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kluender
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Posts posted by kluender
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Here's a link to do a BVA search for your research.
Do remember BVA decisions do not set precedent,
but by studying these decisions you will surely gain information
on these conditions and how the ratings can be applied.
Do remember ordinarily your claim and evidence will not be exact to these cases.
Just put your conditions into the search section and check all years
or a specific year you want to check.
You will probably be given several links of BVA cases to study
what was granted or denied on what bases and what rules
and regs were applied.
Hope this helps a vet.
carlie
Thanks Carlie. That helps alot.
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If your award is less than 1 year old than file a notice of disagreement. From what you describe you have issues with your ankles as well as your feet which can be rated seperately. Have your private doctor get you refered to podietry and ortho (for ankles) to establish new evidence and re-open the claim if it is over 1 year old.
Good luck,
Bergie
Thanks for replying Bergie. What confuses me about foot claim awards is that I often see for example, "plantar fasciitis with pes planus" is awarded at such and such %. I'm wondering when the decision is awarded this way if VA is saying that separate awards for plantar fasciitis, pes planus or heel spurs is pyramiding?
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I need advice on how to proceed with a right foot disability claim. Last year I requested service connection for plantar fasciitis. The decision came back 10% for metatarsalgia.
There's a notation in my smr from an X-ray report that states "relatively flat foot, but still has a little maintaining of her arch when she stands on it". I didn't have flat feet when I entered the Army.
I suffered a grade II ankle sprain during service (the only time I went on sick call for my right ankle) when I fell off a curb. I also complained about a left ankle sprain. Actually, I had more ankle sprains, but failed to go on sick call except these two times. I did tell the medic and doctor that my ankles were "weak". Since I retired February 1999, I've continued to have episodes where I almost fall when my right ankle turns outwards, especially if I walk on uneven surfaces such as cobblestone. I believe this is called "inversion".
VA has the following annotations in my records: chronic plantar fasciitis, equinus deformity, flat feet, pain in right arch, excessive pronation, bilateral plantar calcaneal spurs, pain on bottom of both heels, gastroc equinas, hammertoes 4 and 5 bilateral, increased coldness on rt vs left foot, weak FHL muscle, ambulation with a cane, abulation with a walker (recent), progressive rt foot pain and "custom orthotics didn't help her".
I just read John999's post today that said VA will only grant 1 disability for the foot. Since I've been rated for metatarsalgia which only goes up to 10% what can I do?
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Lisinopril is really bad news if you have a cough. You should talk to the Doc about it. Its cheap so the VA likes to give it.
Thanks Pete. I'll ask my VA doctor if she can prescribe something different.
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Hello Teac,,,,,,I just wanted to say that I too have a chronic cough. It is not a heavy cough ,,,but like hard clearing of throat but it goes on all day, with sputem production. I am on Benzonatate(sp) and have been for years. I am also diagnosed with restricted/obstructive lung disease. My military medical records show Upper Respiratory Infections, (6) , Flu like symptoms (1), Streep Throat (1) and Ear Infection with forced drainage. Though my problems started there at Fort Greely , the cough came about a yr or so later. I do not smoke......Though not just unbearable , it is annoying and certainly not normal. I probably can relate to what Klue is going thru. My cough with sputem production has been treated ever since and well documented for the past 10 years at the VA. Hope this helps. God Bless, NEVER GIVE UP. C.C.
Thanks C.C. for understanding what I'm going through. It's a very embarrassing and annoying problem. My problem is so bad that I've developed scar tissue and have problems swallowing. On many occasions I've literally thought that I was choking to death because I ate something as simple as rice. I've read that this can lead to cancer of the esophagus. I'm taking note of every suggestion you've given me. Please believe that I'm not making this up.
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Do you take lisinopril. It gave me a chraonic cough that was fixed by prescribing another medication.
I'm taking lisinopril, but didn't begin taking it until 2004. My cough began around 1979.
