Appeal Status

[luvHIM]

My question is related to my claim that is in appeal status. I received a call from NSO (who BTW is not local and local chapter usually can't answer questions for me because they "don't know") informing me that my C-file is with the "Appeals Officer." NSO went on to suggest that this is good because "we" are right where we should be at this point. Stated "Appeals Officer" will review the file and has the authority to decide the claim, if I have a case, without the need for a hearing. I've been waiting to be assigned to the list for a travel board hearing. Did not make the list this year but was informed I should be on it for next January 08.

So, my question is: how often does an Appeals Officer or DRO, if the terminology is interchangeable, decide a claim in favor of the veteran without the need for a BVA hearing?

I've searched the hadit.com website in order to avoid a new thread on an old topic. But I was unsuccessful in finding anything that specifically addressed my question. So, if this is a repeat question, in advance, please forgive me. Thanks for your assistance.

Edited July 18, 2007 by luvHIM

[luvHIM]

Vike17,

Let me be the first to say I stand corrected. I have submitted many medical statements supplied by my VA physicians and private rheumatologists. But I just discovered, after spending a pretty full day reading through the Electronic Code of Federal Regulations that an IMO is quite different than what I presumed.

[Vike17]

luvHIM,

There are a couple of things with your claim that don't really add up and I'll try to address both of them in terms that you can understand.

First of all, you said you are already service-connected for a "back injury" since 1984 at 0%. I'm assuming this is for the lumbar spine. If this is the case, you were rated under the old rating criteria (prior to Sept. 2002) and from the looks of things you were probably assigned DC 5295 Lumbosacral strain, which in all likelyhood was correct because, generally, Ankylosing Spondylitis takes time to develope and probably wouldn't have shown up on an x-ray back then (even your doctors stated this). This in turn maybe would warrant the VA to assign DC 5289 Ankylosis of the LUmbar Spine. At any rate the rating criteria for a 0% evaluation under DC 5295 calls for "With slight subjective symptoms only." Depending on what the C&P examiner stated back in 1984-85 and what the x-rays showed as far as degenerative arthritis, the VA could have also assigned a 10% rating under DC 5003 (your disability would then be hyphenated and would be 5003-5295). The X-rays would have needed to show arthritis involving "2 or more major joints or 2 or more minor joint groups. For VA purposes each disk segement is considered a minor joint and multiple disk segements are considered a minor joint group. But since Spondylitis takes time to actually develope on x-rays, there probably wasn't sufficient evidence back then to assign the 10% evalutaion under DC 5003. Also since there wasn't sufficient evidence back then to warrant a diagnosis of Spondylitis, that means any rating under DC 5002 wasn't warranted, such as 10% due to limited range of motion when there is a non-compensable rating of motion under any other DC concerning that particular joint affected.

So now if you are already service-connected for your lower back, then normally any subsequent diagnosis made regarding it is actually a moot point in the eys of the VA. And since you applied for an increase in 2003, your back would be rated either under the old criteria or the new criteria (post 2002) with DC's 5235 through 5242, whichever results in the higher evaluation. Under the new criteria it's all about range of motion (DC 5243 Intervertebral Disc Syndrome also entails incapacitating episode, which do not apply to you), meaning how far you can bend your back without pain. Taking into account pain, fatigue, and weakness is called the DeLuca Criteria which stemmed from the Court case you cited in your prior post.

Your assumption that;

"The chronicity factor for low back condition should have awarded 10%, if nothing else"

is not correct. The 10 evalution under the old criteria is "with characteristic pain on motion," and under the new criteria it is "Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees."

Having said all of this, I come to the second part of my analysis. After reading through your posts, I am to wonder if you are even service-connected for your lumbar spine at all. I say this because you keep referring to;

"although adjudicated for ankylosing spondylitis, resulted in a denial and medical description for lumboscaral strain, chronic. VA rating examiner noted consistent treatment of chronic lower back pain from SMR's. I received a permanent physical profile that listed lumbosacral facet syndrome as the diagnoses, with permanent restrictions of NO PROLONGED STANDING, SITTING OR WALKING; NO HEAVY LIFTING (MORE THAN 10LBS), NO BENDING, TWISTING, OR EXCESSIVE REACHING. This profile was given to me AFTER several times of being treated for lumbar strain by a military Orthopedic DR"

If you are already service-connected for your lumbar spine anything in your service-medical records are irrelevant in regards to a claim for an increase! It's all about how your back is currently doing and any medical evidence since your last C&P exam and rating!

"VARO even went so far as to send me a letter stating that they requested my Army SMR from NPR and had been notified that my records were lost and nowhere to be found. They sent this letter, unaware that I had also requested my Army SMR and had received a letter almost 2 months prior from NPR stating that my "...Army SMR has been loaned to the local VARO in your area. You may contact the local VARO in your area to obtain a copy." Well, I had already done that and the records were probably in route while they were typing up the falsified letter they sent me"

Also, if the RO had to request your SMR's then that leads me to believe that there is more to this claim than whats being presented. If you were already service-connected back in 1984, the RO would have already requested those records and they would already be in your C-file. They wouldn't have needed to request them for a claim for an increase, unless you told them about some clinical (impatient) records that aren't a part of your SMR's!

