I need some help please

[Prockey]

I'm new. Please forgive me if I am breaking protocol by creating a new post, but i looked and could not find anything specific enough to answer my question. Any help is appreciated. I'll try to be short. 

I am currently 50% rated for MDD. My first claim however was for a back injuries suffered while in service. I was a paratrooper in the 82d ABN during the gulf war and was in the Towel Stadium shooting at Ft Bragg in 1995. I was treated for psych issues while in service due to the event. I did complete my service and ETS'd honorably. I was offered 30% disability for my back during outprocessing, but told that if I accepted that I would only be able to work so many hours and with a rating that small and those few hours I "probably won't be able to support a household." It was a scare tactic used to get me to turn down the disability, and it is hurtful to think about.

I filed my first claim in 2010 because my back had gotten to a point that was seriously effecting my ability to work. That claim was denied because, 'although your current treatments and diagnosis are similar to treatments and diagnosis during service, we are choosing not to service connect them at this time. To which I appealed and was denied again. The VA has fee based me for a spinal fusion, and that seems to be some sort of acknowledgement of responsibility.

After speaking with a counselor at the DVS, I was told that I was basically asking VA employees to side against the VA and needed to get a Nexus Statement from a private Dr supporting my claim. I did this 2 years ago, whereas he used the language 'almost certainly' due to my military service as a paratrooper. That claim was also denied because, 'the statement made by a previous (not most recent) QRT Dr was longer', so they chose to refer to it. I was however, awarded a 50% rating for MDD although it should have been filed as PTSD, by this same DVS employee. He said that when it reached the QRT psychologist, that she could adjust the diagnosis. She said in turn that she did not have that ability and that he had lied to me.

Nonetheless, rather than appealing the back again, I filed for PTSD and several different back issues (Stenosis, Arthritis, Injury, etc) hoping that my issues would fall under any of those, as well as shoulder (arthritis) which I have been diagnosed and treated for through the VA. Today, I spoke with a DVS employee who told me "Congratulations! Your claim is being approved for award now and you should receive a letter in the mail within the week." I asked her what the ratings would be and she said that I had been rated 50% for PTSD and 20% for my back, both service connected. So, I should celebrate? My shoulder claim was denied because they were "choosing not to service connect at this time." A familiar statement. 

Also, isn't effectively what happened is that they simply approved the PTSD for the same rating as MDD, which will only account for the same 50% award as previous? And adding the 20% for my back to that will only elevate me to 60% total? My back is at least as impairing as my depression and PTSD. In fact, it exasperates them! I can't stand for more than a few minutes, and never without pain. I can't sit without pain. And, I am often bed ridden for days or weeks, or forced to walk with a cane- from something as simple as a small cough or sneeze. Why will they medicate and prescribe pain pills and major surgery, but not compensate? I don't want to take the flexerils, and hydrochodones, along with the mirtazapine, prazoscin, and trazodol. Now, I'm just a zombie. And, my kids don't understand why I can't play with them... or bend over to hug them. 

And why can't I get my own service medical records to help my case? Twice, I've requested them only to receive some letter about a fire... that occurred in the 70's?! I joined in the 90's! The last nail in the whole situation thus far is that my intend to file was filed on June 6. I even received a letter acknowledging it. But the date on the decision is Nov! Even after I faxed them over a copy of their own letter I was told that they would not be addressing the date at this point.

I don't know what to do at this point. Appeal with no new evidence, but simply disagreeing with the rating? I feel like I'm being run through the wringer and it is taking such a toll on me. It affects our family as we feel constantly put on hold and waiting for next year. I feel like there is a bag over my head at this point. I am not asking for the moon. I'm not making a bunch of false claims to just get some money... I just want some help and compensation for the things that are debilitating me. Can anyone offer some experience or wisdom as to how to move forward, someone who can help, what step to take next. I just want some help. Thank you in advance. God bless.

Edited March 1, 2016 by Prockey
spelling

[Navy04]

Welcome aboard and sorry for what you have gone thru my friend. I really dont know how to answer you at this time, except that is is good you are currently Service Connected. Remember you can always put in for an increase if those conditions are worse, or keep you from working. Have you filed for SSDI?  Good luck and keep us posted. God Bless!!!

[Vync]

Welcome to Hadit!

Wow, it sounds like the VA and QTC in your area is pretty jacked up. I'm sorry you have been told wrong time and again, but let's explore your situation.