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kluender-
Your going to have to do some foot work here and find the underline reason for your chronic coughing. The doctors will guess and remark one way or the other, but that does you no good for this claim. Fine the underlined condition and you have a claim if it is chronic & disabling. Off the top of my head the reasons for chronic coughing could be anything from asthma to cancer, so it might be good for you to sort this out regardless of a VA claim.
Poolguy, my annual exam is this Thursday at VA. I'll ask my PCM to refer me to the appropriate specialist. Thanks.
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Capt., thanks for your reply and words of encouragement. I provided proof that I visited military doctors 19 times beginning in 1979. Most of this was ignored. I'm going to enclose the list along with a copy of each recorded visit like I did the first time. I was a 92Y (supply) and wasn't around a lot of chemicals. I'll take your advice and work on perfecting the details you mentioned. Thanks again.
Hello Klue....I am looking at some of what the VA asked for in the VCAA letter inwhich they asked you for any additional evidence showing your condition existed during military. This seems to be the VA's real gripe. Can you produce a SMR or Clinic , military hospital record of any of your complaints? Can you get perhaps 2 buddy statements stating you were sick and give what they noticed on a statement? Were you given any medications while in the service that would coloborate your illness/complaints? I would definetly get a good IMO (Independent Medical Opinion) about your in service connection to your disease.It will definitely help your claim. What was your MOS and was it related to being around toxic substances and can you prove that? Your case is not unattainable and unwinnable. You just need some minor adjustments.It sounds that you just need to fill in the dots and put it forth in a way that closes the VA door to denial. Make it simple , to the point and accurate. Make sure all of those ghost doors are open and none of them shut. I to am going thru this and what I have given you is really the only way that the VA is going to look at it and give you the benefit of a doubt. Try posting again and let us know what you came up with on some of these minor setbacks. Take Care , God Bless, and Remember......NEVER GIVE UP.....C.C. -
I'm not sure which way to go with this claim. I'd appreciate any and all help. This is how my decision reads from a request for chronic cough dated April 22, 2008:
Service connection for acute respiratory condition (claimed as chronic cough) is denied.
Copies of service treatment records provided by you showed initial treatment for complaints of coughing in March 1987. During this time, you denied having any symptoms of an upper respiratory infection, fever, sweeats or allergies. Assessment provided was a cough possibly due to allergies or a viral infection. Medication was prescribed for relief. You continued to submit complaints of coughing and the examiner assessed your condition as an upper respiratory infection. X-rays taken in July 1987 were normal. No other treatment is shown. You also noted a history of coughing for one year in duration during your retirement examination conducted on October 26, 1998. No chronic disability is shown for VA purposes. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing.
The medical evidence provided by you to include treatment records from ____VA Medical Center were also reviewed and considered. Although treatment is shown for complaints of acute respiratory condition due to pneumonia and a sinus infection, no chronic condition is shown for VA purposes.
In our Veterans Claims Assistance Act (VCAA) letter dated April 28, 2008, we asked you to send us evidence showing your condition existed from military to present. As of this date, no additional evidence has been received relating to this fact. On June 26, 2008, we received your VCAA Notice Response indicating you had no other information or evidence to give us to substantiate your claim and that we should decide your claim as soon as possible.
Service connection may be granted for a disability which began in military service or was caused by some event or experience in service.
A disability which began in service or was caused by some event in service must be considered "chronic" before service connection can be granted. Although there is a record of treatment in service for acute respiratory condition (claimed as chronic cough), no permanent residual or chronic disability subject to service connection is shown by the service treatment records or demonstrated by evidence following service. Therefore, service connection for acute respiratory condition (claimed as chronic) as denied.