"Vike17, I would also like to make clear that I was already service connected. I didn't need to establish that... You are almost coming across like the VARO. I'm not trying to prove I had a low back condition. That was already established before I got of the military. I was asked to show how my condition had worsened...I DID NOT PRESENT ANYTHING NEW TO THE VARO. THE VARO SIMPLY DECIDED TO DISMISS WHAT THE VA PHYSICIANS WERE ESTABLISHING AS MY WORSENED "BACK CONDITION", which is how it appeared in my records until the VARO gave it a description. I DIDN'T KNOW ANYTHING ABOUT LUMBOSACRAL STRAIN, CHRONIC UNTIL MY CLAIM WAS DENIED AND THIS WAS THE MEDICAL CONDITION VARO HAD OUTLINED IN THERE REASON FOR DENIAL"

Furthermore, just because something is in your SMR's doesn't mean it is automatically servic-connected by the VA. Did you actually file a claim in 1984 and did you receive a actual rating decision from VA stating that your lower back was determinded to be service-connected with a 0% evaluation being assigned???

Another thing that struck me was the fact that the VA was asking for a nexus between your lumbosacaral strain and your current Spondylitis. If your SMR's showed low back pain and lumbar strain and you aren't service-connected for that, and you have Spondylitis now, these are two complete different conditions and would need a nexus from a doctor. You also said that have 5 IMO's from three different doctors. Well, if those doctors didn't review your medical records and didn't give a full rational for why they came to such a conclusion, then the VA will assign little to no weight to them when deciding an issue, regardless if it a VA doctor doing a C&P exam or a private doctors. Having said this, if what you said as far as;

"the etiology from in-service supports the diagnosis of Ankylosing Spondylitis. Every IMO has meticulously addressed how they can be certain this condition began in service and connect the dots. I have two IMO's (one recent) from outside rheumatologists...None of the IMO's that had been submitted were addressed"

...the VA may not have received those IMO's for a number od reasons, especially if they aren't even listed as evidence in a rating decision or SOC! You may need to check to see if they even had them to consider.

"Secondly, lumbar strain does not cause Ankylosing Spondylitis. BUT Ankylosing Spondylitis does cause lumbar strain. And, for the record, Ankylosing Spondylitis does not just attack the spine. It is medically proven to be a systemic disease, especially when left untreated. And the prescribed treatment for Ankylosing Spondylitis is MOST DEFINITELY NOT bed rest"

Like I said before, this would have to have been addressed by a doctor in an IMO. It may be common knowledge within the medical community, but the VA needs something in writing from a doctor saying YOUR Spondylitis has caused some other medical condition! The RVSR and DRO cannot make that determinatiion.

"I even have documentation of how other VARO's adjudicate claims like mine. How the VARO should adjudicate a veteran's claim when they are treated for lumbosacral strain in service and the veteran discovers years later he/she actually has Ankylosing Spondylitis"

It doesn't matter what anyone elses claim shows. Each claim is unique to that individual person as far as medical records, the nexus, and symptoms are concerned. If you're arguing the merits of your claim based on what and how someone elses was decided, you're going to be one frustrated veteran!!! The VA will decided your claim on your evidence ect..., not how they may have decided someone elses claim.

One thing I also noticed was that you said you have 'severe osteoarthritis at C3-C4." did you claim your cervical spine also?? If you did, the cervical spine is generally rated seperately from the lumbar spine and you would need an IMO from a doctor stating that your lumbar spine condition (either the lumbar strain or the Spondylitis has some how caused your cervical spine disability.

I could go on and on about the inconsistancies of how you presented your claim. The bottom line is if you're already service-connected for your lumbar spine, which I'm having serious doubts of, then any other subsequent diagnosis is irrelavent. And if you're already service-connected for the lumbar spine and you claimed the cervical spine as secondary to your lumbar spine, or any other condition for that matter, as I said before, you'll need an IMO to make the connection. If you are not service-connected for your lumbar spine, you'll need an IMO making the connection between your inservice lumbosacral strain and your current Ankylosing Spondylitis.

Vike 17

Edited July 22, 2007 by Vike17

[luvHIM]

So now if you are already service-connected for your lower back, then normally any subsequent diagnosis made regarding it is actually a moot point in the eys of the VA. And since you applied for an increase in 2003, your back would be rated either under the old criteria or the new criteria (post 2002) with DC's 5235 through 5242, whichever results in the higher evaluation. Under the new criteria it's all about range of motion (DC 5243 Intervertebral Disc Syndrome also entails incapacitating episode, which do not apply to you), meaning how far you can bend your back without pain. Taking into account pain, fatigue, and weakness is called the DeLuca Criteria which stemmed from the Court case you cited in your prior post.

Your statement is not totally correct, which makes it incorrect. What you stated is not the complete and accurate or correct adjudication protocol for rating ankylosing spondylitis active disease. Please take note of the word ACTIVE. What you are referring to is residual ankylosing spondylitis only.

AND, I'm not sure why you think incapacitating episodes would not apply to me?

DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration

Washington, D.C. 20420

August 31 2006

xxxxxxxxxxxx

xxxxxxxxxxxx

xxxxxxxxxxxx

Dear xxxxxxx,

I am pleased to respond to your letter to Secretary Nicholson regarding VA's rating evaluation process of Ankylosing Spondylitis (AS).

You suggest there is a problem with how VA evaluates the residuals of AS. Ankylosing Spondylitis is currently evaluated in accordance with 38 USC Para. 1155 using the Schedule for Rating Disabilities. This schedule evaluates AS by constitutional manifestations of impairment of health, incapacitating exacerbations, and disability of the joints, muscles and nerves. However, some of these residual disability residuals may indeed overlap. As a result, the law precludes (or prohibits) the AS active disease process residuals to be combined with residual ratings for the limitation of motion or ankylosis.

Thus, the disability evaluation most advantageous to the veteran (be it the constitutional manifestations, limitation of motion, or ankylosis) will be assigned the appropriate percentage evaluation. This percentage evaluation represents the overall disability evaluation of the AS by the Schedule for Rating Disabilities, using Diagnostic Codes (DC) 5002 and 5240.

If AS becomes so severe as to affect entirely different body systems, such as neurological deficits of bowel and bladder, these deficits may be evaluated under appropriate DC’s, rated as separate disabilities, and incorporated in the combined overall disability evaluation of the AS.

For your information, however, the rating criteria for AS can be obtained in the VA’s Schedule for Rating Disabilities (38 CFR, Part 4) via our web site at http://www.va.gov.

I hope this information is useful to you.

Sincerely,

Renee L. Szybala

Director

Compensation and Pension Service

If you are already service-connected for your lumbar spine anything in your service-medical records are irrelevant in regards to a claim for an increase! It's all about how your back is currently doing and any medical evidence since your last C&P exam and rating!

That is basically the same thing the SO said back in 2003.

I am service connected and continued at 0% disabling.

Originally (03/03) 1-800 rep simply stated I was service connected for a back injury 0% disabling. I asked if I could still file a claim (2003) because my back problems were worse. I was told yes and it was suggested I use a VSO to help me.

I went to Department of Veteran Services and the SO filed my claim (have copy of original form 21-4138. It states: "Please consider veteran for an entitlement to increase for her service connected back injury. Please request medical records from SAVAHCS."

As of 10/03/06, HINQ shows Service Connected disability 5237-Lumbosacral or Cervical strain 0% Orig Eff Dt Jan 18, 1979. Service Connected low back disorder 0% Orig Eff Dt Apr 20, 1984. Combined %=0

I was encouraged to file a claim by my VA primary and the SO. What led to me filing claim for increase:

Results of test:

HLA-B27 positive

Elevated WESTERG

Elevated CRP

Positive TB skin test with negative findings for active disease.

X-ray of Lumbar spine 03/05/03 Complete osseous ankylosis of the sacroiliac joints. This appearance is most suggestive of an inflammatory spondyloarthropathy. There is severe periarticular sclerosis in the pubic region consistent with Osteitis Pubis. There is DJD and facet arthropathy of the lumbar spine.

MRI: L3-L4 moderate hypertrophy of the facets; L4-L5 moderate bulging of intervertebral disk and moderate hypertropy of the facets; Degenerative facet sclerosis seen at L5-S1 with moderate spurring seen adjacent to the superior end-plate of L5.

Rating Examination 10/04 (in part):

Objective Finding:

Lumbar spine is flattened which is consistent with progression of moderate to severe ankylosing spondylitis. Flexion is to less than 15 degrees; extension is less than 10 degrees; flexion to both right and left laterally are each less than 10 degrees; right and left lateral rotation of the thoracic spine are each less than 5 degrees. Rating examination and x-rays in 08/03 showed no scoliosis. She now has mild scoliosis of the upper and mid thoracic spine. There is decreased range of motion in her cervical spine with flexion to 25 degrees and extension to 40 degrees; right and left lateral tilts are less than 5 degrees each. Pain is noted during range of motion with any motion and repetition of either the lumbar, or cervical spine. Repetition was not asked of this lady considering the diagnosis.

Impression: Ankylosing Spondylitis as shown by Dr. Bode at this rheumatology clinic.

Symptoms began in 1978 and appeared to be due to lumbosacral strain and repeated many times. AF/Army SMR's show care during service for lumbar strain and chronic low back pain.

"AF and Army SMR's, C-file and examination of the back are the basis of saying that her ankylosing spondylitis was most likely beginning in service in 1978 but not then recognizable as such. I conclude that the cause of ankylosing spondylitis is unknown. The onset of ankylosing spondylitis beginning in 1978 is most likely but the only manifest injury was said due to strain. Her ankylosing spondylitis is not caused by or a result of her low back strain suffered in 1978. Her low back disorder in 1984 described in service as chronic low back pain is most likely due to the progression of her ankylosing spondylitis.

ADDENDUM: THE DEGREE OF PAIN WITH MOTION EITHER THE LUMBAR OR CERVICAL SPINE IS SUCH THAT SHE IS EFFECTIVELY INCAPACITATED DAILY DURING THE PAST YEAR OR MORE.

