degenerative arthritis Cue For Eed For Low Back Disabilities

[elcamino_77us]

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.

Edited April 26, 2015 by elcamino_77us

[elcamino_77us]

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

[63SIERRA]

the VA knows many veterans have spinal conditions and try like hell not to acknowledge them. Ivew been fighting the same battle since 96. The VAMC in Temple texas wouldnt acknowledge my conditions and the RO wouldnt service connect.

I had to go pay out of my own pocket and see an honest doctor to get to the bottom of my problems, and submit them thru myhealthevet, to force them to acknowledge my issues. It feels like the primary care docs are in minimizing care any way they can.

Everything is supposed to go thru your primary care doc, and if they are blocking you from getting MRI., seeing specialists, ect as they have done to me for a long, long time, you will be caught in a trap. Luckily I was blessed enough to have the loot to go see an impartial doc, and I told him why I was there. I wanted an accurate, comprehensive reading of the MRI from the VA (which took me 4 years of begging to get). My back is in bad shape, and will need long term care., VA knows this,, thats why they lie, deny, obsfucate, avoid, hamper, obstruct, block, and refuse care.. they dont want to pay.

[Berta]

"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."

Bill are you filing this as a Motion for Reconsideration or a CUE against the BVA's decision?

VARO CUEs are filed with the RO who made the CUE, BVA CUEs are filed against the BVA.

"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"

Great point!

And I feel much of the backlog is due to their delibertate attempts at ROs to violate this basic VA regulation.)

"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."

It seems to but I have a suggestion.......since I have filed many CUE claims....

that it pays to stick solely to the regulations they broke and how they broke them, without any personal rhetoric as to how stupid those idiots are.

BUT I also believe in making very firm legal statements.

(I should talk---I filed a CUE once via IRIS as a complaint, knowing IRIS complaints go to VA Central Office.

In the title area for what the complaint was about I wrote" What the Hell is this!"

I got a double DRO review in mere weeks (2005 )because of that but the same DRO who handled my first review and she still didnt know how to read)and again ignored my IMOs. The BVA awarded however. I would have handled that differently these days.

I filed a Motion of Cue once against the BVA...many PCs ago....

There might be a template for that here somewhere.

The Motion simply had to take a legal form:

I will try to find one and post it here.

[Berta]

This site said there is no specific BVA Motion form.
http://www.dummies.com/how-to/content/appealing-the-appeal-of-your-veterans-benefits-cla.html

I just used something like this:


Date
C File number
Berta M Simmons

V.

Jesse Brown, Secretary of the Veterans Administration

Motion of Clear and Unmistakable Error regarding a 1996 BVA decision.

And then I explained what I felt the CUE was. They had failed to consider my husband's PTSD as a factor in his death.

But I had subsequently won DIC under 1151 at the RO level and failed to tell the BVA.(I thought the DAV, my POA at time withdrew that appeal but they didnt)They denied the CUE but made this statement:

. " In the January 1998 rating, VA determined
that after a thorough review of the veteran’s medical
records, it was shown that he was receiving medical care at
the VA Medical Centers in Bath and Syracuse, NY. The report
concluded that there were multiple deviations from the usual
standards of care, including his hospitalization for stroke,
the complaints of dizziness that led up to his
hospitalizations, and his inadequately treated blood
pressure. All of these deviations, according to the report,
hastened to cause the veteran’s death. However, none of
these deviations from the standard of care included treatment
for the veteran’s PTSD. Although there has not been
presented a well-grounded claim for service connection for
the cause of the veteran’s death, since the appellant has
been granted DIC benefits pursuant to 38 U.S.C.A. § 1151, she
could not also receive a duplication of these benefits
pursuant to 38 U.S.C.A. § 1310 for the cause of the veteran’s
death."

Then in another BVA case I had (gee I forgot I had two )the BVA stated: that if I ever succeeded on direct service connected death,as survivor of a veteran , then VA would have to refund to me the high five figure FTCA offset I had agreed to with the OGC.,when my 1151 DIC became SC DIC.

(Most FTCAs involve a complete offset but I negotiated with General Counsel myself for a partial offset. This is one big reason why, unless you have a legal background yourself and know FTCA case law, you need to have a lawyer for FTCA cases.)



I used this older BVA decision I got, highlighting that part as to the offset when I won my DMII AO death claim. The RO still refused to pay me the offset and would not consider the BVA decision as evidence. So I contacted Regional Counsel (who got the VA to CUE itself when they took too much money from me as an offset years ago) but he would not get involved with this new issue I had.

I became pretty angry and called the OGC and raised some hell and some top gun at OGC called my VARO and then the check was 'in the mail'.

It pays to SAVE those BVA decisions and read them carefully because they can become evidence for any future claims we have.

[elcamino_77us]

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

Edited May 2, 2015 by elcamino_77us

[elcamino_77us]

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.