Injuries secodary to service connected conditions

[Lemuel]

I was diagnosed with and service connected for "traumatic brain disease" in 1985.  That nomenclature has changed under diagnostic code 8045 several times.  In 1990 I had an MVA (motor vehicle accident) and was hospitalized for two days at the West Los Angeles VA Medical and Research Center.  A neurologist diagnosed me as having an "altered state of consciousness" as a cause of the accident and reported the same to the California DMV.  I voluntarily turned in my drivers license not wanting to cause any more accidents.

My contention is that it is a clear and unmistakable error that when I claimed a secondary entitlement to service connection of spinal disc disease which resulted from a ruptured disc that occurred in the healing process of a very bad left side bruise and two fractured ribs.  The claim was denied because the adjudicator didn't find any history of a back problem in my military health record.

I believe this was because the examining physician left a note in my record referring to another patient who had a treatment record that began after I had been discharged from the Navy and before my September 1990 MVA.

What are my chances of getting a CUE decision on this?

 

[Buck52]

 Oh  Ok well just had the Name Simmons. I didn't know.

yes I understand that bout the Re-open  new & material evidence. and the evidence rest at the time of the decision for CUE

But check out this older case it has all this stuff that L has mention  and some of the way they adjudicated may be of some help for his claim.

& of course the REGULATIONS  that were Added in since this case.

This veteran had fought for years and years.

[Lemuel]

I'm having the same problem getting the dialog box to open for comment, Buck.

I'm going down Berta outtake and make comments as necessary per the record I have.

1.  Tinnitus.  Since the DRO found the tinnitus in the record and obviously used the informal claim for hearing loss to include tinnitus and since the record is repeat with continuing tinnitus although occasionally, though always reported to the audiologist by me because it interferes with hearing especially the high tones during the audiogram, it was not always in the report of the audiologist.  #2 is a factual statement, Berta.  I have to look up the references for denial and see if I can find some countering references.

The 2002 rating decision covered two periods of hospitalization.  One was from August 12, 1991 thru January 15, 1992 and  May 8, 1993 to June 10 1993.  I don't find a claim that I filed for the '91-'92 hospitalization although there is a rating decision in 1992, but do for the '93 hospitalization.   The other period in the request was for 4 months and not included in any decision either as a denial or grant.  Both had exactly the same admission and discharge diagnosis.

In the hospitalization record of '91-'92 there is a neurobehavioral testing report undated but proximal date can be implied by mention in other progress documents.  It contains observations of 4 absences of approximately 15 seconds in duration.  Seems logical to me because the absences I have usually occur in clusters and often include a complex duration of up to 45 minutes during which I respond to stimuli but otherwise just stare blankly if unstimulated. 

The EEG taken a couple of days later was reported as normal.  Another problematic EEG in the same period reports "pseudo seizures."  By definition sharp wave and spiking waves in any EEG prevent a diagnosis of "pseudo or psychogenic seizures."  This was during the study of the VA's cutting edge theory.

Although there was a period, late 1980s to mid 1990s when there was "a cutting edge theory", promoted by the VA, that sharp temporal lobe waves were only indicative of "psychogenic seizures."  Following my decision of that time the "cutting edge theory made it to neurology text books until it started being removed after the 2010 NIH/Oxford Medical report fully proving that sharp temporal lobe waves were indicative of temporal lobe seizures.  To get the case taken as a whole I believe I have to go to U S District Court.  The only purpose that I can deduce for the cutting edge theory of the VA is to reduce outlay for compensation of minor and complex seizures.

Frequently an absence is followed by an enervation that lasts for hours.  I can pump myself out with anger or forcing attention to call up adrenalin.  But if I force out then often it becomes days or weeks long and I am unable to pump up for more than a few minutes at a time.  These are periods reported in the progress notes as "lack of effect."  The absences are reported as "latencies".  In the first 1985 neurobehavioral testing they were reported as "errors that took longer than a normal time to recover to performance level."

The September MVA hospitalization diagnosed an "altered state of consciousness" as the cause of the MVA and was reported to the CA DMV for suspending my DL.  There are several EEGs reports in my record indicating abnormalities "with or without seizures".  One which should still be in my medical file which the technician took time to get me out of the absence and then called the neurologist to my side.  That report was "epileptiform spiking" with or without seizures.  The evidence of record is clear that I have seizures but have never had a clear absolute diagnosis of partial and complex partial seizures.  The closest to it is the "altered state of consciousness" diagnosis and report to the DMV plus the initiation of Tegretol.  So we get into that matter of "interpretation of the evidence" which is best handled via SF-95 Tort in a U S District Court, I believe.