NO DIAGNOSTIC STUDIES WERE DEEMED NECESSARY FOR THIS ESTABLISHED DIAGNOSIS." (Caps are not mine)

Vike17,

I almost want to laugh and cry, you are raising every point that has been raised and continues to be the most baffling case my NSO has ever seen.

YOU STATED: Also, if the RO had to request your SMR's then that leads me to believe that there is more to this claim than whats being presented. If you were already service-connected back in 1984, the RO would have already requested those records and they would already be in your C-file. They wouldn't have needed to request them for a claim for an increase, unless you told them about some clinical (impatient) records that aren't a part of your SMR's!

The RO DID NOT have to request my SMR's. They sent me a letter with an attached form (that showed Records could not be found). I was informed that it was not even a form VARO uses. It is one that the clinics would have used a long time ago. I think someone took it out of my SMR and copied it and then sent it to me because I had requested my SMR's.

Now, I know you probably don't think that way of the VARO. But I don't put anything pass them anymore.

At any rate, VARO did have my SMR's because they sent them to me. I requested my SMR's from RO, after I received the letter from NPRC in 03 stating that's who had them. I received a copy of both AF/Army SMR's in February 05, AFTER the 10/04 rating exam and AFTER the second denial (requested reconsideration in August 04 after the first decision letter denying me in June 04).

Furthermore, just because something is in your SMR's doesn't mean it is automatically servic-connected by the VA. Did you actually file a claim in 1984 and did you receive a actual rating decision from VA stating that your lower back was determinded to be service-connected with a 0% evaluation being assigned???

I'm not stupid. I did not have my SMR in my possession when I filed the claim. So, I got the information regarding my service connection from VA by calling the 1-800 number. The rep not only told me of my SC status but he was also the one who told me I could get a copy of my HINQ from the VAMC Eligibility Office. I did that. I did not service connect myself on a presumption just because I injured my back in service. I ASKED VA if I was service connected. As, I stated, yes I received an actual rating decision that my lower back was service connected and 0% disabling.

Another thing that struck me was the fact that the VA was asking for a nexus between your lumbosacaral strain and your current Spondylitis. If your SMR's showed low back pain and lumbar strain and you aren't service-connected for that, and you have Spondylitis now, these are two complete different conditions and would need a nexus from a doctor.

I never said the VA was asking for a nexus. I was merely being sarcastic in saying the "nexus" is in the medical evidence that is already in my C-File.

You also said that have 5 IMO's from three different doctors. Well, if those doctors didn't review your medical records and didn't give a full rational for why they came to such a conclusion, then the VA will assign little to no weight to them when deciding an issue, regardless if it a VA doctor doing a C&P exam or a private doctors. Having said this, if what you said as far as;

It is actually five different doctors. But three of them are VAMC physicians. Well, I have the copies and from what I've read, they were more thorough than expected.

It doesn't matter what anyone elses claim shows. Each claim is unique to that individual person as far as medical records, the nexus, and symptoms are concerned. If you're arguing the merits of your claim based on what and how someone elses was decided, you're going to be one frustrated veteran!!! The VA will decided your claim on your evidence ect..., not how they may have decided someone elses claim.

Yes, every claim is unique to the individual. I am not arguing the merits of my claim based on anything other than the Federal Code of Regulations which have been misapplied in my case. Your proclamation, however, is interesting given the fact that many veterans due win there claims on the basis of established BVA and Court of Appeal decisions made prior to their claim being adjudicated.

The bottom line is if you're already service-connected for your lumbar spine, which I'm having serious doubts of, then any other subsequent diagnosis is irrelavent.

Well, you can doubt all you want. I'm not appealing to you. Besides, I don't know what else to tell you. I have not claimed anything but what I've stated. I requested an increase for my service connected back injury.

I could go on and on about the inconsistancies of how you presented your claim.

I presented my claim just the way it has been and is.

[Vike17]

luvHim,

I know exactly how ankylosing spondylitis is rated, I was trying to explain how you were possibly rated back in 1984 (now it appears it's 1979 as an effective date). And from the looks of it, I was correct in that assumption. If you were service-connected, now back in 1979, for lumbocaral strain, in all likelyhood the DC would have been 5295, and when you applied for an increase your DC was changed to the new rating criteria with a DC of 5237. I was also trying to explain the different senarios of why the VA assigned that DC and not combining it with either DC 5002 or 5003.

As far as the letter from the VA, let me try to explain this again so you understand. Ankylosing spondylitis is a form of rheumatios arthritis, not degenerative arthritis (I mentioned DC 5003 in my prior post in the event that back in 1984 there wasn't any evidence of rheumatiod arthritis but degenerative artritis due to the lumbar strain) and would warrant either the assignement of DC 5240, or both by being hyphenated as 5002-5240. Normally you would be rated under 5240 due to the limitation of motion or DC 5002 if the rheumatiod arthritis is active, whichever rating would result in the higher evaluation. However, if the limitation of motion does not warrant a compensable evalution under 5240, meaning that there is forward flexion greater than 85 degrees, and the disease is active, then you would be given a 10% evalution under the criteria of DC 5002 because there is objective finding of limitation of motion such as muscle spasm or swelling. When the VA hyphenates a DC with another, it identifies the body system affected by the arthritis! Furthermore, you cannot be assigned a 10% or 20% rating under DC 5002 and another 10% or 20% under DC 5240 beacuase, as the letter from VA states, this would by pyramiding. Also as I noted in my prior post, as did the letter from VA, if you have ankylosing spondylitis in another bodily etiology, you can obtain service-connection for that also.