Celebrate?
You can sort of celebrate, but the best option is to wait until you see it in writing or when retro $ hit the bank. If you haven't seen anything solid yet, log onto ebenefits and check the disabilities section. That might get updated before you get a letter in the mail.

VA Disability Rating Criteria
Before getting into details, I recommend you carefully read the info in this lengthy link and pay particular attention to maladies pertaining to you http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=38:1.0.1.1.5 because it is how the VA rates disabilities of all types. This will come in handy as I explain below. Even though the VA and your representative claim to be looking out for your best interests, we know that is not always the case. The VA is supposed to rate disabilities based on facts and medical opinion, but laziness and bias is part of human nature and often finds its way into the VA system.

Mental Health Ratings
Unfortunately, regardless of how many diagnosed or SC mental health issues, you will only receive one rating percentage. The VA calls it pyramiding, but veterans call it BS. Pyramiding applies to a number of situations. The rating is based the social and professional impact the symptoms have on your life. If they can separate one kind of rating from another, they will provide separate individual ratings, but in the end, the one with the higher ratings is what is used.

Records
There was a fire at the records storage facility, but you are correct that it should not matter in your case. The best thing you can do is to try to obtain copies of any and all records you can get your hands on. This includes your military personnel file, service treatment records, private medical treatment records, VA medical treatment records, and also your VA claims file (c-file). I know you have tried before, but here are some tips you might not have tried. It might take several months to get everything.

1. Request a copy of your claims file from the VA. It should also contain a copy of your service treatment records (STR's) along with any and all documentation they have on you.

2. Go to your VAMC Release of Information office and request a copy of your service treatment records (STR's) and your VAMC medical treatment records. They will tell you it will probably take a month or more. If you can get a copy of some/all of it on CD, that can be beneficial. Also, while you are there, be sure to request copies of any imaging they might have done (X-rays, CAT scans, Ultrasound, MRI's, etc...). They should be able to provide copies also on disc, but you might need to get that from a separate office at your VAMC.

3. Get copies of any non-VA medical treatment records. You might have to pay $ to get copies.

4. Get copies of the C&P exam results from QTC or the VAMC. It is important to know exactly what they said because the VA raters sometimes miss things.

5. Request a copy of your military personnel records from http://www.archives.gov/veterans/military-service-records/standard-form-180.html 

Once you get your STRs, go through everything page by page, front and back. When I did this, I scanned copies into my computer and cataloged them. You don't have to be this high tech, but what you are looking for is anything which you might be able to either file a disability claim or to help prove the VA screwed up. If you have the one off head cold, don't worry much about them unless you have sinus or breathing problems or have a lot of them.

Additionally, when you go to medical appointments, get in the habit of getting copies of them at some point. Sometimes they might not be available for a few days or a week. You can get some VAMC medical records on their myhealthevet site's Blue Button feature. You'll want to review these to look for accuracy and they might be useful for an increase claim. If the records are not accurate, you can contest them. For example, I recently was treated for my left shoulder, but the doc said it was my right shoulder. This can matter a lot later on.

Service Connection
There are two paths to service connection (SC), but they typically don't ever tell you about them until it is too late. Direct SC requires an event/injury in service, current diagnosis, and medical nexus connecting both. You don't need 100% certainty. Three types of jargon are usually adequate. 50%/50% = "as likely as not". 75% = "more likely than not" or "most likely". 100% = "caused by", "due to", etc... Generic phrases like "possibly" or "probably" are not enough, despite actual dictionary definitions. The other path is secondary SC. It's like that old song "the hip bone is connected to the thigh bone". Instead of the event/injury in service, the current SC disabilities are used instead. Not only that, but if the treatment and/or side effects of medication causes a secondary disability, you can try to file for those too.

Secondary Conditions
I mentioned this previously, but due to a lot of legal mumbo jumbo over the years, newer claims require the VA to fully develop your claim. This not only means the conditions you claimed, but also any additional secondary conditions caused by them. Yes, a medical nexus is likely required, but it is important to know. There's a lot of possible avenues here. I'm no stranger to back pain, but your back is actually considered in two segments. Cervical (neck) is one segment. Thoraco-lumbro-sacral (the rest) is the other segment. Let's say you got SC for your lower back. Do you have sciatic nerve pain shooting down one or both legs? If yes, they are supposed to consider radiculopathy/nerve pain/numbeness impairments. How about your neck? Radiculopathy/nerve pain/numbness down your arms? What about the medications you take? Muscle relaxers like flexeril and narcotic pain meds like hydrocodone might help to stave off the pain temporarily, but they and your MH medications may likely be contributing to intimacy problems. ED can be SC as SMC-K, which is about $100 more a month, but doesn't add to your combined rating. It's better than nothing. What about NSAID medications like ibuprofen, naproxen, or celebrex? Those can do a number on your digestive tract as can narcotic pain meds. This can be SC for reflux (as hiatal hernia) and IBS (constipation, the runs, etc...).