What I submitted with my claim was a list detailing 19 visits to military doctors for coughs with throat clearing beginning in 1979 thru February 2008. During some of these visits I had bronchitis, pneumonia, and I believe acute sinusitis. I provided copies of each doctor visit. I suffer from daily constant coughing and throat clearing so bad that this is the way my husband and children find me in stores. Also, when in public I constantly get stares from strangers who think I'm being rude because of constant throat clearing. The coughs also cause headaches. I've also been diagnosed with reflux for the past 3 years. A military doctory told me about 2 years ago that my cough is caused by my reflux, but I can feel constant drainage from my sinuses. My ex-allergist said 2 years ago that she didn't see any drainage and felt my cough might be caused by reflux. The problem is that I wasn't diagnosed with reflux while in the Army when all this started. I am service connected for allergic rhinitis/hives at 0%. At one time I had allergy shots. My sinus scan only shows slight abnormality. I'm not service connected for sinusitis, but my military records reflect times during doctor visits that sinusitis was suspected but ruled out.
Thanks
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Thanks dansdad. I'll always fight for "my Vet"!
sorry the para is (:D(1).....the smiley face goot in the way -
He wasn't in the military when the operation was performed. He was a military retiree who received medical care at Fort Jackson.
I must be missing something because I don't see a connection to the VA. I don't know what "retired veteran" means. If there is no connection to the VA, how would 1151 be relevant?Why was your husband receiving medical care at a military hospital? If he was in the military at the time of the surgery, he cannot sue because of the Feres doctrine.
What am I missing here?
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Purple, the operation was for my husband who is also a retired veteran. He wasn't referred by VAMC. As I said below, the statute of limitations is over for him. He had an operation to remove a cataract from his right eye 4 years ago. Now, he can't open his eye completely because of muscle damage and he has almost constant iritis inflamation. Also, he can't see clearly. He has no peripheral vision in his eye. It appears that this condition will exist the rest of his life. Fort Jackson has prescribed eye drops that he uses twice a day since the operation, but this doesn't help much at all. The operation was performed at Fort Jackson by an Army Major.
Thanks for your concern.
Sorry that this happened to you.......I have a question though...did the VAMC send you to this military hosp on a referral? If so, then could the VAMC be held responsible in a roundabout way?????
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Berta and Pete thanks for the information. I'm just hoping that the 1151 can be filed against military hospitals that don't fall under VA such as Fort Jackson.
Pete I met you at Prodigy around the time Rod was in the Gardner moratorium and I ended up in it after he died.Gardner helped some vets but closed the door for many vets too-
Prior to Gardner there was a no fault idea to some Section 1151 claims-which were awarded as secondarys with a 'no fault' concept but after Gardner decision - a vet must prove negligence-
FTCA -Gardner didnt matter to FTCA claims however-it had nothing to do with ny FTCA at all- the VA deliberately held that up- not the moratorium-
But Gardner would only help this vet if they are filing a Section 1151 claim.
No statute of limits on Section 1151 claims-
I dont know if there are any Sec 1151 claims filed against military Hosps but the BVA web site might have some.
Pete I met you at Prodigy around the time Rod was in the Gardner moratorium and I ended up in it after he died.
Gardner helped some vets but closed the door for many vets too-
Prior to Gardner there was a no fault idea to some Section 1151 claims-which were awarded as secondarys with a 'no fault' concept but after Gardner decision - a vet must prove negligence-
FTCA -Gardner didnt matter to FTCA claims however-it had nothing to do with ny FTCA at all- the VA deliberately held that up- not the moratorium-
But Gardner would only help this vet if they are filing a Section 1151 claim.
No statute of limits on Section 1151 claims-
I dont know if there are any Sec 1151 claims filed against military Hosps but the BVA web site might have some.
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Thanks Pete.
quote name='Pete53' date='Aug 16 2008, 10:58 PM' post='102851']
I think that a claim against the VA is still possible in this particular case.
Good Luck
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Can a claim be filed for an injury due to hospital treatment if the hospital isn't a VA hospital, but is a military hospital (Fort Jackson, Moncrief)? Also, the statute of limitations has passed which prevents the person from filing a Federal Tort Claim.