"AND, I'm not sure why you think incapacitating episodes would not apply to me"

If you would read my prior post, you would notice that I was reffering to the incapacitating episodes under DC 5243. If your ankylosing spondylitis is an active process, then you could be assigned a rating of 20% or higher under DC 5002 due to "incapacitating exacerbations." These are two totally different rating criteria between the two.

One other thing that doesn't add up with your claim is that you said;

"As of 10/03/06, HINQ shows Service Connected disability 5237-Lumbosacral or Cervical strain 0% Orig Eff Dt Jan 18, 1979. Service Connected low back disorder 0% Orig Eff Dt Apr 20, 1984. Combined %=0"

You cannot have two rating for the lower back, provided that "HINQ shows Service Connected disability 5237-Lumbosacral or Cervical strain 0% Orig Eff Dt Jan 18, 1979,' means lumbocasral strain and not cervical! If this is the case, then someone at VA screwed up and enter both into the computer. Having said that, why would the VA assign a 0% evaluation for a lower back condition in 1984, which is a bit over 4 years after you were orginally service-connected. Did you apply for an increase in 1984 which prompted VA to enter something in the computer????? Are you service-connected for the cervical spine also (maybe in 1979????).

"I never said the VA was asking for a nexus. I was merely being sarcastic in saying the "nexus" is in the medical evidence that is already in my C-File"

Then what does this mean????? ; "the VARO is still denying me a rate increase because they state there is no nexus."

"The RO DID NOT have to request my SMR's. They sent me a letter with an attached form (that showed Records could not be found). I was informed that it was not even a form VARO uses. It is one that the clinics would have used a long time ago. I think someone took it out of my SMR and copied it and then sent it to me because I had requested my SMR's...Now, I know you probably don't think that way of the VARO. But I don't put anything pass them anymore...At any rate, VARO did have my SMR's because they sent them to me. I requested my SMR's from RO, after I received the letter from NPRC in 03 stating that's who had them. I received a copy of both AF/Army SMR's in February 05, AFTER the 10/04 rating exam and AFTER the second denial (requested reconsideration in August 04 after the first decision letter denying me in June 04)."

If you were service-connected and the VA requested additional records friom the the NPRC in St. Louis, then my geuss is you made some type of remark to tyhem that there mught be additional medical records that they didn't have. Even though you were already service-connected at the time and any subsequent SMR's from the DoD would actually be a moot point, the VA MUST obtain any of those brought to light by the veteran in accordance with the VCAA of 2000.

After re-reading everything in these posts, I have to say that your claim is so muddled up. You aren't giving any straight answers as to what is what and you are adding things to each post such as acuisations and so forth, which actually have little to no bearing on your claim what so ever. Before I keep going on and on about this, I will say these things in my obsevations;

1) In all likely hood your problem lies within the statement from the C&P examiner in which he states;

"I conclude that the cause of ankylosing spondylitis is unknown. The onset of ankylosing spondylitis beginning in 1978 is most likely but the only manifest injury was said due to strain. Her ankylosing spondylitis is not caused by or a result of her low back strain suffered in 1978."

Then he contradicts himself by saying;

"Her low back disorder in 1984 described in service as chronic low back pain is most likely due to the progression of her ankylosing spondylitis."

2) The VA has assigned two ratings for the lower back, which appears to be adding to the confusion. What was the reason for them to assign another rating in 1984, 4 years after the initial rating???? Did you apply for an increase back then, and if so, what were the findings from the C&P exam?????

What does the actually rating decision state from 1979 AND 1984. Not just the DC's but the actaul decision. The older rating decisions probably wont have the "evidence" or "reasons and Bases" section, but rather in a format with the letters "a," "b," ect..., and they are on, I think, VA form 21-679 and 21-679b. They also may be on VA Form 21-6789 too!

3) Like I said before in my previous posts lubosacral strain and ankylosing spondylitis are two different animals and since the VA examiner in part couldn't asociate the two in his findings, this is probably where your problem lies. Having said this, as I said before, normally once you're service-conmnected for a certain bodily etiology, then any subsequent diagnosis is actually a moot point. Depeneding on what the other 3 - 5 IMO's state (I can't tell how many you have as you have contardicted yourself on this) and how thoroughthey where with their rationals, they may not have been enough to orveride the C&P examiners findings. Hell, from the looks of things, the VA didn't have these IMO's before them to consider.

4) The only thing that comes to mind is the VA may have had enough medical evidence to seperate the two and determined (with the medical evidence in front of them, meaning minus the IMO's) that the AS was infact causing the increased disability and not the lumbar strain. I have never seen this happen, but I suppose the VA could do this depending on the medical evidence before them.

