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    • IF the VA "reduces" (cuts) your SMC S, then fight it as a reduction.  Remember, VA has to jump through all the hoops to reduce you, and going from 100% plus SMC S, to 100% is a reduction in rating.   File a nod to said reduction, if it happens, and argue that VA did not comply with this, below:  3.344 Stabilization of disability evaluations. (a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind. (b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made. (c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.   If VA argues they made CUE in awarding said SMC S, well then make them show it was UNDEBATABLE, that you did not qualify for SMC S.  For example, did they do a C and p exam where the examiner said you were definately "not" substantially confined?  They would have to have medical evidence that you DID NOT meet SMC S eligibility, and the burden would be on them to prove you did not meet it.   Also, if the VA made 2 or 3 decisions, and continued your SMC S, then VA is admitting they THOUGHT you were entitled to SMC S, therefore, its not undebatable..even VA is not clear on it!!   Cue is tough for us, make it tough for them, too.  Use their words and ratings against them.  
    • Roger that Navy4life  You did a well prepared Job on your part! other veteran should learn from this.
    • Me too. I was in Atlanta the other day and listening to my local radio stations via my phone when I heard part of an advertisement, so I looked it up and found that.
    • Just to clarify there weren't any errors in my informal hearing.  The errors that i received were in the decision/SOC because the DRO made the egregious error by refuting my medical opinion (Nexus Letter) I submitted from my VA Podiatrist.  A DRO can not refute a medical opinion because he is not a medical expert.  The DRO unfairly adjudicated the issues per the VA requirements of CFR 3.102, reasonable doubt, has not adequately applied CVA precedent opinion Moore V. Derwinski, relative equipoise was not adequately addressed and the doctor's highly probative IMO was not reconciled by the CP exam refuting opinions.  Possibly the most egregious error by the DRO, is that the DRO denied based on the DRO's own "non-medical" opinion.  The DRO is not qualified to refute an IMO opinion of the doctor's stature. That was the basis for the new DRO over turning my decision.  She told me that she was not sure why the other DRO denied me because the Nexus Letter was one of the best she had seen.  





OldDave

Back Pain - Multiple Bulging Discs - Surgery

13 posts in this topic

I’ve been in the VA Health System less than a year. About 4 weeks ago, I went to my pvt doctor complaining of back pain (I still have pvt insurance). He sent me for X-rays and an MRI and gave me a muscle relaxer and some pain meds. The MRI results say I have multiple bulging discs in the lower spin. Pvt doc wants to refer me to a neurosurgeon. I have my deductible met but my 20% would still be about $3000. I’m not sure I want surgery in any event. I’m feeling a lot better than I was 4 weeks ago. I know that if I do nothing, I’ll end up in pain and flat on my back again. And, I probably won’t be able to afford the pvt insurance next year.

Should I take my X-rays and MRI results to the VA clinic and try for a referral to neurology or orthopedics? I didn’t go there first because I was in pain and not moving around very well. I figured a referral would probably take a few weeks at a minimum.

Any advice would be appreciated

Thanks,

OldDave.

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Old Dave, is this a service connected injury? The reason why I ask is this past Feb. I went to see my Primary Care doc, before she left for good, and asked her to put in a consult to go to a different VA to see the neurosurgeon for my back. Same deal, leg pain and numbness, all service connected though. At that time she told me that she couldn't even refer me since the nearest VA was backlogged with patients just waiting for an appointment for an evaluation. I was approved for fee basis outside the VA. One of my happiest dealigns with the VA, since I didn't want them to operate on me, for the simple reason that the Richmond, Virginia, VA is a training hospital, and from month to month you'll never see the same doc when it comes to backs.

Is this something that just came on you, or have you battled it for years? I've battled mine for years, and finally found an alternative type of surgery, something the VA wouldn't have offered, that gives me more hope. I've been on painkillers for the last 7 years, Vicodin no less, and will have liver issues soon enough I'm sure.

Bottom line is, if it's at a point that you can't stand it, do something about it, but you said it was subsiding so not as bad. In the end it's about quality of life. Mine has been so bad for the last year, that I can't put it off anymore, even at the age of 40. Good luck.

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10thFO, thanks for your response.

I'm not service connected for my back. I'm at 80% though, so the VA should cover the treatment. My first visit to my VA PCP was last Feb. and it just so happened I was having back trouble at the time. He prescribed muscle relaxers and pain pills and I recovered nicely in a week or two. That was the first time in recent years that I've had trouble. I'm 64 so all in all I guess I shouldn't complain. If the worse it gets is two episodes within 8 months I can deal with that. The problem is, if I should have the surgery, the private option probably won't be there next year. Although, after October 2010, I'll be eligble for Medicare. But, between January and October, the VA will probably be my primary care provider.

Have you had the surgery already or are you working on it? I hope it gives you relief and good results. Good Luck.

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Dave, if you will be eligible for Medicare that soon, then I say wait. Use the VA for it's drugs or whatever for now. You should be good until then. I'm having surgery this friday, and it's acutally a surgery that the VA or Medicare will only pay for, more progressive. Private insurance companies won't pay for this yet as it costs more than other more risky to you alternatives. Good luck brother.

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When I was at the VAMC neurological ward for diagnosic workup, a veteran in the bed next to me was in for neck surgery.

After the surgery they told him they would have to put him under again & finish the operation on the other side because they ran out of time on the operating table. They are only alowed so much time for the students to work on you I guess.

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10thFO, keep us posted on the surgery. Hope it goes well for you.

Allan, did that surprise you? You were only in for evaluation. If you were in for a procedure, would you have gotten a little worried? My dad used to say the best hospitals were teaching hospitals. Fresh inquesative minds with experienced teacher supervisors. Of course, dad was never in a VA hospital.

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