tdiu Bva Brown Envelope Received Today

[Charleese]

Hi All,

I posted this topic in Sucess Stories and thought I post it here as well. It seems that more people visit this forum than the Sucess Story forum. Please do not get upset I just want answers to my questions. I am editing it to add a 3rd question.

Question what kind of rating do yu think they will give my husband for neck and cervical spine that was granted as secondary to his service-connected left knee injury.?. Question: After Reading TDIU section below under Remand, Do you think they will now grant him his TDIU? Question: What's up with BVA not rating claim after granting claim?.

My husband got his Brown Envelope from the BVA today. We are very happy. My husband had originally put in one claim for neck and cervical spine injuries stating that service connection was warranted for a disability of the cervical spine as it was incurred secondary to his fall caused by his service-connected left knee condition. They granted him service connection for his neck and cervical spine as secondary to his left knee service connection injury. BVA states: "On July 30, 2008 the Veteran fell injuring his neck while getting out of a car.......... A cervical discectomy was performed and...... The most recent records from the Veteran's private physician included a December 2009 MRI report showing numerous central disc protrusions along the cervical spine with central canal narrowing. Therefore the record establishes the presence of a current cervical spine disability. The record also contains medical and lay evidence in support of a nexus between the Veteran's current cervical spine disability and the service-connected residuals of a tibia fracture. The record therefore contains two medical oopinions in favor of the claim and lay statements describing how the Veteran fell due to his left knee disability. A claim will be denied only if the preponderance of the evidence is against the claim. In this case, the evidence weighs in favor of a nexus between the Veteran's residuals from a cervical disc herniation and discectomy and his ervice-connected left knee disability. Accordifngly, the claim is granted." As many of you know his RO denied his claim stating that his primary doctor was not at scene of accident and therefore could not give his IMO that my husband's service connected left knee injury was the cause of him falling and having to undergo neck and cervical spine surgery.

However, decision does not state in it about his neck except what it states above about falling injuring his neck, etc. It also does not give a rating. What's up with that? RO will probably give a low ball rating because they probably are upset that this was granted after they denied it for so long.

Under order in decision it states: "Entiment to service connection for residuals of a cervical disc herniation and discectomy as secondary to service-connected residuals of a left tibia fracture is granted." Under Issues they list 22 issues. Under Remand they state: "The also finds that the Veteran should be afforded an additional VA examination to determine the current severity of his service-connected residuals of a left tibia fracture and left knee subluxation........"

it goes on to state: "With respect to the Veteran's claim for TDIU, the claim is inextrcably interwined with the grant of service connection for a cervical spine disability discussed abgove. After implementing the Board's grant of service connection, the RO should readjudicate the claim for TDIU. The Board notes that the Veteran's residuals of a left tibia fracture, left knee recurrent subluxation, and left knee tender scar are disagilities of a common etiology, and therefore meet the schedular criteria for agrant of TDIU under 38 C.F.R. section 4.16(a)."

"Finally, the Veteran's June 2009 notice of disagreement expressed disagreement with all the claims addessed by the RO in the March 2009 reating decision, including entitlement to service connection for hypertensive heart disease, eye retinopathy, high cholesterol, and entitlement to special monthly comepensation for loss of the use of a creative organ. These claims were not addressed in any of the May 2010 statements of the case. AS the Veteran has not been provided a statement of the case addressing all the claims included in the June 2009 notice of disagreement a remand is required for the issurance of a statement of the case on the remaining issues. Accordingly, the case is REMANDED for the following action: (1) Send the Veteran a letter that complies with 38 U.S.C.A. section 5103(a) and 38 C.F.R. section 3.159(b) including notice regarding all his claim for secondary service connection and increased rating for residuals of a left tibia fracture and left knee subluxation. (2)The Veteran should be provided a medical release form and specifically requested to execute it to authorize VA to obtain complete medical treatment records from his private primary care physician Dr. X. (3) Obtain records of treatment from Dr. X. If unsuccessful in obtaining this evidence, inform the Veteran and his representative and request them to provide the outstanding evidence. (My husband no longer has a representative, he fired DAV in June, that's why we are surprised that it list them as Representing him at BVA in this decision. Evidently DAV here did not tell Washington.) (4) Afford the Veteran a VA orthopedic examination to determine the current severity of his service-connected residuals of a left tibia fracture and left knee subluxation. The claims folders should be made available to and reviewed by the examiner, and the examiner should note such review in the report. It goes on to list from a-g what the examer should do and how it should be done. (e) states The examiner should state whether it is at least as likely as not that any currently present gout, right knee disability, or left thigh atrophy were caused or aggrevated by the Veteran's service-connected residuals of a left tibia and left knee disability. (f)The examiner should state whether it is at least as likely as not that any current lumbar spine disability was caused or aggravated by the Veteran's service-connected residuals of a left tibia fracture and left knee disability. (g) Then the examiner should opine as to whether without regard to the Veteran's age or the impact of any nonservice