If this is the case, you need to get the IMO's to the VA that state the disabilty noted in your SMR's was in fact the early manifestation or the aggravation of AS. I say aggravation because, generally AS begins in childhood and takes year and years to maifest itself!

5) You need to read the entire SOC. There is a "reason and bases" section, which in all likely hood went into more detail as to why the claim was denied than the first rating decision did. If it is a compltete cut and paste job, which I doubt it was, of the first rating decision as you said it was, then go back and read the entire rating decision.

6) If the VA was able to seorate the two condition as I said in number 4, then the bottom line is you're missin g the nexus between the two!

I'm willing to bet that there is much more to this situation that is being presented. I say this because each post by you brings to light something else. Furthermore, since your claim was also reviewed by the Appeals Team, the chances of them overlooking something as simple as you have presented it is actually pretty remote. I'm not saying it couldn't happen, but the chances aren't in your favor.

I wish you the best of luch in getting this resolved.

Vike 17

Edited July 23, 2007 by Vike17

[luvHIM]

Vike17,

I appreciate you explaining it better. But we can end it here, unless you can think of something that might help me out.

Having said that, why would the VA assign a 0% evaluation for a lower back condition in 1984, which is a bit over 4 years after you were orginally service-connected. I don't know.

You cannot have two rating for the lower back, provided that "HINQ shows Service Connected disability 5237-Lumbosacral or Cervical strain 0% Orig Eff Dt Jan 18, 1979,' means lumbocasral strain and not cervical! If this is the case, then someone at VA screwed up and enter both into the computer. I called the 1-800-827-1000 this morning, just to affirm everything. Per the VA rep: I am service connected for a back injury in 1979. I am, as known, still rated at 0%. DC is 5237 for Lumbosacral or Cervical strain.

Did you apply for an increase in 1984 which prompted VA to enter something in the computer????? I did apply for an increase but I didn't pursue the claim. The VA Decision in ‘79 is unchanged. It is not known why a HINQ in '06 is showing a back disorder for '84. Concluded it is a definite error. Claim in '84 did not change decision in '79 because I didn't move forward with the claim. It was suggested I go back to VAMC E&E and request another HINQ because it should show current status.

Are you service-connected for the cervical spine also (maybe in 1979????). NO.

I have absolutely no reason to fabricate anything. I'm giving it to you as straight as I know.

Have total and permanent fully favorable award for SSD from SSA (retroactive February 2004) based my VAMR and statement from VA rheum. I know...two different organizations. But, I'm just saying...SSA took to heart the same statements VARO claim in the SOC under Evidence that they have also reviewed.

The only physician statement RO would not have been able to review before I appealed is the one from my new rheumatologist, which was sent recently certified return receipt on May 4, 2007. It was received by NSO and forwarded May 9, 2007 to Appeals Office for placement in C-File.

Then what does this mean????? ; "the VARO is still denying me a rate increase because they state there is no nexus." Perhaps I have used "nexus" out of context. VARO is suggesting by there decision to deny me a rate increase that there is no "nexus" or connection between the ankylosing spondylitis and lumbosacral strain. I have not been asked by RO to provide a "nexus" or specifically asked by RO to provide an IMO from a physician which gives a "nexus."

SOC is about 12 pages of CFR definitions. Reasons and Bases for decision is EXACTLY what was written in the Reasons and Bases for decision in the December 04 decision. It begins with RO overview of the evidence. Then it gives C&P exam findings. Then it states: "The examiner concluded by stating after a review of your medical records and claims file the cause of your ankylosing spondylitis is unknown; however your anklosing spondylitis would not have been caused by or the result of your strain in service. Therefore, although your back condition is severe in nature, your problems are the result of your ankylosing spondylitis, which is not related or caused by service. Therefore, in the absence of any evidence that your lumbar spine condition has worsened your 0 percent evaluation for your chronic lumbosacral strain is confirmed and continued." SOC concludes with "condition is noncompensable unless your ankylosing spondylitis is...(and then it gives the whole limitation of motion based on the flexion and so on, which I won't write out) [RO referenced 4.71a (5242) (08/03) 5242 Degenerative arthritis of the spine (see also diagnostic code 5003)]."

If you were service-connected and the VA requested additional records friom the the NPRC in St. Louis, then my geuss is you made some type of remark to tyhem that there mught be additional medical records that they didn't have. Even though you were already service-connected at the time and any subsequent SMR's from the DoD would actually be a moot point, the VA MUST obtain any of those brought to light by the veteran in accordance with the VCAA of 2000. I did include in my statement of the claim my prior dependency status (by marriage) to active duty military and that I did not have my dependent medical records. But that is totally different Record Holding Facility. It has nothing to do with my SMR.

After re-reading everything in these posts, I have to say that your claim is so muddled up. Agreed.

You aren't giving any straight answers as to what is what and you are adding things to each post such as acuisations and so forth, which actually have little to no bearing on your claim what so ever. Sorry you feel this way. You are right, I am in defense mode. This claim has drug out for a long time and if I didn't have a "valid or legitimate" claim it would have been nice to have my VSO/NSO point out why. I have gotten more info on the possibility of why from you than I have heard in the past four years since the initial filing of my claim.

