Filing An Appeal But Have Some Questions

[bballr4567]

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This was a BDD claim that took almost 120 days. I ETS'd 29 May 09 and had all my exams and paperwork turned in 12 Mar 09.

Please ignore the left knee. This isnt a problem anymore but was included in my claim as it was a problem during active duty.

My problem is my lumbar spine and right knee.

Start with the knee. The part that worries me is that the VA predischarge doctor flat out lied. I have pain throughout my whole ROM. I get random swelling at least 2 weeks out of the month. I have weakness when climbing stairs and have to use a hand rail. Also, my Xray results were NOT normal. As long as 3 years ago Ive been getting abnormal results with edema and bony abnormalities. Recently, two weeks ago, I finally received a CT scan of my knee and it confirmed that I have arthritis consistent with a 55-60 y/o.

This is all documented through out my active duty time going all the way back to when the first injury occurred in basic.

My back is the worst though. Again, the predischarge doctor lied about the no pain, no spasms, no tenderness and so on. I certainly have all 3 of those and more as it has been documented since the original injury happened in 2006. Xray reports were NOT normal showing lumbarization of L5-S1 after I redeployed from Iraq. I have since had an MRI that showed a circumfrential bulging disc (not the minimal bulging that the VA said in the letter, I have NO IDEA where they got that) at L5. This has caused intense pain day to day and severe stiffness at night and morning. I also get random right leg spasms throughout the day. It also makes it difficult to sit down or stand for too long. Im constantly having to move to stay "comfortable". As it says, I have nerve problems on my right leg as a result. It started out small and has grown in severity and size over the past 3 years. The EMG technician reported that I do have nerve damage but the EMG is the wrong test for me as it only test if the nerve is there and intact. My problem is at my lumbar which is difficult to test.

Im planning on appealing this as its completely wrong. Im barely active (I walk with my wife) and this injury has basically limited my standards of living a lot. My worry is about the predischarge doctor and the fact that HE lied on his reports. There are YEARS of other medical sources claiming the exact opposite of this one doctor. Will this mess me up on the appeal?

Also, what exactly should I appeal on? Should I do my nerve issue as a primary condition rather than being secondary to the lumbar?

Sorry for the long post but Im at a loss here and how the VA came up with this decision. Thanks in advance for all the help!

Josh

[retiredat44]

I also have a knee problem, but a doctof took xrays and said the muscles are weak. I had phsical therapy 20 years ago for it. In the USAF the doctors could not find the problem. But at least I reported pain often. It turned out I had degenerative disc disease..

one question:

I had a six month stay in the VA hospital and I want 100% pay for it, as I am only rated at 50% for the time being until I can get my claims through for 100%. I asked my VSO about putting a claim in for the ful 100% for the hsoital stay, but was told that since I am not rated for the condition which I was hospitalized for, I cannot put a claim in for that hospital stay. That I need to first wina claim for that condition. I read that you only have one year to file for the hospital stay. I have had new claims in for the condtion before one year was up.. I then plan to file again for the 100% once I get my claims approved. I have a DRO hearing coming up very soon.

I was in the hospital for pancreas disease, but so far, I am only rated 50% for headaches.

[bballr4567]

Had a MRI on my lumbar back about 3 weeks ago. Results were discussed today.

Slight dislocation/stepdown in the L5-S1 joint. This is nothing new but it showed that there is no nerve involvement and the disc is not bulging yet but my pain is proof that the joint is unstable. Bending/flexing lower back X-ray series to come in a few months.

The big news was at L3-L4. I have arthritis of the facet joints and nerve involvement. This just shows that he numb area in my right outside thigh has been a good indicator all along that was ignored by every doctor except this one.

So, im still waiting to hear back from NOD filed last June and depending on that, this new evidence is going to go straight back to the VA. Such a long, long, stressful process.

[bballr4567]

Well, got back my NOD paperwork.

Short story, 0% is correct for my right knee chondromalacia. 10% for lumbar spine strain with facet arthritis. Im not at all happy with this and I think it all goes back to the initial claim.

Here is what the paperwork says.

