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ken1939

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About ken1939

  • Birthday 08/20/1939

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  • Location
    Mt. Airy

Previous Fields

  • Service Connected Disability
    40%
  • Branch of Service
    Marines

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  1. Iracx2, Regarding time frames, here is how my latest venture with VA went. I had a BVA hearing on 1/8/12. There were four issues to be resolved. The BVA adjudicated the cllaim and wrote a decision dated 4/11/12. The decision was to award benefits for two of the issues and to remand the other two. The file was then transferred to the Baltimore RO, (we thought for a determination of benefit amounts for the the two awarded issues - not so). The Baltimore RO held the file for 2 months and nobody knows why, then shipped the file back to the BVA. The BVA held the file untill 10/2012 and nobody knows why. The BVA then shipped the file back to the RO. The case was assigned to a DRO on 10/5/2012 to complete the process. Here is where the time line comes in: My DAV rep told me that the DRO has 180 days from 10/5/2012 to complete the case. I have no idea where this time line came from, but this is what I was told. This means my case should be completed on or before 4/3/2013. I don't believe this. All I can do is pass along what I was told. It has been my experience that the DRO's make up their own rules. I don't mean that in a sarcastic way. I have been dealing with them for 12 years and this is just the way it is.
  2. Thanks all. I have to do a lot of research based on the info you provided. I'll check back after I think it through. I do have a vetrep. DAV represents me, but not very well. I honestly don't mean any disrespect to DAV, maybe their workload is overwhelming. When I had my BVA hearing in Washington (Dec 2007) I had to ask the DAV to please just get out of my way. I believe they simply thought I had no chance of proving a nexus back to 1961. I insisted at the hearing that I present my own case which I did and I won. In 2008, at the suggestion from DAV, I filed for secondary conditions. It seemed like a good idea but, again, I found the DAV to be a hindrance rather than a help. I was denied because I did a poor job of developing my claim. Answers to the questions I am asking in this forum should have been provided by DAV without being asked. They have never said: This is how you should proceed, this is the evidence you will need and this is how you present it.
  3. Thanks Berta. It looks like we are both posting at the same time. I found your web site and it is loaded with cases where the diagnosis is radiculopathy, even cases including the medical definition as a 'disease of the nerve root'. The DRO didn't need to address the IMO or tests or anything else. Since the diagnosis is radiculopathy the case is denied for " the medical evidence of record fails to show that a chronic disability has been clinically diagnosed. It is noted that symptoms (to include pain and radiculopathy) are not disabilities and consequently, are not subject to service connection." The first denial simply stated that.it was being denied "because the medical evidence of record fails to show that this disability has been clinically diagnosed." Apparently this DRO makes up his own rules as to what a disability is.
  4. I see where my link isn't right. Even though I copy and paste, it looks right until I try to post it. Anyway, it is 'search.uscourts.cavc.gov/search/'
  5. I might have answered my own question. As soon as I searched on opinions instead of decisions I hit the mother load. The web site is: http://search.uscourts.cavc.gov/search/
  6. I have 2 issues: Issue 1) Headaches diagnosed as tension headaches or muscle contraction headaches secondary to SC cervical DDD. The headaches are SC at 0%. I am appealing for a higher rating. Issue 2) Lower extremity pain diagnosed as Radiculopathy secondary to SC Lumbar DDD. Denied. I am appealing for SC at 30%. For issue number 1 I have found favorable BVA decisions matching my headache diagnosis where the severity and frequency are the same. The headaches are not migraine. I understand now that the BVA decisions do not set a precedent and I need to pursue a different strategy. However, issue number 2 is a different matter. Three C and P exams have a diagnosis of Radiculopathy and one IMO does the same along with an EMG and an MRI to back them up. The DRO says Radiculopathy is a symptom not a condition. I have been denied twice for this reason and have now appealed to the BVA. It seems to me that I have plenty of medical evidence to support my claim but the sticking point is the one word, Radiculopathy. I found literally hundreds of BVA cases decided on Radiculopathy, some granted, some denied and some remanded. I could not find one single case where it was remanded or denied because Radiculopathy is a symptom not a condition. I felt certain that with all those BVA cases on my side issue number 2 would be a no brainer. As usual, though, that does not appear to be the case. As of this writing I am trying to find a data base of the CAVC decisions that do set precedents. Is there such a data base?
  7. Good answer Broncovet. I will do some more research following your advice. Thanks.