Before I keep going on and on about this, I will say these things in my obsevations;

1) In all likely hood your problem lies within the statement from the C&P examiner in which he states;

I can see that a lot more clearly now.

Depeneding on what the other 3 - 5 IMO's state (I can't tell how many you have as you have contardicted yourself on this) I have not meant to contradict myself. I have stated that 3 were from VA docs (to include the VA rheum) and two were from outside private rheumatologists, one of which is my current treating rheumatologist.

This is copied from

luvHIM

Posted Jul 21 2007, 04:12 PM

I do not have just one IMO. I have five. I have three from all of my VA docs and they are scanned in my VAMR. I have one from the VA rheum (also scanned in my records); I have a C&P rating exam concurring with the findings of my VA rheum and addressing limitation of motion, spinal changes even from the first C&P exam I had, as well as pain

on motion. I have two IMO's (one recent) from outside rheumatologists.

This sentence "I have one from my VA rheum" was just me merely pointing out that my VA rheum's statement should have been given definite weight...C&P exam report stands alone...I was not adding anyone else to the list.

If this is the case, you need to get the IMO's to the VA that state the disabilty noted in your SMR's was in fact the early manifestation or the aggravation of AS. I say aggravation because, generally AS begins in childhood and takes year and years to maifest itself! Are you suggesting I send them (under separate cover, again? All of the ones from the VAMC are in my VAMR, which RO has access to. I have provided everything to RO through my NSO, which he has verified by letter (have all of those). I received letters from the NSO stating what action was taken with anything I have provided them. Why wouldn't RO not have them? Better yet, why would they list them under EVIDENCE if they didn't really review them already.

As you mentioned, the claim should have been presented as service aggravation. However, I don't believe that is really addressed in any of the statements I have provided to RO from medical physicians, at least not using the word "aggravation" specifically.

Partial from VA rheum’s letter: "A positive HLA-B27 indicates that the likelihood of her developing AS while in service is more likely than not. It clearly supports that she had as much a propensity for developing active AS disease as not. It is my opinion that her AS pre-existed her enrollment in service in 1978 and went undetected. This disease is known to manifest in a person's early teens to early 20's and seemingly tends to go into remission. So, it is most likely that her AS manifested as bilateral sacroiliitis and was misdiagnosed as lumbar strain. The occurrence of bilateral sacroiliitis at her age of 18 is most accurate. She first began to present with persistent low back and leg pain in service, after her back injury. She continues with persistent low back pain and pain radiating into her lower extremities bilaterally. Radiographic evidence supports long standing inflammatory arthritis and it undoubtedly began in service at the age of 18, as her sacroiliac joints are now bilaterally fused, sclerotic and eroding. I plan to do a workup for Ankylosing Spondylitis and start her on Azulfidine and Methotrexate.

Partial from new rheum’s letter: "AS most certainly can occur in women and progress over time. AS most certainly can be severe in women, as well. It is very possible to go years without an AS diagnosis, especially for women, who have their symptoms applied to other conditions (eg., Fibromyalgia). X-rays changes in the sacroiliac joints is, unfortunately, the normal point a rheumatologist will support a diagnosis of AS. When x-rays show complete fusion bilaterally, with continued spinal activity be it the lumbar, thoracic or cervical spine, as in Ms. X case, it is considered severe. She has an elevated CRP, SED and WESTERG rate which indicates active disease and inflammation. I am not surprised that the original diagnosis was misattributed most likely to trauma or may have followed trauma as an inciting event. While in service she developed a multiple facet syndrome and was given a Physical Profile Serial Report dated November 1978 resulting in permanent restrictions, which was characterized by progressive stiffness. She was not to have prolonged standing, sitting, or any heavy lifting. There is a history of chest pain also seen in her military medical records diagnosed as costochondritis that dates as far back as March 1978. History of chest pain continues in her VA medical records, again, diagnosed as costochondritis and symptomatic of her AS. Retrospectively, because she is HLA-B27 positive and has military medical records as early as 1978 indicating progressive stiffness, I would make a diagnosis of ankylosing spondylitis. Today her condition is worsened with frank persistent axial stiffness which now persists most of the day. She has started Enbrel for progressive disease, along with INH for a history of positive PPD, and Indocin. She definitely should have her rating of disability substantially increased as she now has a permanent life-limiting form of arthritis, which will interfere with any future care for herself along with any hobbies or ability to perform any regular compensated service. I would therefore request that her level of disability be re-evaluated by the Department of Veterans Administration and she be service connected for her AS." ( the letters are shortened (left out exam findings), of course, just to give you an overview of what has already been presented or sent to RO).

Furthermore, since your claim was also reviewed by the Appeals Team, the chances of them overlooking something as simple as you have presented it is actually pretty remote.

I don't know if my claim has actually already been reviewed or not. The NSO stated my C-file is with an "Appeals Officer" but did not say that it had already been reviewed. I started this thread to find out if an Appeals Officer could decide the claim at this point...that's all I wanted to know). But whether the Appeals Officer has already actually reviewed my C-file was not stated.