Thanks
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I know this is long, but can someone please read VA's “Reason for Decision” for an “evaluation of mechanical low back pain with arthritis and herniated disk, L5-S1, with radicular symptoms which is currently evaluated as 10 percent disabling.”
"(Place where I work) medical certification form completed by your treating physician notes no work for approximately six to eight weeks with no severe postoperative residuals reported.
Addendum to VA spinal examination in February 2004 notes that it is at least as likely as not that your low back pain and arthritis in the findings of your MRI are directly related to your low back injury during service.
The evaluation of mechanical low back pain with arthritis and herniated disk,
L5-S1, with radicular symptoms is increased to 40 percent disabling based on VA examination which revealed forward flexion of the lumbar spine limited from 0 to 20 degrees with radicular symptoms. It is noted that current non-compensable radicular symptoms are included in the evaluation of your low back condition. Neurological abnormalities due to intervertebral disc syndrome may be assigned a separate evaluation under the appropriate diagnostic code. A compensable neurological evaluation due to intervertebral disc syndrome would include definitive clinical findings which demonstrate mild paralysis of the involved nerve root. 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 residuals of injury or disease. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A higher
evaluation is not assigned unless there is unfavorable ankylosis of the entire thoracolumbar spine or evidence shows incapacitating episodes having a total duration of at least 6 weeks during the past 12 months due to intervertebral disc syndrome. The effective date of the increased evaluation is February 28, 2004, the earliest date clinical evidence shows objective findings of a worsening of your low back condition. An evaluation of 100 percent has been assigned effective March 1, 2004 based on the need for surgical or other treatment necessitating convalescence. A 40 percent evaluation is assigned from May 1, 2004, the first of the month following a period of convalescence."
This has been nagging me for a long time. I’m wandering if I should put in a claim since I had surgery 2 times in 2004. Both times after surgery the doctor who treated me noted no work for 6 weeks which would be a total of 12 weeks. The second time was 6 months after the above decision. Also, I was given 100% temporary disability both times.
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I'm mildly surprised that VA will rate plantar facitis as a disability. I guess there's cases where it leads to other problems, but by itself it's not much of a issue other than it can be very painful if arch supportsd are not used. When I was diagnosed I was told that it was a temporary condition that would disappear in about a year, with or without treatment. I elected to buy an arch support that minimized the pain and used it for about six months. Walked 18 holes twice a week throughout that time and haven't had any further symptoms. (Knocking on wood).
jhfleet, arch supports haven't done me much good. I've had this condition since 1997 when I was still active Army and it has progressively gotten worse. Sometimes I can barely walk. Also, VA x-rays from 1998 show bone spurs.
Everyone, thanks for your input.
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I have bilateral plantar fascitis and the VA gave me a rating of 10% for this but clasisfied it as Claw Foot. I also have sciatic isues bilateraly @ 10% each I am requesting a review of additional information for an increase. Good luck on your claim.
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I've been rated 20% for incomplete paralysis of the sciatica nerve below the right knee. I've recently submitted a claim for plantar fascitis of the right foot. Today I found this entry in CFR 38:
§4.55 Principles of combined ratings for muscle injuries.
(a) A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions.
Does this mean that my claim for plantar fascitis will be rejected?
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From what I've found so far, Chapter 35 is not a benefit for 100% schedular claimants unless VA declares that 100% of the disabilities are permanent. Is this correct?
Thanks
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Thanks for clearing this up Ricky.
