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Appeal Filed-what To Expect

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crabbyone

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I filed my appeal and the VA has it. What should I expect? Below is the info about my case...

14 yrs active duty-Airborne-diagnosed while on AD with Tibofibular subluxation of the left knee, and put on a permanent profile against running, marching over 5 miles and some other activities. I spent 10 more years in the Reserves and retired May 08. Filed original claim June 08. Awarded 10% for left knee strain. Award letter indicated additional compensation for instability may be considered. Recieved award Apr 09. Also recieve 10% for tinnitus and 0% for hearing loss. I had ACL replacement in July 09 due to constant problems. Filed for temp 100% in July 09 and awarded 100% temp in Sept for 1 month. I requested my file and finally got it in Mar 10. Upon review, I found the C&P Exam Dr indicated I had no limp or instability and used ibuprofin and knee brace for pain. This was wrong-I useb ibuprofin for pain, but knee brace for stability and had a pronounced limp. I also found out he indicated I had no stability problems. Where this came from, I dont know as I remember telling him I did have instability. I have also been receiving treatment for kidney stones since 2001 and my Urologist finally agreed and put in writing that he was convinced they developed while on AD. I also submitted 3 letters from my wife and 2 co-workers that attest to my limp and knee problems in a work and home environment. Below is my appeal letter.

16 April 2010

Department of Veterans Affairs

251 N Main Street

Winston Salem NC, 27155

Attention: VA File Number xxxxxxxxx

Notice of Appeal and Adjustment to Original Claim

Dear Sir/Madam,

I am appealing the decision on my claim filed 3 June 2008 for the following reasons.

1) VA Claim filed 3 June 2008 indicated that I had left knee pain and instability and that I wore a brace that helped with the instability and used Ibuprofen to treat for the pain. An evaluation and rating of 10% was given for the pain in the left knee and no rating or evaluation was given to the instability. I also demonstrated during the exam and have attached statements confirming the fact that I did have a pronounced limp due to the pain and instability of this knee.

2) VA Claim filed 9 July 2009 was approved for a temporary rating of 100% for surgery on the left knee to replace a ripped Anterior Crucial Ligament.

The Code of Federal Regulations Title 38, Section 4.71a, 5257 indicates that instability warrants a rating between 10% for slight instability and a maximum of 30% for severe instability. Considering the fact that I had to have ACL replacement due to the pain and instability of the knee, I feel that I am entitled to a rating for instability of my left knee from the date of the original claim of 3 June 2008. Even after the surgery, I still have to use a knee brace for some activities to ensure the stability of the knee. I also continue to have some pain in the knee even after the surgery.

In reference to the modification of the original claim, I want to add a claim for recurring kidney stones. Attached please find medical documents from my Urologist concerning my kidney stones and the resulting treatments.

I will be awaiting your reply.

Sincerely,

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Got the usual letter today acknowledging my claim. I am guessing they are going to consider it an ammendment since they didn't specify otherwise in this or the NOD acknowledgement. Will they send me for a C & P if I submit my IME that has a statement that says "I suspect it is exceedingly likely that he had substantial stone burdon prior to leaving the military given the situation at hand."

There are other pages to the IME that date back over 10 years and document my history of stones. I suspect I may have passed some while in the military, but I drank beer daily and never had any difficulty urinating. As I got older and quit drinking, this issue came to light and has progressed to the point of needing lithotripsy 1 time and a probable need for lithotripsy again to blast more large stones. Since I had not had the lithotripsy prior to filing my original claim, I did not include it then. After having the lithotripsy and discussing the situation with my urologist, he easily gave me the statement and discussed having the VA pay for it.

Thanks for the help!!

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  • HadIt.com Elder

First of all never ever try and guess what the VA is going to do. To me you have a couple of choices and that is for the DRO Review to help you out or wait for your claim to go to BVA and be decided much later.

My opinion is I would ask for a Hearing and try to shore up my claim with more evidence while waiting.

Good Luck

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  • HadIt.com Elder

I would ask for a DRO Hearing before I go off to the BVA for a two or three year wait and the possibility of a remand. Now you are looking at 5 years and you may be back where you started at the VARO.

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