dated as an Addendum for 2/28/1996 which read: 5-14-97 Addendum to visit of 2-28-96. His diagnosis should have been changed to degenerative arthritis of the lumbosacral spine after his MRI results.UC/sw DX: 721.9 DEGENERATIVE ARTHRITIS OF THE LUMBOSACRAL SPINE Dr. Choi’s statements show that at the time of my Discharge, I had a Limited Range of Motion with a Diagnosis of Degenerative Arthritis of the Spine which rates a 10% disability. On 07 June 2002, Dr. Choi reexamined my back condition and notated that my limited Range Of Motion had continued to decrease in his statement. It is also noted that the new Range Of Motion would rate a 20% disability: “forward bending is slightly limited at about 60 with some stiffness noticed.” My General C&P Exam of 2 February 1996, was bluntly speaking, a mere sham, a piece of science fiction literature that would have made Ray Bradberry proud. From the moment I was called in for my so-called Exam and told that he had looked at my x-rays and could not find anything wrong with me to 45 minutes later, where he sent me to x-ray as he said he didn’t have any, was nothing more than a rouse. Dr. Chamber spent no more than a total of ten minutes with me. Dr. Chambers directed me into an extremely large room which was not a normal examination room and asked me to change, after which he left. When he returned, several minutes later, he began the process of determining my Range of Motion without the use of a Goniometer nor did he take DeLuca into consideration. My Military Service Records were never reviewed. All of the information which I tried to give him concerning my previous treatments while on active duty and any current complaints were completely ignored. Dr. Chambers was not trying to determine if I had a medical condition nor was he trying to determine if that condition was related to my Military Service, but rather just going through the motions to get me in and out as if I was on a check off list. After he had me dress, he came back and sent me to get x-rays, stating he didn’t have any. In his C&P Report he wrote, “for completion sake.” This statement shows the negative attitude displayed towards me and my examination by Dr. Chambers. This General C&P Exam of 1996 should be completely removed from my C-File as it provides no Medical Evidence that can or should be used to substantiate or deny any Claim and has been ruled as Inadequate for Rating by my 2005 BVA Decision for failure to take DeLuca into consideration. The Doctor who performed this C&P examination not only failed to take DeLuca into consideration, but he also failed to read my Medical Service Records, and failed to use a goniometer during my C&P Exam. The Court has further held, with respect to musculoskeletal disability, that an examination which fails to consider and address the provisions of 38 C.F.R. Part 4, §§ 4.40 and 4.45 (1995) is inadequate for rating purposes and that in such cases remand for another examination is mandatory (emphasis added). DeLuca v. Brown, 8 Vet.App. 202 (1995). A General Counsel opinion, issued in July 1995, held that, pursuant to the statutory duty under 38 U.S.C.A. § 5107(a) to assist a claimant in the development of facts pertinent to a claim, and the decisions of the Court interpreting that duty, a Department of Veterans Affairs examiner must review a claimant’s prior medical records when such review is necessary to ensure a fully informed ... examination or to provide an adequate basis for the veteran’s findings and conclusions (emphasis added). VAOPGCPREC 20-95 (O.G.C. 20-950). In that connection, the Court has held as follows: A VA examination which failed to include a review of all of the veteran’s medical records [was] in violation of the duty to assist. Culver v. Derwinski, 3 Vet.App. 292, 299 (1992). “The examiner must have the full medical record of the veteran prior to making the evaluation.” Shoemaker v. Derwinski, 3 Vet.App. 248, 255 (1992). “In order for [VA] to fulfill its duty to assist ... a thorough contemporaneous medical examination, one which takes into account the records of prior medical treatment, [is required] so that the evaluation of the claim[ed] disability will be a fully informed one.” 38 U.S.C.A. § 5107(a); Roberts v. Derwinski, 2 Vet.App. 387, 390 (1992); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Concerning my C&P Exam of 5 May 2003 conducted by Dr. Deandrade, Robin. Even though the Claims File was read, “DeLuca” however, was still ignored. Dr. Deandrade wrote: Forward bending was 70 degrees. Backward extension was 30 degrees. Right and left bending was 20 degrees. Right and left rotation was 25 degrees. Thus the patient has normal sagittal movements, but in the coronal plane there is some restriction as is in the rotational plane. The Court has further held, with respect to musculoskeletal disability, that an examination which fails to consider and address the provisions of 38 C.F.R. Part 4, §§ 4.40 and 4.45 (1995) is inadequate for rating purposes and that in such cases remand for another examination is mandatory (emphasis added). DeLuca v. Brown, 8 Vet.App. 202 (1995). The cited regulations provide, in pertinent part, that disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.... The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.... 38 C.F.R. Part 4, § 4.40 (1995). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations:...(b) More movement than normal (from flail joints, resections, nonunion of fracture, relaxation of ligaments, etc.) ...(f) Pain on movement, disturbance of locomotion, interference with ... weight bearing are related considerations (emphasis added). 38 C.F.R. Part 4, § 4.45 (1995). The Court has further held that the Board must analyze the effects of pain under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 (1995), as it affects the appropriate ratings to be assigned for orthopedic disability, whenever pain is a factor (emphasis added). See Brown (Brenda) v. Brown, 9 Vet.App. ___, U.S. Vet.App. No. 95-173 Mar. 1, 1996); Hicks v. Brown, 8 Vet.App. 417, 420-421 (1995); DeLuca v. Brown, supra. The Board notes that 38 C.F.R. § 4.59 provides, in pertinent part, that painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. ... The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. Part 4, § 4.59 (1995). Because of the 2005 BVA Decision, I was to be given a new C&P Exam, one that took into consideration DeLuca. On 4 April 2006, a new C&P Exam was conducted by Deborah Fordham, a PA-C. This time pain was notated during the actual exam. “Forward flexion is 0-50 degree, stopped secondary to sharp pains. Extension is 0-10 degrees with cervical spine pain. Left lateral flexion is 0-20 degrees. Right lateral flexion is 0-15 degrees. Left lateral rotation is 0-15 degrees with increased pain in the upper thoracic spine. Right lateral rotation is 0-15 degrees with increased pain in the upper thoracic spine.” Concerning my BVA dated 2008, this Decision was a collection of twisted facts and improper use of C&P Exams previously ruled as Inadequate for Rating Purposes. Had the facts had been properly presented; the outcome would have been entirely different as I would have been Service Connected for a Compensable Disability Rating for a Low Back Disability with an effective date of 13 November 1995. As it was, the deliberate manipulations of my medical records by the Rater, tainted my BVA Case of 2008 and denied me of my due process rights. Cushman vs Shinseki. In my BVA of 2008 the Rater improperly used statements from C&P Exams previously ruled as Inadequate