In the cases provided by you and Ruff, it appears that this is all the evidence in support of the claim. If this is correct then the Relative Equipoise (benefit of the doubt) as Berta has provided does not exist for all evidence in support of the claim is favorable. The only time the benefit of the doubt comes into play is when there is a balance of evidence in support of and against a claim. In this situation the benefit of the doubt comes into play and the veteran is supposed to win all such claims.Now - when such a claim is in front of the VA (RO level) it is to the veterans advantage to remind the VA of this law. Although the VA at all levels is supposed to automatically apply this law we all know that 99 percent of the time raters and DRO's do not comply with this and will deny your claim if there is even a hint of negative evidence available. You must also keep in mind what the term Relative Equipoise means. It does not mean the VA has two pieces of negative evidence and the veteran has two pieces of positive evidence. Relative Equipoise in VA terms (or legal terms) does not mean 2+2=4. It comes down to the weight that is applied to the evidence. This is where the problems begin and the system is fouled. The rater, a lay person just as you or I, is afforded the power to assign the weight to be applied to each piece of evidence. He/she can say that a 7 min visit with a 1 year resident or worse a 1st year Nurse Practioner far out weighs the IMO submitted by your 35 year board certified neuro doc and that is that - at least until you get to the BVA where common sense and law is actually used.
Bottom line to all of my ranting is that if you know the VA has negative evidence or evidence that could be considered negative then yes at the rater/DRO level I would remind them of the benefit of the doubt (more so with a DRO than a rater). However, don't let it blow your mind if you get back a decision that says benefit of the doubt does not apply. Just let it go and use a very strongly worded argument at the BVA level. The difference between the RO and the BVA is that at the BVA, the hearing officer is an attorney who is backed by a slew of support attorneys. These guys, good or bad, eat, breath and drink the law daily. The VA disability system is based upon law so it is right down their alley. Where as at the RO level you are stuck with lay people who are no better than you or I, however, they feel as though they are some kind of famous doclaws (doctors and lawyers combined).
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In the cases provided by you and Ruff, it appears that this is all the evidence in support of the claim. If this is correct then the Relative Equipoise (benefit of the doubt) as Berta has provided does not exist for all evidence in support of the claim is favorable. The only time the benefit of the doubt comes into play is when there is a balance of evidence in support of and against a claim. In this situation the benefit of the doubt comes into play and the veteran is supposed to win all such claims.
Now - when such a claim is in front of the VA (RO level) it is to the veterans advantage to remind the VA of this law. Although the VA at all levels is supposed to automatically apply this law we all know that 99 percent of the time raters and DRO's do not comply with this and will deny your claim if there is even a hint of negative evidence available. You must also keep in mind what the term Relative Equipoise means. It does not mean the VA has two pieces of negative evidence and the veteran has two pieces of positive evidence. Relative Equipoise in VA terms (or legal terms) does not mean 2+2=4. It comes down to the weight that is applied to the evidence. This is where the problems begin and the system is fouled. The rater, a lay person just as you or I, is afforded the power to assign the weight to be applied to each piece of evidence. He/she can say that a 7 min visit with a 1 year resident or worse a 1st year Nurse Practioner far out weighs the IMO submitted by your 35 year board certified neuro doc and that is that - at least until you get to the BVA where common sense and law is actually used.
Bottom line to all of my ranting is that if you know the VA has negative evidence or evidence that could be considered negative then yes at the rater/DRO level I would remind them of the benefit of the doubt (more so with a DRO than a rater). However, don't let it blow your mind if you get back a decision that says benefit of the doubt does not apply. Just let it go and use a very strongly worded argument at the BVA level. The difference between the RO and the BVA is that at the BVA, the hearing officer is an attorney who is backed by a slew of support attorneys. These guys, good or bad, eat, breath and drink the law daily. The VA disability system is based upon law so it is right down their alley. Where as at the RO level you are stuck with lay people who are no better than you or I, however, they feel as though they are some kind of famous doclaws (doctors and lawyers combined).
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I have the same question as Ruffcreek(hope you don't mind Ruffcreek). I have an appeal that is currently awaiting review of medical records by the DRO. My C&P report states "at least as likely as not" just as Ruffcreek's does. Also, the examiner wrote a very thorough and favorable report stating that my disabilities are service connected. Is this report enough are do you think I should have had another exam by a private doctor?
Foot Problems
in VA Disability Claims Research
Posted
Jim, please let us know as soon as you receive the decision. I haven't put my claim in yet.