In fact, rep at the 1-800 number this morning said that from where he was reading there was a "suspense date" of 07/24/07. His guess is that some sort of action needed to happen by or on that date but he didn’t know what. He said my C-file is with an "Appeals Officer" and something about the file being “signed for” on July 19, 2007.

Anyway, for what its worth, you have made me take a closer look at everything and actually helped me. I wish I had known what I know now before I submitted a claim.

You are probably right, which would make sense because you’ve been doing this, obviously, way longer than I have had a claim in process. My observation of everything you have presented is: unless the BVA views my claim from a “fresh” perspective and gives weight to ALL the evidence (including the doctor statements) and not JUST the C&P exam report, which is what it appears RO has done, I will probably have a hard time getting the increase.

Thank you for your assistance!

[Vike17]

luvHIM,

"I don't know if my claim has actually already been reviewed or not. The NSO stated my C-file is with an "Appeals Officer" but did not say that it had already been reviewed. I started this thread to find out if an Appeals Officer could decide the claim at this point...that's all I wanted to know). But whether the Appeals Officer has already actually reviewed my C-file was not stated...In fact, rep at the 1-800 number this morning said that from where he was reading there was a "suspense date" of 07/24/07. His guess is that some sort of action needed to happen by or on that date but he didn’t know what. He said my C-file is with an "Appeals Officer" and something about the file being “signed for” on July 19, 2007"

As I said before, your claim was already reviewed by the DRO. The SOC was the review. What's probably happening now is that since you filed the Form 9 and requested a hearing with BVA (either the traveling board or vidoe conference, it doesn't matter), the recent activity at the Appeals Team is more than likely them getting ready to have your hearing. Once you have that hearing, your C-file will probably go back to the rating board so they can decide the most recent IU claim first before they ship it off to the BVA. Normally all open claims will be decided before the C-file can go to the BVA!

"I have not been asked by RO to provide a "nexus" or specifically asked by RO to provide an IMO from a physician which gives a "nexus.""

The VA wouldn't have needed to ask you for evidence of this in their DTA letter. You were applying for an increase. You just happened to supply them medical evidence of another disability AFTER the fact. The VA wouldn't have known there was another disability in the mix until they actually evaluated all the evidence shortly before the decision was made. Since the initial rating decision was a "cut and paste" job as you say, then at least your SO should have seen that the two disabilities needed a nexus. Remember the rating and the SOC said; "Although your BACK CONDITION is severe in nature, your problems are the result of your ankylosing spondylitis, which is not related to or caused by service. Therefore, in the absence of any evidence that your LUMBAR SPINE condition has worsened your 0 percent evaluation of CHRONIC lumbosacral strain is confirmed and continued."" I'm not really saying you are at fault here. Your SO should be trained to see this and take the needed corrective steps!

"The only physician statement RO would not have been able to review before I appealed is the one from my new rheumatologist, which was sent recently certified return receipt on May 4, 2007. It was received by NSO and forwarded May 9, 2007 to Appeals Office for placement in C-File...

I have three from all of my VA docs and they are scanned in my VAMR. I have one from the VA rheum (also scanned in my records...

Are you suggesting I send them (under separate cover, again? All of the ones from the VAMC are in my VAMR, which RO has access to. I have provided everything to RO through my NSO, which he has verified by letter (have all of those). I received letters from the NSO stating what action was taken with anything I have provided them. Why wouldn't RO not have them? Better yet, why would they list them under EVIDENCE if they didn't really review them already."

At this point it's really hard to tell if ALL of your IMO's and medical evidence were considered by the VA. At any rate, you need to make sure that during your hearing with the BVA, they are aware of and in possession of ALL of your IMO's; especially the one from your new rheumatologist, which you sent in already! Also make sure the VA has your SSA records!

One thing to keep in mind is that just because you were treated at a VAMC does NOT mean the RO has those records. The RO and the VAMC are two seperate entities within the VA (the RO is part of the VBA and the VAMC is part of the VHA). The two don't routinely talk to each other other than to set up C&P exams and so forth. You need to tell the RO of these dates and treatments at any VAMC, they will then obtain them via the "Duty to Assist." You can also do this at your BVA hearing!

As I said before, it looks like the VA was able to seperate the lubosacral strain and ankylosing spondylitis based on the medical information before them at the time of their decision. Like I said before, I've never seen this happen but it can be possible. Also the lower back disability in 1984 looks to be the continuation of the 1979 rating. I say this because you said you applied for an increase but did not follow through with it. In this case the VA would simply have continued the 0% evaluation. If the VA really did give you a second evaluation for your back, even if it was at 0%, in 1984 by mistake, I find it really hard to believe VA would have missed correcting this simple mistake TWICE. The first time being the application for an increase in 2003-04, and the second time by the DRO! I mean it could have happened, but easy ones like this are pretty rare!

The bottom line is you need to the connection or "nexus" beteen the Lumbosacral strain and the ankylosing spondylitis.

Vike 17

Edited July 24, 2007 by Vike17