for Rating Purposes for failure to take into consideration DeLuca which included: “A January 1996 VA general medical examination report shows that the veteran had forward flexion of the lumbar spine to 95 degrees, extension of over 35 degrees, lateral flexion of 40 degrees, and rotation of 35 degrees in both directions. He had no scoliosis and was nontender. He did have 4/5 Waddell signs. His reflexes were normal as was his motor and sensor examination. The assessment was mechanical back pain with no evidence of intra-articular pathology or any other neurologic problems. The examiner concluded that, given the veteran's multiple somatic complaints, this probably just represents somatization given his overall affect and the diffuse nature of his complaints. The examiner could not find any hard clinical evidence that he had any gross organic pathology.” “An April 2003 VA joints examination report showed that the veteran had no scoliosis and normal lumbar lordosis, with no paravertebral spasm in the sense that marking time resulted in tightening and relaxation of the paravertebral muscles, indicating that they were able to relax. Forward bending was 70 degrees, backward extension was 30 degrees, right and le bending was 20 degrees and right and left rotation was 25 degrees. The examiner noted that the veteran had more sagittal movements, but in the coronal plane there was some restriction as is in the rotational plane, and that this is more than one would expect for a person of his age. X-rays of the lumbar spine showed minimal degenerative changes. In fact, there were just small osteophytes in the region of the posterior joints. There were well maintained disc spaces and no osteophytes on the bodies of the vertebrae. The veteran had small osteophytes in the upper lumbar spine. The examiner reviewed the veteran’s July 2002 MRI report and concluded that for all intents and purposes the MRI was normal. The examiner concluded that the veteran had considerable subjective complaints, but no significant objective disease could be identified. An April 2003 bone scan of the low back showed uptake in the lumbar spine typical of degenerative joint disease; however, there was no localization and such findings would be expected in a person of his age. Hence, the bone scan did not confirm any active inflammation.” The Rater then began using the Inadequate VA Examinations against my IMO’s. “a January 1996 VA general medical examination report shows that the veteran had forward flexion of the lumbar spine to 95 degrees, extension of over 35 degrees, lateral flexion of 40 degrees, and rotation of 35 degrees in both directions.” “The April 2003 VA examination report shows that the veteran had forward bending of 70 degrees, backward extension of 30 degrees, right and left bending of 20 degrees and right and left rotation of 25 degrees. The Board therefore finds that, as of June 24, 2002, the symptomatology of the veteran’s low back disability warrants a 10 percent disability rating for slight limitation of motion of the lumbar spine under Diagnostic Code 5292. 38 C.F.R.§4.7la, Diagnostic Code 5292 (2003).” Conclusions based on previous C&P Exams which had been ruled by my 2005 BVA as Inadequate for Rating Purposes for failure to take into consideration DeLuca. The Courts have held “An opinion based upon an inaccurate factual premise has no probative value.” Reonal, supra. The Rater went on to support his conclusions by the following: “The medical evidence prior to June 24, 2002 reflects that the veteran had essentially full range of motion of his spine. The November 1994 Medical Board Report shows that the veteran could flex and touch his fingers to his toes, that extension was to 50 degrees and on lateral bending he could touch his fingers to bilateral lateral knee joint lines. While a January 1996 private medical record reflected that the veteran’s forward bending was good to 70 degrees with minor discomfort and his bilateral bending was within normal limits, a January 1996 VA general medical examination report shows that the veteran had forward flexion of the lumbar spine to 95 degrees, extension of over 35 degrees, lateral flexion of 40 degrees, and rotation of 35 degrees in both directions.” When breaking down his statements, you can see deliberate mistakes in his conclusions: “The medical evidence prior to June 24, 2002 reflects that the veteran had essentially full range of motion of his spine. However, this statement written on 09 August 1995 was completely ignored, a SMR SF600 written by J.K. Evan LCDR, MC, USNR, an Orthopedic Surgeon. The statement showed that I did not have full range of motion as the Rater had alluded to even before I was discharged. “Eval: Back: He has flexion down to fingers 14” above the floor. Extension to 30°. On 10 Jan 1996, Dr. Choi, a private Orthopedic Surgeon notated a limited Range Of Motion in his statement which was consistent with my 09 August 1995 SF600 and took into consideration DeLuca. “Forward bending is good up to 70° with minor discomfort.” Also deliberately left out was Dr. Choi’s Addendum dated 14 May 1997 of my 28 Feb 1996 Exam, that I had Degenerative Arthritis of the Spine: 5-14-97 Addendum to visit of 2-28-96. His diagnosis should have been changed to degenerative arthritis of the lumbosacral spine after his MRI results.UC/sw DX: 721.9 DEGENERATIVE ARTHRITIS OF THE LUMBOSACRAL SPINE The Rater then referred to my Jan 1996 C&P Exam. However, this same exam was ruled as being Inadequate for Rating by my 2005 BVA for failure to take DeLuca into consideration. The Doctor who performed this C&P examination not only failed to take DeLuca into consideration, but he also failed to read my Medical Service Records, and failed to use a goniometer during my C&P Exam. It was also obvious to me at the time of the exam that the doctor could not keep his facts straight between the different C&P Exams he was conducting at the same time, as he was going from room to room and Veteran to Veteran without finishing one before starting the next. His statement at the beginning before he had even begun his examination that he had looked at my x-rays and couldn’t find anything wrong to at the end when he sent me to x-ray as he didn’t have any, was a sure indication of his confusion. “a January 1996 VA general medical examination report shows that the veteran had forward flexion of the lumbar spine to 95 degrees, extension of over 35 degrees, lateral flexion of 40 degrees, and rotation of 35 degrees in both directions.” On 07 June 2002, Dr. Choi notated that my limited Range Of Motion had continued to decrease in his statement: “forward bending is slightly limited at about 60 with some stiffness noticed.” As we can see, the Rater’s statement that I had full range of motion, 0-90 degrees prior to June 24, 2002 is clearly both incorrect and misleading. My exam on 07 June 2002 should have been rated at 20% for Loss of ROM. Had the Rater not been busy ignoring Medical Exams, twisting the facts and improperly using C&P Exams previously ruled as Inadequate for Rating Purposes to deny or downgrade my claim, but instead had taken into consideration my Service Medical Records and Private Treatment Records which showed both a Limited Range of Motion and that I had Degenerative Arthritis of the Spine which started before my Discharge of 12Nov1995, I would have been Service Connected at a compensable disability rating of 10 percent for a low back disability granted from the period of November 13, 1996 to June 6, 2002. “Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. “ 