USMC2311

Thank you ALL for the insight and excellent information. My BVA appeal is for one contention (Ankle fracture open fixation) which should not be a complicated case; particularly with the evidence that has been submitted. Bottom line I still have some waiting and hopefully the Appeals Status on E-Benefits will be back up soon. I'll provide updates as I receive them.

lotzaspotz, Thanks for the reply, I am just happy that I got this far with getting a docket number assigned.

All, I just received an IRIS response to an inquiry about my BVA appeal for ankle contentions. It indicated that on 2 June 2015 a docket number was assigned to my appeal (form-9), It’s been 3 months, should my BVA packet have been certified by now and sent to the BVA? How long does it take the RO to certify appeal packets?

rwoods04, Did you recevie any updated status on your claim closed date?

rootbeer22, I am on pins and needles just waiting for the decision. I have checked eBenifits several times since yesterday since the CLAIM CLOSED status was posted on my FDC and yesterday sent an IRIS requesting for status. Thank you for your words of encouragement and I wish you the best on your claim as well.

Here’s my Fully Developed Claim info: Submitted Claim- 24 March 2015 (one contention) VA closed Claim- 9 June 2015 There was no C & P Exam ordered or conducted for this FDC. My evidence I submitted appeared to be pretty solid and my eBenifits status showed UNDER REVIEW during the 77 days. I pray the outcome is positive! If denied will they send a SOC and will it be indicated on ebenifits, so far it just shows in the Historical tab closed claim: 9 June 2015. Has anyone else received a positive FDC decision without having a C & P Exam?

I submitted my VA Form-9 in mid May 2015 to the VA Pittsburg RO and I received the green USPS card indicating that they received it at their mail room on 26 May 2015, As I continue to review my C-file and C & P exam report, more information is surfacing and I would like to submit a statement in support of claim, is it too late to do this? After getting a copy of my military ankle operation report it indicates that my talus was fractured and displaced in addition to the tibia and fibula fracture. I am certain that my C-File, SMR and Operation Report was never reviewed by the C & P Examiner, he even stated at the beginning of the exam that he did not have a copy of my records for review which I addressed in my NOD and Form-9. I also found out after doing some online searching that my C & P Examiner is a specialist in Obstetrics and Gynecology, what the heck! Okay getting back to the talus fracture and displacement; on my C & P Exam report there is a part that questions past and present impairment of the talus, well since the doctor did not have my C-file or any other records for review he checked this part as a NO. I would like to address this in a statement in support of claim which ties directly into my disagreement of my ankle DX code. Please advise.

Toddt and Georgiapapa, great advise! Colteam3, wish you the best on your increase. Please share your progress.

Fat, Yes the above information was included in my submission with the form-9. Gastone, Here is the REASON and BASES for my ankle, word for word copy and pasted from my SOC, thanks for asking“ 3. Evaluation, residuals, fracture, right ankle with surgical scar rated as 10 percent disabling. In determining evaluations for disability of the ankle, consideration will be given to whether or not the ankle joint is ankylosed (frozen), and, if so, whether the ankle is frozen in a favorable or unfavorable position. If ankylosis is not present, consideration will be given to limitation of motion, deformity, and the degree of impairment of gait, weight-bearing and/or other impaired function of the ankle joint In relation to your claim, a VA-contracted examination was conducted on March 23, 2013 which confirmed painful, limited motion on plantar flexion to 40 degrees. On repetitive motion testing, there was no further functional loss. Based on examination results, VA Rating Decision dated August 7, 2013 confirmed and continued the previously assigned 10 percent evaluation. You submitted a notice of disagreement to this decision which was received on June 14, 20 14. Additional medical evidence dated September 2014 submitted in support of your claim included range of motion findings indicating you were able to achieve plantar flexion to 30 degrees, with dorsiflexion to 10 degrees. Upon de novo review, the 10 percent evaluation assigned for residuals, right ankle, with surgical scar is confirmed and continued. A 10 percent evaluation is assigned for moderate limitation of motion. A higher evaluation of 20 percent is not warranted for limitation of motion of the ankle unless there is marked limitation of motion (less than l 0 degrees plantar flexion or less than 5 degrees dorsiflexion). ------end----- I am contending that my ankle disability be coded (5262) and rated correct, as my Nov 1983 SMR ankle operation report indicates (trimalleolar ankle fracture = fibula and tibia fracture and talus displcement and fracture). Since filing the NOD I have submitted additonal evidence from private doctor appointments in support of the severity of my ankle and in addition submitted with my form-9 a copy of my SMR ankle operation report would should support a more acurate picture of my ankle disability.