Your back
Do you have any of the paperwork showing the 30% offer for your back?

Without knowing more, in my opinion, you should probably have a rating higher than 20% for your back. It sounds like they rated you on range of motion (ROM) alone, but you can be rated for more than that criteria. Check the ratings of the spine in the link I posted above. Sometimes the VA screws up the numbers. You can also be rated for episodes of bed rest via IVDS. If memory serves, you'll probably need doctor's orders for that.

Painful motion = Limited motion
Pertaining to what you stated about pain, when the C&P doc measured your ROM, did they use a goinometer? It looks like a small plastic protractor used for measuring degrees. Some doc's might have an MD and proclaim themselves to be experts at eyeballing your ROM, but even 1 degree can make a difference. This can be a big deal because your back rating was likely based on limited ROM. However, painful motion = limited motion, which can be in your favor. Let's say the doc did the straight leg raise (SLR) test.  There is a big difference between the maximum ROM you can reach compared to when the pain starts or gets worse. If the VA rated you on max ROM instead of where the pain started, that could be what we call a low balled rating. It happens all the time, so don't let it happen to you. If you are concerned, get a goinometer or protractor and have someone measure it for you to see how it compares. Even with being in pain constantly, the VA will probably want to identify when it gets worse.

Spine Fusion
Have you had surgery yet? If so, check the effective date for SC of your back. If it is after, then they look of temporary convalescence. If you have surgery for a SC condition, they can temporarily bump your rating to 100% if you meet the criteria for a period of time. If you haven't had surgery yet, be sure to ask about this and get paperwork filed before they work on you. Additionally, regardless who does surgery, be aware that sometimes the doc you see might only be present for a couple of minutes in surgery, but the procedure is performed by a noob doc. Ask about this. If they say that will happen, it's up to you, but they should offer you to sign a release to either allow or prohibit this. Personally, I want the experienced doc working on me.

Arthritis
Were you diagnosed with arthritis while in the service and/or within 12 months of discharge?

"Choosing not to service connect at this time"
That's unusual. The VA is supposed to weigh evidence and medical opinion in the pursuit of justice. Check your decision letter - specifically the evidence and reasons and bases section. Also compare that to 

Effective Dates
This is the date which the VA considers your disability in effect. An Earlier Effective Date (EED) is a really big deal. Let's say the VA screwed up by not considering them properly. For an initial claim, it is typically either the date you got out or the date you filed, or whichever is later. If an existing SC disability got worse, you can file for an increase. If you have medical records showing it did indeed increase to a higher rating criteria within the preceding 12 calendar months, be sure to provide proof of that. The difference in an increase is you only need medical proof of the increase, but no need for a nexus unless there is something secondary to it.

If the intent to file date was June 6, the effective date should have that date. However, any retro or payment is in arrears and would be paid on July 1. The VA sometimes tries to use C&P exam dates as the effective date, which I believe is wrong.

50%+
Being at 50%, you probably already know that means the VA will not charge you any co-pays for treatment or meds at their facilities. Fee-based care can really help, as can the Choice Program if you qualify. If you live far enough, you might qualify for travel pay. Look into that.

Younger docs
If you have a younger doc, they might want to do surgery. They are at the VA for a residency or for experience. Some will not hesitate to give out a variety of meds either because they think it might help, but are also curious if it really does help.

Notice of Disagreement (NOD)/Appeal
The EED and any potential secondary conditions can be addressed via NOD. Don't do this over the phone or face to face. Do it in writing and/or on ebenefits. Any time you mail anything to the VA, do it return receipt. Never send any original copies. If you fax anything, try to keep a copy of a fax confirmation form. Keep in mind that in the eyes of the VA, you are guilty until vindicated. If the VA has a copy of a letter they said they sent, but you never received, they assume you received it. Always keep your address current. However, the reverse is not the same. If you send anything to the VA, you must prove it was received. If you can get proof that the VA received an NOD regarding your EED and it is marked "deferred", that part is ok. If not, you only have a limited time to contest it. It's in the extra forms that come with your decision letter.