38 CFR 4.6 The BVA has held: "The veteran's assertion of CUE is based on VA's failure to consider highly relevant medical evidence, that is, the RO denied the existence of medical evidence that was clearly of record at the time of the rating decision. The Board is convinced that the RO committed error based on the record and the law that existed at the time the decision was made and had the error not been made, the outcome would have been manifestly different. Grover, supra. This error is significantly more than a disagreement as to how the facts were weighed or evaluated. Crippen, supra. Rather, it was a denial of the existence of facts of record. Moreover, a persuasive reason has been given as to why the error manifestly changed the outcome. This reason is that had the error not been made, a compensable rating for irritable bowel syndrome would have made effective the day following separation from active military service, rather than the day that a VA outpatient treatment report noted irritable bowel syndrome. This review for CUE is based solely on the evidence of record at the time of the February 2000 rating decision. Russell, supra. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service treatment records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Med Board held on 02 December 1994, showed that I could “flex and touch his fingers to his toes, extension is to 50 degrees…” However, by 09 August 1995, my doctor notated “flexion down to fingers 14" above the floor. Extension to 30°.” Although my Doctor did not notate the actual Range of Motion, this shows a significant loss of motion that occurred before I was Discharged from the Marines. Three Months later on 28 Feb 1996, Dr. Choi stated, “Forward bending is good up to 70° with minor discomfort.” Again on 07 June 2002, Dr. Choi stated, “forward bending is slightly limited at about 60 with some stiffness noticed.” These records show a Limited Range of Motion starting before I was Discharged that has continued to this day. In Summary, the VA’s failures to properly evaluate, diagnose, and rate medical conditions concerning my Low Back Disability along with its deliberate ignoring of my private medical records specifically my diagnoses of Degenerative Arthritis of the Spine and SF600 of 9 Aug 1995, twisting of the facts, and improper use of C&P Exams previously ruled as Inadequate for Rating Purposes for failure to consider DeLuca, not only tainted my BVA Case of 2008 and denied me of my due process rights. Cushman vs Shinseki, but also constituted a Clear and Unmistakable Error. Therefore, the only records available for use to determine my Range of Motion are my SMR’s and IMO’s. On 17 July 2008 the BVA determined the following concerning the condition of my back: A compensable disability rating for a low back disability is denied for the period from November 13, 1995 to June 23, 2002. A disability rating of 10 percent for a low back disability is granted for the period from June 24, 2002 to April 2, 2006, subject to the law and regulations governing the payment of VA monetary benefits. A disability rating of 20 percent for a low back disability is granted as of April3, 2006, subject to the law and regulations governing the payment of VA monetary benefits. My BVA of 2008 should have found: A disability rating of 10 percent for a low back disability is granted for the period from November 13, 1996 to June 6, 2002, subject to the law and regulations governing the payment of VA monetary benefits. A disability rating of 20 percent for a low back disability is granted as of June 7, 2002, subject to the law and regulations governing the payment of VA monetary benefits.
  6. Sorry for the delay, I had to have a heart catheterization. Everything looked good!!! I tried to do a reconsideration. however not only did the BVA blow me off, but the American Legion Rep did as well. I called and talked with him after I submitted the paperwork. He was upset that I would even suggest that there was a problem or CUE with the decision as he did the original BVA claim. He argued about the use of previous ruled Inadequate for Rating C&P Exams. He stated that he would read my statements concerning that decision before turning it in. However, when I called him back around two weeks later, he hadn't read it and stated he was just going to go ahead and turn it in. Note: I found several major problems with that BVA Decision. Right now I'm at the VARO with it. Didn't know about the VARO and BVA CUEs. I had wondered if the VARO could overturn a BVA CUE. I will take a good look at what you posted once I get home. Thanks for your help. Bill
  7. broncovet, Thanks for your reply and your thoughts. I feel if I can make my point here, then I should be able to do so against the VA. Your correct, however I had applied for benefits. I Filed a Formal Claim which included Hearing Loss and the doctors report was my Initial Audio C&P Exam which was held roughly two and a half months after being discharged. The sole purpose of a C&P Exam is to determine if you have any disabilities and if those disabilities are Service Connected. It is not meant to be a Treatment Appointment. Also the way I read Brokowski and the CAVA along with training material related to that decision is that as long as a Formal Claim is Filed, it meets the requirements. The CAVC has stated that an informal claim for VA benefits requires: 1. An intent to apply for benefits, 2. An identification of the benefits sought, and 3. A communication in writing. - Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009); - See also 38 C.F.R. § 3.155(a) (stating that an informal claim must “identify the benefit sought”). - CAVC, quoting its decision in Brokowski, went on to state that “[A] claimant's identification of the benefit sought does not require any technical precision.” - CAVC stated that a claimant sufficiently identifies the benefit sought “by referring to a body part or system that is disabled or by describing symptoms of the disability.” All three requirements are met when you file your Formal Claim. I also met requirement # 2 a second time when I referred to the body part and system that was disabled and described the systems of the disability in my C&P Exam. This is my situation. Bill
  8. Berta, Dr. Choi's IMO of my condition, mainly his addendum was never used by the VA. Dr. Choi also explained on that same date of 28 Feb 1996, that I had Degenerative Arthritis of the Spine and that was what was causing my problems including the sharp pain and numbness. The Medical Records Entry for that date was somewhat vague. I was later asked by my VSO if I could get a clarification of the Medical Records Entry, which I obtained and sent to the Atlanta VARO. It was dated as an Addendum for 2/28/1996 which read: 5-14-97 Addendum to visit of 2-28-96. His diagnosis should have been changed to degenerative arthritis of the lumbosacral spine after his MRI results.UC/sw Even if by some strange chance, my VSO never gave it to them, The VA requested all of my medical files from my Private Doctor's in 2005. Therefore they should have had it in their possession at the time of the 2008 BVA Decision and there would be no excuse for the VA not to include the Addendum in my Decision. This falls directly in line with your earlier link "The Power Of 38 Cfr 4.6" Also, I noticed the Dr. Deandrade kept referring to my age in his C&P Exam that it was normal for someone my age to have these types of problems. I thought that would fall under age discrimination. Bill