This is unacceptable! I hope all goes well with your situation.

I thought I would provide an update. A SOC to my NOD was issued on 20 April 2015. The (2) two contentions that I filed with the NOD where denied an increase (Shoulder-20% and Ankle-10% already service connected). After receiving and reviewing the SOC and all evidence I have submitted since filing my NOD back in June 2014 and the recently received Service Medical Record ankle operation report, dated Nov 1983, I decided that it would be best to fight for the contention that I had the most evidence, which was my ankle. My SMR ankle operation report provides a diagnosis of trimalleolar ankle fracture. In 1983 I fractured my fibula and tibia and my talus was fractured and displaced resulting in two screws fixing the fibula and two scars on both ankles. I don’t believe the ankle operation report was ever in the VA possession. The reason why I say this is because after recently reviewing my C-File I notice where the VA doctors placed at least two request for a copy of my SMR, this happened prior to each time I had a C&P exam back in 1989 and 1998 during increases to my service connected disabilities and it appears that my SMR was never received or included into my C-File. I recently requested a copy of my SMR from the NRA, but only received my ankle operation report which happened to be what I like to believe the smoking gun in regard to my appeal. Thankfully when I filed my NOD I indicated that my current moderate ankle limitation (5271) of 10% should be properly coded as moderate fibula & tibia impairment (5262) of 20%. When I received my SOC again I indicated on my VA Form-9 that my current moderate ankle limitation (5271) of 10% should be properly coded as moderate fibula & tibia impairment (5262) of 20%. Two weeks ago I mailed my VA Form-9 to appeal to the BVA along with a copy of my SMR ankle operation report which I don’t believe was ever considered. I am hoping that the SMR ankle operation report sheds light on a more accurate picture of my ankle disability, and that I receive the proper code and higher rating.

Acknowledged.

Guys I will do just that and forward a copy to Newnan as well. Thanks for information.

Buck52 and asknod thank you for responding. Newnan is the office where I have sent all other correspondence but the SOC mentioned to return it to the Regional Office holding your records. I was a little hasty and just had my wife send out my Form-9 back to the Pittsburgh Regional Office, Attn: Appeals Team before catching these postings. I hope this does not cause any major issues with the packet getting properly submitted to the BVA. Fat, yes and amazing, the SOC was a quick turnaround from the date of RO’s receipt of my NOD. I believe the one contention that I am appealing will be a winner because of the fact I finally received a copy of my Service Medical Record (ankle) operation report which was not included in my C-File which now sheds light on the actual ankle disability and diagnosis. I hope the next step is as quick as the first. Again thanks

I finally received my SOC in regard to the NOD I submitted back in June 2014. No increase on three contentions. I will continue my appeal for one of the three. Thankfully I recently received a copy of my ankle operation report from my SMR, to my surprise I see evidence that relates to my ankle appeal that has never been addressed by the VA. The question now is where do I mail my form-9? I am currently working overseas and my records and all correspondence has been out of the Regional Office in Pittsburgh. Interestingly the SOC was sent to me from the Regional Office in Phoenix Arizona. Do I mail my form-9 back to the RO holding my records? Or is there a new process to mail form-9's to the RO in Phoenix or to the Intake Center in GA? Please advise...where do I mail my form-9? Thank you

Gastone, Thanks for the tip on the Marine Corps League. Notorious Kelly, I guess this is the reason why they are now taking all veterans correspondence through the new intake centers to be scanned. Eventually those rooms housing all of those hard copies will turn into file server rooms.