What they decided:

1) Service connection for lumbar spine strain with facet arthritis is granted with an evaulation of 10 percent effective May 30, 2009. This decision is considered a full grant on appeal and no further action will be taken on this issue.

2) The initial 0 percent evaluation for right knee chondromalacia is proper.

This is for my right knee:

A noncompensable evaluation is assigned unless there is objective evidence of painful or limited motion of a major joint. A noncompensable evaluation is assigned unless there is a recurrent subluxation or lateral instability of the knee which is slight. A higher evaluation of 10 percent is not warranted unless felxion is limited to 45 degrees. A higher evaluation of 10 percent is not warranted unless extension is limited to 10 degrees.

This is for my back:

The criteria for rating diseases and injuries of the spine apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. A higher evaluation of 20 percent is not warranted unless there is muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal countor such as scoliosis, reversed lordosis, or abnormal kyphosis. A higher evaluation of 20 percent is not warranted unless there is forward flexion of the thoracolumbar spine greather than 30 degress but not greeter than 60 degrees; or, the combind range of motion of the thoracolumbar spine is not greater than 120 degrees.

They used my medical records from May 2010 but did NOT use the surgery report NOR any of the treatment records since the surgery. I still have pain on extension but no more stabbing pain. I can "run" on a treadmill but still cant do it without pain. Its just not as bad as it was.

Now, why the need for the bolded part? Yes, it was bolded on my paperwork.

Then, approx 4 weeks ago I had facet blocks on my back. It has helped me some but the main issue is still there. My back hurts all the damn time. It has been noted in every single medical report in the VA.

What gets strange is that they used an MRI from Feb 2011 to help come to that decision but did use the surgery reports from May 2010 to help that decision? Im confused by that as well.

My main problem is the fact that I can not go get an IMO. I use the VA for my treatment and cant afford to get an IMO from an outside doctor.

Where do I go from here? In the schedule of ratings it even says that (5259) Caritlage, semilunar, removal of is granted a 10 percent. Yup, had that done in May 2010.

I dunno, just lost here. Im going to schedule a meeting with my VSO here in town but Im curious as to what some of you elders think is going on here.

[Berta]

"In the schedule of ratings it even says that (5259) Caritlage, semilunar, removal of is granted a 10 percent. Yup, had that done in May 2010. "

It sounds like they missed that evidence.

I suggests before you see the VSO, to tab in your copy of your med recs, anything they overlooked that would warrant higher ratings particularly this:

"They used my medical records from May 2010 but did NOT use the surgery report NOR any of the treatment records since the surgery."

and bring them with you to the meeting so he can help word and shape the I-9 appeal for you.

Have you elected a DRO Review or the traditional appeal process yet?

"but did NOT use the surgery report NOR any of the treatment records since the surgery."

I assume you submitted these yourself or the VSO did?

[bballr4567]

Berta, this was the DRO review for the knee and back.

I have selected to have a BVA board review by video conference for the knee.

For my back, because it was listed as a lumbar spine strain on my initial claim, it is thought that I will be better claiming the Spina Bifida as a new disease because it wasnt diagnosed until late last year. A year after I ETS'd out of the Army. However, this will be detrimental to me as I will lose all back pay and my effective date will go from my ETS day to the day I file. At least in my understanding. Im in a really strange spot here.

Also, everything Ive been having done has been by the VA so they have direct access to the paperwork. Even calling and talking to them, they pulled my medical records in February which have my surgical records for my knee in them. I have no idea why they did not use the surgical reports for their decision on my 0% for the knee. It is one of the things we noted on Form 9 to support a 20% rating for my knee.

[Berta]

"I have no idea why they did not use the surgical reports for their decision on my 0% for the knee. It is one of the things we noted on Form 9 to support a 20% rating for my knee. " I am surprised the VSO didnt request a reconsideration when you got the original SOC. ????

"it is thought that I will be better claiming the Spina Bifida as a new disease because it wasnt diagnosed until late last year. A year after I ETS'd out of the Army."

I dont think that is a "better '' way because then you would need a nexus for the Spinal bifida but it manifested itself a year after you ETSed.

Also Spinal bifida is considered a congenital condition.(but Service connectable in children of Vietnam AO exposed veterans)

Edited April 7, 2011 by Berta