  9. Thanks Berta, I will definitely read it!!! Bill
  10. Ok, here is the second part of my CUE Claim. I tried to tell them over the phone but they didn't get a whole lot correct. I figured I'd tackle this at a latter date but with them calling, I felt at the time to go ahead and do it. Berta, it seems that some of what you covered in your link may well apply here as they never used my IMO showing Arthritis within a few months of being discharged. Berta, You may have already seen some of this. Tell me what Y'all think. Greatfully Bill. BENEFITS SOUGHT: RECONSIDERATION OF APR 7, 2015 VARO DECISION A disability rating of 10 percent for a low back disability granted for the period from November 13, 1995 to June 6, 2002, subject to the law and regulations governing the payment of VA monetary benefits. A disability rating of 20 percent for a low back disability granted as of June 7, 2002, subject to the law and regulations governing the payment of VA monetary benefits. PURPOSE OF CORRESPONDENCE: Submission of material regarding Benefits Sought for said Back Service Connection. On 7 April 2015, the Atlanta VARO made a determination of my case concerning my Back as follows: Entitlement to an earlier effective date of service connection for lumbosacral strain is not shown due to a clear and unmistakable error. A 0 percent is still warranted from November 13, 1995 through June 23, 2002. A 10 percent is still warranted from June 24, 2002 through April2, 2006. The 20 percent evaluation is still warranted and continued from April3, 2006. I disagree with those findings for the following reasons: The results of my 2005 BVA included that my claim be remanded due to failure to consider DeLuca in my previous C&P Exams of 1996, 2003, & 2004. My Back was a part of that decision. My 2008 BVA was a collection of twisted facts and improper use of the previously ruled C&P Exams of 1996, 2003, & 2004 that were found to be inadequate for Rating Purposes. Had the facts had been properly presented and all of my IMO’s properly used and weighted; the outcome would have been entirely different as I would have been Service Connected for a Compensable Disability Rating for a Low Back Disability with an effective date of 13 November 1995. On 30 Nov 2005, the Board of Veteran Appeals remanded my case concerning my left knee and Back due to failure of the previous 1996, 2003, & 2004 C&P Exams failing to take into consideration DeLuca. Regarding orthopedic disabilities, the United States Court of Appeals for Veterans Claims (Court) has held that criteria which provide a rating based on limitation of motion require consideration of 38 C.F.R. §§ 4.40 and 4.45 (regulations pertaining to functional loss of the joints due to pain, etc.). See DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, to the extent possible, the degree of additional disability caused by functional losses, such as pain, weakened movement, excess fatigability, or incoordination, should be noted in terms consistent with applicable rating criteria. However, such has not been accomplished in the present case. While the veteran underwent VA orthopedic examination in April 2003, the examiner did not state whether the veteran had any additional impairment or functional loss due to such factors as pain, pain on use, weakened movement, excess fatigability, or incoordination. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). That duty to assist includes providing a medical examination when such an examination becomes necessary to substantiate the claim. 38 U.S.C.A. § 5103A(d) (West 2002). Therefore, the veteran's low back disability must be evaluated in light of the both the current and prior criteria for spinal disabilities. Therefore, in light of the above, this claim is remanded for the following additional development: 1. The RO should contact the veteran and ask that he identify all sources, to include the Lawson Chiropractic Clinic, of private medical treatment not already of record for his service-connected lumbosacral strain and his claimed left knee disability. He should also be requested to furnish signed authorizations for release to the VA of private medical records in connection with each non-VA source identified. Additionally, the RO should request that the veteran provide information as to the dates of any treatment for these disabilities at any VA Medical Center (VAMC) since March 2005. Copies of the medical records (not already in the claims folder) from all sources should be requested. All records obtained should be added to the claims folder. If requests for any private treatment records are not successful, the RO should inform the veteran of the nonresponse so that he will have an opportunity to obtain and submit the records himself, in keeping with his responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159 (2005). The RO should also request or tell the veteran to provide any evidence in his possession that pertains to his claim. Furthermore, the veteran should be specifically informed as to what portion of evidence he is required/expected to submit, and which portion of the evidence the VA would attempt to obtain in order to assist the veteran in substantiating his claim, per 38 U.S.C.A. §§ 5103(a), 5103A; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. The veteran should be scheduled for a VA orthopedic examination in order to determine the impairment resulting from his service-connected disability of the lumbosacral spine. The claims file should be reviewed by the examiner in conjunction with the examination. The examination should include full range of motion studies, X-rays, and any other tests considered necessary by the examiner. The examiner should provide ranges of motion for the thoracolumbar spine, reflecting forward flexion, extension, left and right lateral flexion, and left and right rotation. In testing range of motion of the veteran's thoracolumbar spine, the examiner should note if the veteran has any additional limitation of motion due to such factors as weakness, fatigability, incoordination, restricted movement, or pain on motion. The examiner should also determine the frequency and duration of any incapacitating episodes resulting from the veteran's lumbosacral spine disability. Any other disability, to include any neurological disability, resulting from the veteran's lumbosacral strain also should be noted. The medical basis for all opinions expressed should also be given. 3. The veteran should be scheduled for a VA orthopedic examination to determine whether he has a current left knee disorder, and whether such a disability is due to or the result of an injury sustained during military service. The veteran's claims folder should be sent to a VA physician for review in conjunction with the examination. A complete orthopedic examination, to include any clinical tests considered necessary by the examiner, should be conducted. After fully reviewing the record and examining the veteran, the examiner should state whether the veteran does in fact have a current disability of the left knee. If so, the examiner should also state whether it is at least as likely as not (that is, a probability of 50 percent or better) that the veteran's current left knee disorder began during military service, or is otherwise etiologically related to any in-service disease or injury. The medical basis for all opinions expressed should also be given. 