Gastone, Thanks for the info on the DRO Hearing. I am also following your recommendation on the “Sworn Statement” vice a Statement in Support of Claim. I am actually working on one as I gather more facts from my C-File and recently requested a copy of my SMR which was not available and in anyway part of my C-File, not one page. Yes, I have a copy of my C-File which included my C & P examination report, which I am going over very carefully and there are some discrepancies with the C & P exam report. I am reading on here were veterans have requested copies of their C & P notes, are the medical examiner notes a separate document from the actual C & P exam report? I ask this because there are no separate notes in regard to my C & P exam, I find this a little old, however the examiner did make very brief remarks to some of the questions on the C&P exam report. If I request another copy of my C-File do I have to request the whole file or can I just request a specific date range of the C-File? I have also submitted letters to the DAV and VA to revoke my POA. I am not pleased with their delayed communication and general answers to my questions. All correspondence that I have submitted is all sent US Mail Cert/Return Receipt. So far so good on all medical evidence submitted and received. Semper Fi and thanks!

This confirms my decision to revoke my POA. I cannot believe the e-mail I received this morning from the DAV. Finally the DAV responds to my questions by e-mail and they also stated that the VA received my NOD for tinnitus. WHAT THE HECK! I stated back to them that I never filed for tinnitus and requested that they confirm if this is what they are seeing in the system under my name. I am sure it is an error on DAV, since I did receive written notification from the VA acknowledging receipt of my NOD for Ankle-post open fixation and Shoulder-limitation of motion on 22 July. Thankfully I sent my written letter to DAV and VA to revoke my POA yesterday in the mail (certified/return receipt).

Berta- I am currently not contending the rating I have for my eczema of 10%, my flare-ups have been controlled by prescribed topical corticosteroids. I wish I knew about this information back in 1989. Yes, I sent the private medical report from June 2014, as supporting medical evidence. This report also mentions the pain at surgical area. Gaston- I asked for a DRO review but not sure if those two go hand in hand or if I will be afforded the opportunity for a personal hearing when that time comes, I also currently work overseas. JRReihs- I have two scars running vertical on my tibula and fibula side of my ankle bone, but not long or wide enough to be rated. After looking through the CFR, I see that scars can be rated for pain. If I would have known this and had my C & P exam results to review I would have listed that also on my NOD because now that I have a copy, the C & P exam and recent medical evidence states that there is pain at the surgical area. Is it too late to mention the pain at surgical scar area? You folks are great!