-connected disabilities. It is at least as likely as not that his service-connected disabilities, and, in particular, his residuals of a left tibia fracture and cervical spine disability, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. If the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disailities, given his current skill set and edc=ucational background. (5) Issue a statement of the case to the appellant and his representative on the issues of entitlement to service connection for hypertensive heart disease, eye retinopathy, high cholesterol,and entitlement to special monthly compensation for loss of the use of a creative organ. The Veteran should also be informed of the requirements to perfect an appeal with respect to this issue. (6) Readjudicate the other claims on appeal. If the benefits sought on appeal are not fully granted the RO should issue a supplemental statement of the case before returning the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and arguments on the matters the Board has remanded. This claim must be afforded expeditions treatment...... Well we all know that the RO does not pay attention to expeditionsly and I feel these issues won't be resolved for another year or more.

In this decision they give the finding on his CUE claim which they denied, I'll give those findings in the CUE claim section later on.They list all of the 5 things you can do if you are not satisfied with their decision.

Sorry for such a long post.

[Charleese]

Hi Carlie,

? Is he SC'd for anything currently, if yes at what percentage ?

Yes he is SC for his left knee injury and tender scar. He is rated at 60% now.

? "and self reported right knee DJD." - This is not good for the claim

His orthopediac doctor wrote a nexus letter in June 2010 for his self reported right knee stating: "The patient had x-rays taken today in the office, standing films, show severe pateliofemoral arthritis and milder femorotibial arthritis. He has also patellofemoral arthritis on the right knee and primarily medial joint arthritis on the right knee." "It is felt that the patient has severe osteoarthritis, posttraumatically induced. I feel the right knee is probably within a reasonable degree of medical certainty related to the fact that he has been limping for the past 20 years and favoring the left side has caused an effect of producing arthritis on the right knee." "At the present time, the patient is unemployable since ambulation for any long periods of time bothers him and he cannot stand for a long period of time, anything longer than 20 minutes of the time and also, when he sits in one position for a while, his legs start to cramp up and bother him as well as pain in the lower back, so he has got to get up and move." The doctor also gives ROM, reflexes,etc. He states: "Both knees have crepitus. The right knee has more crepitus and pain on the medial side." Varus knee deformity on the right is noted."

I beleive the reason why the BVA didn't address the right knee issue is because the RO is addressing it and they haven't issue an SOC for it.

? "He would be also unable to perform any job which required standing or sitting for 10-15 minutes due to his NSC C and LS condition."

This to me, also does not seem good for the claim.

This is his cervical spine condition which the BVA just awarded him as secondary to his SC left knee injury.

We beleive this should get him awarded TDIU. What do you think?

[carlie]

Perhaps.

[Charleese]

Does anybody know as to which claim of my husband will they rate first (TDIU or #5 or #6 then TDIU (see original post below for other info)? [

Under remand for TDIU they state:(g) Then the examiner should opine as to whether without regard to the Veteran's age or the impact of any nonservice-connected disabilities. It is at least as likely as not that his service-connected disabilities, and, in particular, his residuals of a left tibia fracture and cervical spine disability, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation.

If the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disailities, given his current skill set and edc=ucational background.

(5) Issue a statement of the case to the appellant and his representative on the issues of entitlement to service connection for hypertensive heart disease, eye retinopathy, high cholesterol,and entitlement to special monthly compensation for loss of the use of a creative organ. The Veteran should also be informed of the requirements to perfect an appeal with respect to this issue.

(6) Readjudicate the other claims on appeal. If the benefits sought on appeal are not fully granted the RO should issue a supplemental statement of the case before returning the case to the Board, if otherwise in order.