4. Thereafter, the RO should again consider the veteran's pending claims in light of any additional evidence added to the record. In readjudicating the veteran's increased rating claim, the RO should take into consideration 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, and the holding in DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. VA will notify the appellant if further action is required on his part. The purpose of the examinations requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2005) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). On 02 December 1994, a Med Board was held which indicated: “Examination of the lower back reveals that he can flex and touch his fingers to his toes, extension is to 50 degrees…” On 09 August 1995, a SF600 written by J.K. Evan LCDR, MC, USNR, an Orthopedic Surgeon wrote: “Eval: Back: He has flexion down to fingers 14" above the floor. Extension to 30°. On 28 Feb 1996, Dr. Choi, an Orthopedic Surgeon notated a limited Range Of Motion in his statement: “Forward bending is good up to 70° with minor discomfort.” Dr. Choi also explained on that same date of 28 Feb 1996, that I had Degenerative Arthritis of the Spine and that was what was causing my problems including the sharp pain and numbness. The Medical Records Entry for that date was somewhat vague. I was later asked by my VSO if I could get a clarification of the Medical Records Entry, which I obtained and sent to the Atlanta VARO. It was dated as an Addendum for 2/28/1996 which read: 5-14-97 Addendum to visit of 2-28-96. His diagnosis should have been changed to degenerative arthritis of the lumbosacral spine after his MRI results.UC/sw DX: 721.9 DEGENERATIVE ARTHRITIS OF THE LUMBOSACRAL SPINE Dr. Choi’s statements show that at the time of my Discharge, I had a Limited Range of Motion with a Diagnosis of Degenerative Arthritis of the Spine which rates a 10% disability. On 07 June 2002, Dr. Choi, an Orthopedic Surgeon notated that my limited Range Of Motion had continued to decrease in his statement: “forward bending is slightly limited at about 60 with some stiffness noticed.” My General C&P Exam of 2 February 1996, was bluntly speaking, a mere sham, a piece of science fiction literature that would have made Ray Bradberry proud. From the moment I was called in for my so-called Exam and told that he had looked at my x-rays and could not find anything wrong with me to 45 minutes later, where he sent me to x-ray as he said he didn’t have any, was nothing more than a rouse. Dr. Chamber spent no more than a total of ten minutes with me. Dr. Chambers directed me into an extremely large room which was not a normal examination room and asked me to change, after which he left. When he returned, several minutes later, he began the process of determining my Range of Motion without the use of a Goniometer nor did he take DeLuca into consideration. My Military Service Records were never reviewed. All of the information which I tried to give him concerning my previous treatments while on active duty and any current complaints were completely ignored. Dr. Chambers was not trying to determine if I had a medical condition nor was he trying to determine if that condition was related to my Military Service, but rather just going through the motions to get me in and out as if I was on a check off list. After he had me dress, he came back and sent me to get x-rays, stating he didn’t have any. In his C&P Report he wrote, “for completion sake.” This statement shows the negative attitude displayed towards me and my examination by Dr. Chambers. This General C&P Exam of 1996 should be completely removed from my C-File as it provides no Medical Evidence that can or should be used to substantiate or deny any Claim and has been ruled as Inadequate for Rating. A General Counsel opinion, issued in July 1995, held that, pursuant to the statutory duty under 38 U.S.C.A. § 5107(a) to assist a claimant in the development of facts pertinent to a claim, and the decisions of the Court interpreting that duty, a Department of Veterans Affairs examiner must review a claimant’s prior medical records when such review is necessary to ensure a fully informed ... examination or to provide an adequate basis for the veteran’s findings and conclusions (emphasis added). VAOPGCPREC 20-95 (O.G.C. 20-950). In that connection, the Court has held as follows: A VA examination which failed to include a review of all of the veteran’s medical records [was] in violation of the duty to assist. Culver v. Derwinski, 3 Vet.App. 292, 299 (1992). “The examiner must have the full medical record of the veteran prior to making the evaluation.” Shoemaker v. Derwinski, 3 Vet.App. 248, 255 (1992). “In order for [VA] to fulfill its duty to assist ... a thorough contemporaneous medical examination, one which takes into account the records of prior medical treatment, [is required] so that the evaluation of the claim[ed] disability will be a fully informed one.” 38 U.S.C.A. § 5107(a); Roberts v. Derwinski, 2 Vet.App. 387, 390 (1992); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Concerning my C&P Exam of 5 May 2003 conducted by Dr. Deandrade, Robin. Even though the Claims File was read, “DeLuca” however, was still ignored. Dr. Deandrade wrote: Forward bending was 70 degrees. Backward extension was 30 degrees. Right and left bending was 20 degrees. Right and left rotation was 25 degrees. Thus the patient has normal sagittal movements, but in the coronal plane there is some restriction as is in the rotational plane. The Court has further held, with respect to musculoskeletal disability, that an examination which fails to consider and address the provisions of 38 C.F.R. Part 4, §§ 4.40 and 4.45 (1995) is inadequate for rating purposes and that in such cases remand for another examination is mandatory (emphasis added). DeLuca v. Brown, 8 Vet.App. 202 (1995). The cited regulations provide, in pertinent part, that disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.... The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.... 38 C.F.R. Part 4, § 4.40 (1995). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations:...(b) More movement than normal (from flail joints, resections, nonunion of fracture, relaxation of ligaments, etc.) ...(f) Pain on movement, disturbance of locomotion, interference with ... weight bearing are related considerations (emphasis added). 38 C.F.R. Part 4, § 4.45 (1995). The Court has further held that the Board must analyze the effects of pain under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 (1995), as it affects the appropriate ratings to be assigned for orthopedic disability, whenever pain is a factor (emphasis added). See Brown (Brenda) v. Brown, 9 Vet.App. ___, U.S. Vet.App. No. 95-173 Mar. 1, 1996); Hicks v. Brown, 8 Vet.App. 417, 420-421 (1995); DeLuca v. Brown, supra. The Board notes that 38 C.F.R. § 4.59 provides, in pertinent part, that painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. ... The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. Part 4, § 4.59 (1995). Because of the 2005 BVA Decision, I was to be given a new C&P Exam, one that took into consideration DeLuca. On 4 April 2006, a new C&P Exam was conducted by Deborah Fordham, a PA-C. This time pain was notated during the actual exam. “Forward flexion is 0-50 degree, stopped secondary to sharp pains. Extension is 0-10 degrees with cervical spine pain. Left lateral flexion is 0-20 degrees. Right lateral flexion is 0-15 degrees. Left lateral rotation is 0-15 degrees with increased pain in the upper thoracic spine. Right lateral rotation is 0-15 degrees with increased pain in the upper thoracic spine.” Concerning my BVA dated 2008, this Decision was a