  8. I filed a form 9 for a BVA hearing. I am claiming headaches secondary to SC cervical DDD and also for lower extremity pain secondary to SC Lumbar DDD. My headache diagnosis is tension headaches and contraction headaches SC at 0 %. I am appealing the rating and find many favorable BVA decisions where the diagnosis is not migraine and nearly duplicate my situation The ratings are as much as 30%. My lower extremity diagnosis is radiculopathy, denied because radiculopathy is a symptom not a condition. I have found literally hundreds of BVA decisions where the diagnosis is radiculopathy and not one was denied or remanded because of the diagnosis of radiculopathy. I have read somewhere in a forum that BVA decisions cannot set a precedent. But if there are many, many of these decisions, will this be enough to prove my claim?
  9. J EMG "Conclusion The above study shows electrophysiologic evidence consistant with a left L5 radiculopathy." MRI "The MRI scan of the lumbosacral spine shows anterolishesis of L5 on S1 with moderate bilateral L5 neural foraminal narrowing as well as degenerative disk disease elsewhere." Ken
  10. Thank you J. From my own research I had come to that conclusion but after being told twice that I was wrong I began to wonder. The exact words in my second denial notice are: " Service connection for nerve pain in bilateral lower extremities is denied because the medical evidence of record fails to show that a chronic disability has been clinically diagnosed. It is noted that symptoms (to include pain and radiculopathy) are not disabilities and consequenly, are not subject to service connection." My first denial notice simply stated that a chronic disability had not been clinically diagnosed without mentioning radiculopathy. Then when I met with DRO and asked for an explanation he said radiculopathy is a symtom not a disability. He then sent me back to the same C& P examiner for the same diagnosis of radiculopathy. That got it off his desk and delayed the process for a couple of months. My POA is the DAV. I tried working with them when I first began this journey for SC for DDD. Although the DAV is POA of record I found I did much better without them. I went to the BVA in washington a couple of years ago and presented my own case to prove SC back to 1960. The advice from DAV was that it probably couldn't be done. They also advised me not to worry about the percentage until I proved SC. Big mistake. I just got your second message. Thanks for the additional info. Ken
  11. I have a diagnosis of radiculopathy from 3 different C & P exams as well as an IMO with an EMG and an MRI to back it up. Claim denied because radiculopathy is a symtom not a condition. I researched literally hundreds of BVA cases and found not one where a claim was denied or remanded because the diagnosis was radiculopathy. On the contrary, I found dozens of cases where the veteran received as much as 40% for radiculopathy. Has anyone else had this experience? I had an informal hearing with the DRO when I appealed my first denial (what a waste of time that was) and all he did was schedule me for another exam with the same doctor and got the same results. I am claiming pain in the lower extremities secondary to SC Lumbar DDD (currently at 20%). I have requested a BVA hearing. Thanks.
  12. Thanks Carlie, It helps. The more I look at decisions and opinions the better prepared I am to come up with my own definition that fits my circumstances. Once I decide what needs to be said I will have to convince the doctor to cooperate and use the VA terminology. By the way, I got an answer from IRIS where my question was what is the definition of a "characteristic prostrating attack" and where is this definition referenced in the regs. The answer was to refer me to the rating table which tells me nothing. It tells me how to rate it if I have it but it doesn't tell me what it is. In other words, a "characteristic prostrating attack" is a "characteristic prostrating attack." Just take our word for it. Ken
  13. Thank you rentalguy1, I am interested in VA literature to prove headaches as a secondary condition. My current 10% SC for the neck is for "degenerative disease of the cervical spine". I guess I could assume that Intervertebral Disc Syndrome (IVDS) is the same thing but I have learned not to assume anything. I am also SC for a secondary condition, "headaches associated with degenerative disease cervical spine". The VA examiner diagnosis was actualy "Muscle Contraction Headaches". My rating is 0% because of no "characteristic prostrating attacks" averaging 1 every 2 months over the last several months. I intend to appeal this but I need to know exactly what it is that I am appealing. I deal with headaches almost daily but about once every 2 to 3 weeks I have to lie down until the headache goes away. I have an appointment with a private neurologist on 1/29/09 and hopefully I can suggest the right wording for his report that the VA will accept. I know prostrating attack is important but I'm not sure it is in the doctor's vocabulary. I have searched medical dictionaries and other medical journals and have yet to find a reference to that phrase. The only place it shows up is on VA web sites and there is never a definition or a reference to VA regs. Your definition is as good as I've seen but I never get that wiped out. Thanks again, I really appreciate your input.
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