1989-I was medically discharged for eczema and rated at 10% service connected. 1999 and 2000-The VA rated my ankle (5271-Moderate Ankle Limited Motion) at 10% and shoulder (5202-Dislocations) at 20% service connected. Total rating: 40%. Oct 2012-I filed for reevaluation and increase for all three service connected disabilities. Mar 2013-C & P Exam. Examiner stated that x-rays will be order. I was never contacted or afforded the opportunity to have x-rays done according to the examiner. Aug 2013-Received VA Decision. No change in the three ratings, but received an increase of 10% for limited motion of the shoulder. Total rating: 40%. Feb 2014-Seeked private medical appointment (overseas) and was referred for Ankle x-rays and shoulder MRI. Right ANKLE FINDINGS: Frontal, lateral and oblique views of the right ankle show no fracture or dislocation. Two screws are present in the distal right fibular metaphysis without evidence of loosening or fracture. The ankle mortise and other imaged joint spaces are maintained. Mild osseous sclerotic changes are present in the medial and lateral malleoli. Plantar enthesophyte is noted. There is no significant soft tissue swelling. IMPRESSION: 1. No acute osseous abnormality. 2. Two screws in the distal right fibula without evidence of complication. 3. Mild degenerative changes in the ankle. Right SHOULDER FINDINGS: SUPRASPINATUS: The tendon is intact. There is heterogeneous fluid signal and thickening, consistent with tendinosis. INFRASPINATUS: Chronic articular sided partial thickness tear with a large segment of scarring, measuring 1.5 ern, Some fibers remain intact, as the tendon does not appear retracted, TERES MINOR: Intact. SUBSCAPULARIS: Intact. There is heterogeneous fluid signal and thickening, consistent with tendinosis. LONG HEAD OF THE BICEPS TENDON: Normal. MUSCLE VOLUME: Normal in signal and bulk. ROTATOR CUFF INTERVAL: Unremarkable. AXILLARY POUCH: Evaluation is limited given the relative absence of fluid in the glenohumeral joint space. No large bone fragments. LABRUM: There is near complete circumferential degenerative tearing of the labrum. A small amount of anterior labrum maintained. Multiple para-labral cyst involving both the anterior inferior and posterior inferior labrum. ACROMIOCLAVICULAR JOINT: Abnormal with hypertrophy of the capsule and fluid within the joint space. No widening of the joint space. Subchondral cystic and sclerotic changes. ACROMION TYPE: II, small enthesophyte at the deltoid insertion. Undersurface osteophyte at the acromioclavicular joint. No downsloping. BONES: There is extensive amount of subchondral sclerosis and cystic changes of the glenoid. Ring osteophyte of the humeral head. SUBACROMIAL/SUBDELTOID BURSA: Small amount of fluid in the bursa. OTHER: Unremarkable. IMPRESSION: 1. EXTENSIVE OSTEOARTHRITIC CHANGES OF THE GLENOHUMERAL JOINT. 2. PRIOR HIGH-GRADE PARTIAL-THICKNESS ARTICULAR SIDED TEAR OF THE INFRASPINATUS TENDON. 3. SUBSCAPULARIS AND SUPRASPINATUS TENDINOSIS. 4. ACROMIOCLAVICULAR JOINT ARTHROSIS. Used this radiology report with NOD as medical evidence. June 2014-Filed NOD for insufficient C&P Exam and noted that Right Ankle should be rated under (5262- Fibula Impairment with Moderate Ankle Disability) at 20% secondary to (5003- Painful Motion) at 10% vice the current (5271-Moderate Ankle Limited Motion) at 10% and Right Shoulder (5201-Arm Limitation and Painful Motion) at 20% secondary to my existing (5202-shoulder dislocation) at 20%.. July 2014-Seeked private medical appointment with Ortho Doc (stateside) for ankle and shoulder pain. Additional x-rays taken of ankle and shoulder. Prescribed ankle support brace and recommended brace fitting for shoulder. Ortho Doc also suggested in report for ankle a well-defined lucent lesion in the distal fibula and plantar calcaneal enthesophyte/spur. Also submitted this report as supporting medical evidence. Your opinion and thoughts are appreciated. Thank you.

broncovet, In my decision to revoke my DAV Rep, I will definitely take your comments into consideration. And to everyone else, many thanks!

I humbly thank each and everyone of you for your great information and assistance. Thank you.

Carlie, Yes, I see the document in my C-File were the VA requests what they want the examiner to examine and pay attention to and it does not mention anything about reviewing my C-File or SMR, and assume this is the VA’s procedural work flow in assisting the veteran, not very detailed. I am beginning to be more convinced that my home VA office in Hawaii and now the VA Office in Pittsburg that is handling my files because I am overseas never had or has a copy of my SMR. I believe this because I also see in my C-File where the VA Rating Specialist and the VA Office in Hawaii both requested a copy of my SMR back in 1989 and 1998, but there is no SMR, not one page in my C-File. The only thing I found was a reply from the UMSC Personnel Records section providing a written note with an incorrect discharge date and incorrect rank information to the VA, thankfully this had no impact on my initial rating decision. In any event I am moving forward to get a copy to review and maintain in my files.

At the time I filed my NOD (June 2014), I stated that the C & P Exam was insufficient; I stated what I believe I should be rated and included a private ortho clinic radiology report on ankle (X-RAYS) and shoulder (MRI). Since then I have submitted additional medical evidence from another ortho doctor I had an appointment with when I was on leave in the states just recently. Is it okay to submit medical evidence when it becomes available during the duration of the NOD appeal? I figure this is my opportunity tocontinue with appointments and build my case. Point well taken in regard to initially requesting the C-File and SMR together from the VARO, however I only requested the C-File initially and you figure they would send me everything in the file if in fact they actually have a copy of my SMR. As I mentionedearlier I will be requesting a copy of the SMR from them also. Thanks

Notorious Kelly, Thanks for that bit of info.