collection of twisted facts and improper use of C&P Exams previously ruled as Inadequate for Rating Purposes. Had the facts had been properly presented; the outcome would have been entirely different as I would have been Service Connected for a Compensable Disability Rating for a Low Back Disability with an effective date of 13 November 1995. As it was, the deliberate alterations of my medical records by the Rater, tainted my BVA Case of 2008 and denied me of my due process rights. Cushman vs Shinseki. In my BVA of 2008 the Rater improperly used statements from C&P Exams previously ruled as Inadequate for Rating Purposes which included: “A January 1996 VA general medical examination report shows that the veteran had forward flexion of the lumbar spine to 95 degrees, extension of over 35 degrees, lateral flexion of 40 degrees, and rotation of 35 degrees in both directions. He had no scoliosis and was nontender. He did have 4/5 Waddell signs. His reflexes were normal as was his motor and sensor examination. The assessment was mechanical back pain with no evidence of intra-articular pathology or any other neurologic problems. The examiner concluded that, given the veteran's multiple somatic complaints, this probably just represents somatization given his overall affect and the diffuse nature of his complaints. The examiner could not find any hard clinical evidence that he had any gross organic pathology.” “An April 2003 VA joints examination report showed that the veteran had no scoliosis and normal lumbar lordosis, with no paravertebral spasm in the sense that marking time resulted in tightening and relaxation of the paravertebral muscles, indicating that they were able to relax. Forward bending was 70 degrees, backward extension was 30 degrees, right and le bending was 20 degrees and right and left rotation was 25 degrees. The examiner noted that the veteran had more sagittal movements, but in the coronal plane there was some restriction as is in the rotational plane, and that this is more than one would expect for a person of his age. X-rays of the lumbar spine showed minimal degenerative changes. In fact, there were just small osteophytes in the region of the posterior joints. There were well maintained disc spaces and no osteophytes on the bodies of the vertebrae. The veteran had small osteophytes in the upper lumbar spine. The examiner reviewed the veteran’s July 2002 MRI report and concluded that for all intents and purposes the MRI was normal. The examiner concluded that the veteran had considerable subjective complaints, but no significant objective disease could be identified. An April 2003 bone scan of the low back showed uptake in the lumbar spine typical of degenerative joint disease; however, there was no localization and such findings would be expected in a person of his age. Hence, the bone scan did not confirm any active inflammation.” The Rater then began using the Inadequate VA Examinations against my IMO’s. “a January 1996 VA general medical examination report shows that the veteran had forward flexion of the lumbar spine to 95 degrees, extension of over 35 degrees, lateral flexion of 40 degrees, and rotation of 35 degrees in both directions.” “The April 2003 VA examination report shows that the veteran had forward bending of 70 degrees, backward extension of 30 degrees, right and left bending of 20 degrees and right and left rotation of 25 degrees. The Board therefore finds that, as of June 24, 2002, the symptomatology of the veteran’s low back disability warrants a 10 percent disability rating for slight limitation of motion of the lumbar spine under Diagnostic Code 5292. 38 C.F.R.§4.7la, Diagnostic Code 5292 (2003).” Conclusions based on previous C&P Exams which had been ruled by my 2005 BVA as Inadequate for Rating Purposes for failure to take into consideration DeLuca. The Courts have held “An opinion based upon an inaccurate factual premise has no probative value.” Reonal, supra. The Rater went on the support his conclusions by the following: “The medical evidence prior to June 24, 2002 reflects that the veteran had essentially full range of motion of his spine. The November 1994 Medical Board Report shows that the veteran could flex and touch his fingers to his toes, that extension was to 50 degrees and on lateral bending he could touch his fingers to bilateral lateral knee joint lines. While a January 1996 private medical record reflected that the veteran’s forward bending was good to 70 degrees with minor discomfort and his bilateral bending was within normal limits, a January 1996 VA general medical examination report shows that the veteran had forward flexion of the lumbar spine to 95 degrees, extension of over 35 degrees, lateral flexion of 40 degrees, and rotation of 35 degrees in both directions.” Had the Rater not been busy twisting the facts and improperly using C&P Exams previously ruled as Inadequate for Rating Purposes to deny or downgrade my claim, but instead had taken into consideration my Service Medical Records and Private Treatment Records which showed both a Limited Range of Motion and that I had Degenerative Arthritis of the Spine which started before my Discharge of 12Nov1995. The Med Board held on 02 December 1994, showed that I could “flex and touch his fingers to his toes, extension is to 50 degrees…” However, by 09 August 1995, my doctor notated “flexion down to fingers 14" above the floor. Extension to 30°.” Although my Doctor did not notate the actual Range of Motion, this shows a significant loss of motion that occurred before I was Discharged from the Marines. Three Months later on 28 Feb 1996, Dr. Choi stated, “Forward bending is good up to 70° with minor discomfort.” Again on 07 June 2002, Dr. Choi stated, “forward bending is slightly limited at about 60 with some stiffness noticed.” These records show a Limited Range of Motion starting before I was Discharged that has continued to this day. In Summary, the VA’s failures to properly evaluate, diagnose, and rate medical conditions concerning my Low Back Disability along with its deliberate ignoring of my private medical records specifically my diagnoses of Degenerative Arthritis of the Spine, twisting of the facts, and improper use of C&P Exams previously ruled as Inadequate for Rating Purposes for failure to consider DeLuca, not only tainted my BVA Case of 2008 and denied me of my due process rights. Cushman vs Shinseki, but also constituted a Clear and Unmistakable Error. Therefore, the only records available for use to determine my Range of Motion are my SMR’s and IMO’s. On 17 July 2008 the BVA determined the following concerning the condition of my back: A compensable disability rating for a low back disability is denied for the period from November 13, 1995 to June 23, 2002. A disability rating of 10 percent for a low back disability is granted for the period from June 24, 2002 to April 2, 2006, subject to the law and regulations governing the payment of VA monetary benefits. A disability rating of 20 percent for a low back disability is granted as of April3, 2006, subject to the law and regulations governing the payment of VA monetary benefits. My BVA of 2008 should have found: A disability rating of 10 percent for a low back disability is granted for the period from November 13, 1996 to June 6, 2002, subject to the law and regulations governing the payment of VA monetary benefits. A disability rating of 20 percent for a low back disability is granted as of June 7, 2002, subject to the law and regulations governing the payment of VA monetary benefits.