 The reason for not completing the substantive appeal was the refusal, not specifically, but by omission, to give me copies of radiographic films which showed a left lateral blow out of the S1 disc which was not included in the report but would have been obvious to any layman and would be clearly consistent with a hyper extension to the right cause by being held by a seat belt into a left side T-bone strike by a 1 ton truck bumper of a Toyota Corolla station wagon.  Also refused were the requests for copies of the tracings of the EEGs to allow me to get a second opinion without providing the VA neurologist's report to see if another physician would read the negative and positive reports the same way.  At the time I was unaware that the reason for the 5 year delay getting into telemetry was because of the Yale University Medical School tying up the telemetry units with their two studies.  And I only got into the end because I fit the "cutting edge theory" the VA was trying to prove.

I continued refiling claims and requesting the denied evidence to present as new evidence second opinion reports through and including the claim July 10, 2009.  (actually I believe the date is July 9 on the claim)

The claim of July 2009 was in response to the letter from the VA required by the law implementation that was passed in 2008 granting mild and moderate TBI compensation.  I had begun my activism on getting this done, including filing a tort case in 1988, by writing letter to the VA Central Office and Regional Division Office in 1987.  Some but not all of the letters as still in my file.  Most of the court documents have been removed from my C&P file.  When I called the VA counsel's office in the Los Angeles VARO in 1995 the attorney handling my case said it went to the circular file when the case was denied.  Apparently, with it, also went copies of letters and evidence that should have been returned to my C&P file.

The VARO is supposed to state the reason they can't get FOIA requests filled by letter.  Because the FOIA requests were responded to without the requested items but with reports VARO apparently considered its obligation to assist full filled.

The lumbar and cervical spine haven't been service connected.  It is on remand.  The claim for the cervical spine is based upon new evidence.  I had a loss of sensation on the posterior of my left forearm following the left side facial blow in the service connected MVA in 1969 which gradually went away following the rupture of a cervical disc and hospitalization in Japan when a fragment of the disc settled upon the sciatic nerve in 2003.  I noticed the regaining of sensation because of being able to feel mosquito bites on my left posterior forearm in late 2003 about 3 months after the hospitalization.

The remand of the lumbar spine condition is from the secondary MVA to the "altered state of consciousness" secondary to the TBI in 1990.

By this time all readers will agree that this is a complicated case that needs an attorney but none is to be had because it is too complicated and too many quick references for denial.

The criteria for granting the rating back to the March 3, 1988 District Court filing should be enough to toll the law based upon the "General Rating Requirements" and a clear and definite presentation of the earlier claim and disagreement with the RO, DRO and BVA.

The 2002 rating decision denying service connection for the lumbar spine disorder should be a CUE because the RO and DRO did not consider it as a secondary condition which clear evidence, especially the Xray films in possession of the VA but denied me, consistent with the 1990 MVA that was secondary clearly to my organic brain syndrome variously defined under 8045-9304 as the definition changed in newer publications but originally defined as "traumatic brain disease."

Berta, I agree, I had a very good BVA judge.  She missed some items but was basically very thorough or at least as thorough as anyone could be in her time frame dealing with over 3,000 pages of documents and presuming that she didn't spend full time on my case but had clerks who weren't as competent doing much of the review.  I still have the remand in process.

I think the BVA statement Berta notes is key to the remand.  I don't see how the RO will not see certain over ride from the BVA if he does anything other than service connect and rate the spinal disc disease.  Genetic ankylosing spondylitis has been ruled out in the record.  I don't have the gene.  So it is not a pre-service condition although the onset is timely for ankylosing spondylitis.

I may have stated the "20 hours per week" at the hearing but I don't remember it that way because I usually state the CPA's remarks on his statement.  I applied for a part time job of 3 days per week intending to use as much time as it took to get the job done.  The client, Fred McMurray, (the actor) on request from Al Marsella, CPA his business manager decided to pay me for 4 days per week and give me the job.  I was able to keep up longer than any previous job but by the time of the 1990 MVA I was far behind and had to give up the job because of an added 4 hours per day commute by bus instead of by a more direct auto route.  I couldn't afford housing in the high rent Sunset Blvd area of Mr. Marsella's office.

The remarks from the 2010 exam are grossly off.  The questionnaire was translated into Japanese by a not so good translator.  The questions were ask in Japanese and translated to me by my wife and my responses were translated by my wife to the Japanese physician who was unqualified to do the examination because English was not a proficient language for him.  I have many emails to the U S Consulate and the VA re the problem of doing a neurobehavioral test of an English speaking person through a translator.  Some exaggerations and some minimizations.  (minimizations may be my anosognosic interpretations)

2015 Examiner was a PA, did not get the required over time neurobehavioral examination, and made his assessment based on one of my good days before I started Keppra.

WOW!  I missed the "...should be submitted to the Director, Compensation Service,..." until you pointed it out, Berta!  That is great.  And I have the reconsideration request in the hands of the VA GC attorney handling my SF-95 case at the same time.  Wonder if I'll be notified if it is sent to the Director and if I can get my reconsideration in his hands as I requested?  Anyone know how to contact the Director, Compensation Service?  Maybe I'll write a short simple letter to VARO pointing out both and hope they'll get it done.