Decision Review Officer (DRO)
If you keep getting jerked around by the VARO, you can file a NOD with a request for an in-person DRO hearing. A new set of eyes will look at everything, supposedly from a fresh viewpoint. It takes longer in many cases, but the difference is you will be able to sit face to face and plead your case to the DRO and actually ask questions. If you choose this route, it can take a year or two to get in, but you need to have your paperwork solid. I personally try the regular NOD route first and if that fails then try a DRO. If the DRO attempt fails, the next stop is the BVA.

Advice
You are where many others are and have been before. One key thing to realize is that sites like Hadit are here to help offer opinions and guidance. We're not necessarily experts, doctors, or lawyers, but can try to help. The VA is not supposed to provide an adversarial experience, but it can and does happen. Don't spend all your time worrying about your claims. Take it one bite at a time. Spend no more than an hour or two a day working on it. Also consider trying to find a hobby that can help you pass the time. In time your kids will grow to understand.

You served your country and did your part, but not it is time to let your country help take care of you. Yes, it's a lot of red tape, but it can be worth it. Nobody joins the military with the expectation of getting PTSD, depression, or back injuries. Even if you do reach a 100% schedular rating, as long as you are not classified as Individually Unemployable (IU), you can still work if you can/want (see below). If you become 100% P&T, there are added benefits like an ID card, CHAMPVA medical coverage and Chapter 35 GI Bill benefits for your wife and kids.

Clothing Allowance
If you have to wear a brace or use topical meds for your back which damage your clothing, file for a clothing allowance before August. The VA may try to say their braces don't damage clothing, but friction happens. Keep damaged clothing and provide pics if they deny. They are not fast about it, but every little bit counts.

Can you work?
If you are unable to work due to your SC disabilites, it might be worth considering to file for IU. Normally, the threshold is a 60% rating, but if your doc says you cannot reliably hold a job due to your SC disabilities, then it might be worth filing for IU. If it gets to a point where you might need Aid and Assistance (A&A) at home, be sure to look it up.

In addition, you might consider filing for SSDI. I am not an expert on IU or SSDI, but plenty of others here are.

 

Sorry this was so lengthy, but I hope I covered all of your questions. If you have any more questions, feel free to ask. I'll try to reply when I can. Also, lots of other great members here can also provide their perspectives, advice, and corrections if I misstated anything. It is probably best to start separate topics for individual concerns because they are easier to follow and respond to here. Also, consider double-checking the VA rules and regulations.

I hope this helps. Good luck!

[TALON II FE]

I am sorry you are going thru this.  I can relate!.  I have back issues, and I feel they were lowballed, too.  I have already been fused, and still only given 20%.  I wish I could say you are being screwed in a 'unique' way, because that would mean others weren't, but it is common, I believe.  The good thing for you is that means there will be people here who may be able to help.  Good luck!

[Prockey]

@Vync and @TALON II FE, I appreciate both of your encouragement. @Vync, that info is extremely helpful. I'll use it as a roadmap from here. Thank you.

[flores97]

Prockey, Vync and Talon gave great advice, the only thing I can add pertains to your cfile. Find out who your local congressman is, and either call or go into their office. Explain what has happened to you, and tell them you need assistance in obtaining your cfile(complete service treatment records, etc). If we are in luck, there MIGHT be a copy of the 30% rating offered for your back. File for an increase on your back, send in that copy(after making extra copies), and state that your back is MUCH WORSE than it was at that time. It would be a great idea to obtain an IMO or IME from a private doc on your back, or if you have enough medical treatment records detailing the severity of your back condition, you can obtain an IMO. (Independent medical opinion, or Independent medical examination). There are some great IMO/IME Docs around, some will allow you to mail you records to them and write you a statement by thoroughly reviewing your recs, some will want you to come in for examinations. For example, i am in the process of obtaining both an IMO from Valor Compensation Consulting, and an IME from Dr Ellis's Clinic in Oklahoma City. If you have any questions, we will be here for you. Good Luck!!

[flores97]

If you do obtain the IMO/IME, send that in with the request for increase, and the copy of the offer of 30% when you were discharging, if you can find a copy in your cfile. If you cant find a copy, i would defininitely obtain the IMO or IME and still file for an increase on your back.