  11. Thanks for everybodies imput. I was told over the phone by the VARO that there had been a Fast Letter Posted. That when dealing with a Hearing Loss Case, Tinnitus should also be assessed. As far as the EED goes, I'm looking for 13Nov1995 as that was the first day after my EAS. Anything they find during the first year after being discharged goes back to the day after your discharge date. I would have still been on active duty in 93 & 94. I had lost part of my hearing and was removed from my MOS by OSHA on Base. Thanks Again, Bill
  12. I see where I may be confusing you. In 1996, I filed a NOD and submitted evidence on my Hearing Loss Claim. In 2002, I contacted my local Congressman due to the failure of the VA to judicate my appeal. The BVA remanded my claim back to the RO, it was appealed and remanded a few times after that. In 2005, I again filed a NOD on my Hearing Loss Claim. In that NOD, I specifically complained about my Tinnitus and its effects. The decision was a 0% rating for Left Ear Hearing Loss. In 2011, I filed a claim for Right Ear Hearing Loss and Tinnitus. I was service connected for Right Ear Hearing Loss with a effective date of 13 Nov 1995 and Tinnitus with a effective date of 7 Sept 2011. After trying several times to file a NOD concerning an EED for Tinnitus as the VARO had kept my claim looking as if it was still open, so my VSO and I were late in filing a NOD., the VARO called me to discuss a CUE Claim. On 7 April 2015 the Atlanta VARO made a determination of my case concerning my Tinnitus as follows: Entitement to an earlier effective date for service connection of tinnitus is granted because a clear and unmistakable error was made; therefore a 10 percent evaluation is assigned effective May 10. 2005. Hope this helps Bill
  13. Yes, there was a NOD filed for on my Hearing Loss. My VSO never told me that hearing Loss and Tinnitus were seperate. I complained about it at all of my Audio C&P Exams. My first one wrote it down, the rest blew me off. I specficly complained about it in my 2005 NOD which is where they gave me an EED. In 2011 I reopened my Hearing case concernig my Right Ear and specficly claimed Tinnitus. They Service connected my Right Hearing Loss back to 13 Nov 1995 and ervice connected the Tinnitus. The Atlanta VA then played games by pretending that my Tinnitus Claim was still pending for over a year so I couldn't Appeal it. Even my VSO was under the impression that it was pending. Although since then I have figured out that the Georgia Department of Veterans Services is pretty useless and thats being nice!!! Remember; Roberson, Szemraj and Moody were all CUE Claims based on the fact that the VA errored in failing to dertermine all potential claims raised by the evidence.
  14. Good Afternoon Everybody. Here recently My EED for Tinntius was changed to a CUE case by my VARO and I was awarded an earlier effective date but not to my date of discharge date when I was diagnosed at my C&P Exam. I was told over the phone by the VARO that if I disagreed with their findings, it would be best to file a Motion to Reconsider as a BVA would take around two years to complete. That later I could still appeal if I felt it nessessary. I have written a rebuttal concerning my Tinnitus which I'm posting here for review as my VSO is useless. Thanks, Bill BENEFITS SOUGHT: RECONSIDERATION OF APR 7, 2015 VARO DECISION An Earlier Effective Date of November 13, 1995. PURPOSE OF CORRESPONDENCE: Submission of material regarding Benefits Sought for said Tinnitus Service Connection. On 7 April 2015, the Atlanta VARO made a determination of my case concerning my Tinnitus as follows: Entitlement to an earlier effective date for service connection of tinnitus is granted because a clear and unmistakable error was made; therefore, a 10 percent evaluation is assigned effective May 10, 2005. The statement made in “Reason for Decision:” “Therefore, entitlement to an earlier effective date for service connection of tinnitus is granted because a clear and unmistakable error was made and a 10 percent evaluation is assigned effective May 10, 2005, which is the date of the letter we received from you where you first explicitly claimed tinnitus (ringing in ears).” This was not the case: On 12 Nov 1995, I was discharged from the Marine Corps. On 06 Dec 1995, the Veterans Administration received my application for benefits. In my Audio C&P Exam Report dated on 02 Feb 1996, it was reported by my Examiner: “Veteran was seen for an audiologic compensation and pension evaluation on January 27, 1996. He reported progressive bilateral hearing loss and occasional bilateral tinnitus, onset 1993 or 1994.” Due to my 27 Jan 1996 Audio C&P Exam, I was service connected for Hearing Loss Left Ear. However, the ringing in my ears, diagnosed by the Examiner as Tinnitus, was not addressed. (Note in 2011, I was service connected for Hearing Loss Right Ear with a EED of 13Nov1995) The Doctor’s written statement was the result of a direct statement I made to the doctor stating that I had ringing in my ears while I was describing the symptoms of my hearing loss to ensure that this was also considered in my hearing claim. The CAVC has stated that an informal claim for VA benefits requires: 1. An intent to apply for benefits, 2. An identification of the benefits sought, and 3. A communication in writing. - Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009); - See also 38 C.F.R. § 3.155(a) (stating that an informal claim must “identify the benefit sought”). - CAVC, quoting its decision in Brokowski, went on to state that “[A] claimant's identification of the benefit sought does not require any technical precision.” - CAVC stated that a claimant sufficiently identifies the benefit sought “by referring to a body part or system that is disabled or by describing symptoms of the disability.” All three of the CAVA requirements for an informal claim were met on 06 Dec 1995 when the Veterans Administration received my application for benefits which included a claim for hearing loss. In Clemons, the CAVC held that even though vet claimed SC for a specific condition, VA may be obligated to consider SC for other diagnosed conditions as well if the vet mentions or if the vet’s records relate symptoms of the other conditions. A claimant "[does] not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition, whatever that is, causes him." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Consequently, VA "should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim," taking into consideration "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. VA commits error "when it fail to weigh and assess the nature of the current condition the appellant suffer when determining the breadth of the claim before it." Id. at 6. When a veteran files a claim, the VA is obligated to not only consider the claims specifically mentioned by the veteran, but also all benefits to which the veteran might be entitled that are supported by evidence of record. See 38 C.F.R § 3.103(a) (2012) (“Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the government.”) Once a claim is received, VA must review the claim, supporting documents, and oral testimony in a liberal manner. In Robinette v. Brown, 8 Vet. App. 69, 76 (1995), the Court held that claim documents must be read in a liberal manner so as to identify and carry out the required adjudication of all claims that are reasonably raised by the evidence of record whether or not formally claimed in a VA application. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) - holding VA has a duty to determine all potential claims raised by the evidence, applying all relevant laws and regulations. The Federal Circuit has held on several occasions (Andrews, Moody, and Szemraj cases) that VA is required to: Give sympathetic reading to the veteran’s filings Determine all potential claims raised by evidence Apply all relevant laws and regulations. M21-1 DUTY TO CONSIDER NOTED DISABILITIES, EVEN IF NOT CLAIMED Manual M21-1, Ch. 46.02, Change 400, 3/28/85, DISPOSITION OF DISABILITIES NOTED OR CLAIMED: a. Compensation Ratings. All disabilities claimed will be given consideration as to service connection and be coded as a disability rating on VA Form 21-6796.…Any additional disabilities noted will be coded, except: (1) Acute transitory conditions that leave no residuals. (2) Noncompensable residuals of venereal disease. (3) Disabilities noted only on the induction examination, or conditions recorded by history only. (4) Disabilities found by authorization to have not been incurred “in line of duty”. b. Pension Ratings. Code all claimed or noted disabilities on VA Form 21-6796 and show the percent of disablement for each unless the disabilities have been held to be due to the claimant’s own willful misconduct by Administrative Decision…. c. Supplemental Ratings. (1) All previously rated serviceconnected and nonservice-connected disabilities must be brought forward on supplemental ratings on VA Form 21-6796…. If a disability was coded or should have been coded in a rating decision – there is a potential claim that should have been adjudicated. A disability should have been coded in a rating decision if it was “noted.” In other words: If during the development of a claim for service connection for Disability A, VA obtained a diagnosis of Disability B, then Disability B should have been coded in the rating decision for Disability A. CURRENT M21-1MR PROVISIONS There are several directives in the VA Adjudication Procedures Manual, M21-1 Manual Rewrite (Manual M21-1MR) that stress that all inferred issues also must be adjudicated. Manual M21-1MR, Part III, subpart iv, 6.B.2. states: When preparing a rating decision, the Rating Veterans Service Representative (RVSR) must recognize, develop, clarify and/or decide all issues and claims… Whether they are expressly claimed issues, reasonably raised claims, or unclaimed subordinate issues and ancillary benefits. Manual M21-1MR, Part III, subpart iv. 6.B.3. states: A subordinate issue is derived from the consideration or outcome of related issues. Often the primary and subordinate issues share the same fact pattern. HARRIS v. SHINSEKI, No. 2012-7111 (Fed. Cir. Jan. 4, 2013) Addresses the analysis that VA must undertake – in determining whether an earlier effective date is warranted – whether a veteran has filed a claim for VA benefits. The Federal Circuit determined that the CAVC failed to apply the proper legal standard for determining whether the BVA correctly determined the earliest possible date for vet’s benefits. In the Federal Circuit Decision: • Court said that under its cases, pro se pleadings (vet not represented by atty) must be read liberally – • Roberson - VA has duty to fully develop any filing made by a pro se vet by determining all potential claims raised by the evidence. - Szemraj – VA must generously construe a pro se veteran's filing to discern all possible claims raised by the evidence. - Moody - Any ambiguity in a pro se filing that could be construed as an informal claim must be resolved in the veteran's favor. - The Federal Circuit determined that the CAVC failed to apply the proper legal standard for determining whether the BVA correctly determined the earliest possible date for vet’s benefits. - Federal Circuit stated that under its cases, pro se pleadings must be read liberally – Moody, zemraj, Roberson. - Court stated that even though three cited cases involved CUE appeals, rather than direct appeals, the VA’s duty to read pro se filings liberally is equally applicable to CUE claims and direct appeals. My Service Medical Record SF600 Dated 19 Nov 1990 stating: “Ringing in the ears with upper freq testing.” These Service Medical Records show relate symptoms that were never considered by the VA and therefore would constitute grounds for an Earlier Effective Date. The CAVC has held even though a vet claimed SC for a specific condition, VA may be obligated to consider SC for other diagnosed conditions as well if the vet mentions or if the vet’s records relate symptoms of the other conditions. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In Summary: On 06 Dec 1995, the Veterans Administration received my application for benefits. In my Audio C&P Exam Report dated on 02 Feb 1996, it was reported by my Examiner: “Veteran was seen for an audiologic compensation and pension evaluation on January 27, 1996. He reported progressive bilateral hearing loss and occasional bilateral tinnitus, onset 1993 or 1994.” According to the M21-1 Manual, Ch. 46.02, Change 400, 3/28/85, the Diagnoses of Tinnitus made by the Doctor during my C&P Examination should have been coded since it was identified and required adjudication as all claims that are reasonably raised by the evidence of record whether or not formally claimed in a VA application. Manual M21-1MR, Part III, subpart iv, 6.B.2. states: When preparing a rating decision, the Rating Veterans Service Representative (RVSR) must recognize, develop, clarify and/or decide all issues and claims…Whether they are expressly claimed issues, reasonably raised claims, or unclaimed subordinate issues and ancillary benefits. The assumption by VARO Atlanta that an Earlier Effective Date for Tinnitus did not exist until May 10, 2005 because it wasn’t written is in error. The VA committed error when it failed to weigh, assess, and take into consideration the nature of the current condition and symptoms that I described during this C&P Exam. This was included in the information the VA obtained in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009) HARRIS v. SHINSEKI, No. 2012-7111 (Fed. Cir. Jan. 4, 2013) Addresses the analysis that VA must undertake – in determining whether an earlier effective date is warranted – whether a veteran has filed a claim for VA benefits. The Federal Circuit determined that the CAVC failed to apply the proper legal standard for determining whether the BVA correctly determined the earliest possible date for vet’s benefits. In Federal Circuit Decisions, the Court has held: Pro se pleadings must be read liberally – VA has duty to fully develop any filing by determining all potential claims raised by the evidence. VA must generously discern all possible claims raised by the evidence. Any ambiguity that could be construed as an informal claim must be resolved in the veteran's favor.
  15. What it takes is coming in here and learning about your own claim, not relying on the VSO's to do their job. First, it's your claim, you lived it, you know it better than anyone except for God. Secondly, the VSO's, even the good one don't know all of the rules and loopholes. This means that we are going to have to take ownership of our own claims and not do as I and a lot of others in her have possibly done in the past and relied on our VSO's to do their jobs correctly. Third, my guess is that the VSO's are understaffed. Again this means we will have to come in here along with the BVA and Federal Court of Appeals and read, ask questions and study to hold the VA's feet to the fire and win what is rightfully ours in the first place. Fourth, It also means that we also hold our VSO's accountable too like the Georgia Dept of VS. Just my take, Billy