I never argued any service connection of my lumbar spine to my service other than secondarily to the TBI and seizures.  But the new evidence points to the original herniation of cervical discs were from the service connected September of 1969 accident.  The Director, Compensation Service can grant all of the potential claims for earlier dating and recognition of seizures back to the 1969 accident if I can get a clear presentation of the evidence before him.  The nursing notes, personnel performance reports, VA progress note, EEG abnormal reports, etc.

The 2015 examiner didn't consider each spinal condition separately, Cervical and Lumbar.  And again ignored the claim of lumbar spine being secondary to TBI secondary seizures even though at the time he was aware I had been started a second time on seizure medication.  The record actually shows that I was on another seizure medication that was recognized for seizures in 2011.  I was taking Gabapentin for nerve pain in the early part of this century but couldn't get it in Japan so went back to Tylenol #3 and capsaicin cream.  When I was taking it, although the physician that prescribed Gabapentin said it worked best if taken regularly, I only took it during periods of time when the capsaicin cream wasn't enough.  As I recall the period I was taking Gabapentin was much better for me mentally.

SMC is out for now.  I haven't had to use a wheel chair since 2003 after a stint in hydro therapy at a necessary level instead of the 2 hours per week allowed at the VA Medical Center in DC.  Once I was able to get enough pool time in 2003 it did wonders.  I did 10 days averaging 6 to 8 hours a day moving from warm to cool water every 30 minutes while exercising in Japan and using the exercises taught to me by the DC hydro therapist who actually knew what he was doing.  After he retired, his understudy took over and did not review the patients condition but rather proceeded on a one size fits all for individuals with diminished disc space causing stenosis and individuals with spurs  but no ruptured or desiccated discs. 

I don't see an overturn in the VA system unless the Director, Compensation Service sees it the way I do.  That hearing is a system that includes frequency loss and interference from tinnitus with the claim a CUE from 1974 or not granted at all because never specifically identified as a claim by me, my VSO rep or the RO.  I have made the CUE claim and the BVA denied it.  I will submit an appeal to the CAVC.

There is a witness statement in the SSA report re: my absences followed by a period of just staring unless interrupted with some stimulation like a touch, waving of a hand in front of my face, loud shout or noise, etc.  The initiating absence wasn't noted.  But the lack of memory was noted.

The RO had the SSA report in 2002.  There is a CAVES date is before 2002.  The RO only denied being able to get the report.  The second CAVES report is dated 3/31/2010.  The denial doesn't agree with the dates stamped on the report unless you only consider the last copy sent by SSA.  There is also a denial that the SSA had the report available?  (have to find the first one that was sent in the late 1990s but wasn't as complete or portions were removed from my C&P file.)  I was granted SSDI from the MVA in 1990.  I used the SSA report as part of my evidence to provide additional evidence in the late 1990s.  (Over 4,000 documents to look through on my computer for some of these things.  Adobe DC search helps with finding some.  I just have to remember something specific to the document to look for.)

Buck, I copied the case you referenced to my to search file once I again get Lois Law open.  May be able to find it on the BVA website without going to Lois Law.  I also have a PACER account which may get it for me.

Berta, the other big difference between CUE and re-open is the date of compensation.  A CUE goes back to the original decision.  Reopening gives a date of the claim for reopening with new evidence.

Thanks all for your reading and responses.  You have been a great help.

[Berta]

"Berta, the other big difference between CUE and re-open is the date of compensation.  A CUE goes back to the original decision.  Reopening gives a date of the claim for reopening with new evidence."

Thank you for correcting me- you do know your stuff.

I had a different experience on a Re open.(2003)

The retro was based on a FTCA Offset, back to the day my husband died,for AO DMII, never diagnosed and never treated but contributing to his death.(I was seeking direct SC death instead of the 1151 death award.)I invested 4 thousand into IM0s for the claim and never regretted that.

The BVA awarded it 2009. The BVA can read.

                                   

Yes, I agree the lawyer and the BVA judge were pretty thorough. 

I could hardly reply here again minutes ago.    I will read over the whole remand again but I think it will definitely change some of your ratings.

Va never really cared much about TBI until it wa s deemed the Signature wound of the Iraq War.

But American vets have had TBIs since the Civil War.....I still wonder how much they know about TBI and also about seizure disorders.

You deal with a lot.Now the Remand will make the VA deal with a lot! 

I regret however that no one knows how long a remand will take.But please hang in there.

A few dopes from a state vet org told me my 2003 re open would never succeed. When I hear negativity I just say to myself Piss on them and I continued to seek evidence for this claim the whole time it took to be awarded.

You do have a  complex claim, but Nothing is impossible!

 

 

 

[Lemuel]

Thanks for the comment and support, Berta.  You are great.