OldJoe

The biggest issue is that the anxiety is getting the WORST of me. To the point that my wife confided in me that she has been worried that I might not come home one night and instead she'll get a call from the police... Luckily I don't think I am in danger of doing anything like that. But, I think I can understand how some (a friend ex-army) can simply give up hope. My wife took her car in and got it repaired. 2 days later he wasn't with us anymore.

Thanks Foxhound6, luckily though the examiner is my "current" Dr I see for orthopedics and I don't go through the VA. He replaced the last orthopedist who I was very pleased with, but he left to go to a new practice. (If my VSO didn't give me the wrong info, my whole claim probably would have been finished by now if I could have used my original orthopedist) Needless to say, I think I am going to get a new orthopedist. This one strikes me as a "suck-it-up-buttercup" kind of person when obviously some body-part is dangling in an odd angle. Then tells you you have nothing wrong.

Well have decided to see if Dr Bash would be willing to take my case. I had a consult with him and everything seemed to go well. I have gotten all of my records ready for him, now all I am waiting on is a reply. Does anyone know how long he takes to reply? I really don't want to pester him because I know he is busy, but at the same time my anxiety is getting the better of me.

Update: With the how convoluted my claim has gotten I honestly don't know which way is up anymore I am fairly certain I can get more for my claim but am at wits end, not to mention the anxiety isn't helping matters. The last Dr I had hoped would help me turned out to be a VA shill (not only works at the orthopedic center but also at the VA)... Kept telling that's not how it works, that there are people out there that have the same condition and no pain, that there are no studies proving left knee causes right knee failure, and how he has an injury that he isn't taking compensation for an injury he had while in the service. He wouldn't even look at my records that showed progression from when I left the service, to my first C&P. First C&P Bilateral Knee arthralgia; just through it back in my face stating that all it meant was knee pain. Um... I kinda knew that already, and that alone is enough to get 10% and connect my knee (if he wanted to) The diagnosis was shortly after I had left the military though they didn't get me in until after a year, so no presumptive conditions. I have a claim at the CAVC level and assuming that no news is good news, it is still winding its way through the system. If I win that, then my date of separation will become the effective date for my back and I would like to hope for my knees as well.

Looking through web site print offs of the old military disability made easy. Looking at knees (at different ways to proceed) I went with muscle groups. What was weird is it went full circle to how to classify knee flexion (and hip) code 5314. The description was "think of a hurdler raising his leg to jump over a hurdle". It lists code 5252 for the muscle groups or use the knee code 5261, which is the code for rating the knee based on extension. But this section deals with muscles??? Somebody want to give some insight? I think I remember it saying some where to use the one that favors the vet (but that was somewhere/time over the past 5 years) Also, the stability portion of rating knees (they gave me the standard 10%), can someone explain code 5257? When they say mention buckling is that buckling sideways (that would be SO PAINFUL) or my assumption that means as your walking along your knee up and decides to flex on its own. I have had this happen enough times that I don't leave the house without a can and I use the cane most of the time while in the house. Also, I have been diagnosed with functional neurological disorder (conversion) that affects...(you guessed it) my lower extremities (thought it was because of the joints). When I first got this diagnosis I really didn't believe it at first but thought at this point I will take anything that might help my case. This past weekend made me a firm believer; while having a serious anxiety attack I basically lose the usage of my right leg (can use say ~30 lbs hunk of useless meat) and I could barely hobble. I nearly fell three times going to get a pen and paper to write down what was happening so I could accurately describe it later. I know I have to be careful when having this write up so it can be used to rate my legs and not affect my receiving an increase for anxiety and depression (which I just put in for). Even without having an anxiety attack my legs simply don't want to work right and I have pain, sometimes more sometimes less depending on all the factors that can apply, not just anxiety. Insight and suggestions welcome...

Forgive me if my replies seem a bit off. My anxiety has really had an uptick recently and it has affected me mentally and physically. This information helps ,me get myself back under control and helps me plan my next move.

Thanks for the quick reply (makes me feel a bit less anxious). That seems to be what I think is the position (seated) the measurement should be taken from. I am wondering if there are any other methods in which they can measure extension, and if they can pick whichever method favors them if the first method fails to achieve results. Unfortunately with the VA basically outsourcing all their C&Ps it is hard to get them in a timely manner. That site was such a great site until the new owner made a pay site out of it.

What are the different ways examiners can measure RoM of knee extension? Just got results back from C&P finally (after 5 years) got my left knee connected (just need right knee now). Nurse practitioner couldn't get my knee to extend enough in the seated position to get a reading (essentially 0°) next did the flexion test from the lying down position, no problem bringing thigh up to flexion. Straightening it was a different story, struggled to get it to lay flat (0°-135° flexion, normal range). Raters denied me RoM for the lousy extension? I though extension was done from the sitting position. A previous C&P measured me from the seated position I wrote down what he said; 52° and 60° degrees (right and left knees). If I am correct that is easily 50% for each knee. What am I missing here? Is there some special procedure the they have to go through to test. I though they were supposed to pick the results that favors the vet. Not cherry pick testing methods that gives the VA the advantage. Or am I totally off base in interpretation of the evaluation? Unfortunately anxiety is getting the worst of me right now (just put in for increase). And have been diagnosed with Functional Neurological Disorder (conversion disorder), last night while putting the dog out I hobbled with my cain quite literally dragging my right leg (couldn't get it to work). Comments, questions, advice... I really could use some help right now.

Other update, when I got the BVA denial, I found out that the VA had broken apart my claims and had only gone forward with my BVA appeal for the CUE. The ongoing saga concerning my knees had stopped there. Luckily I did have another letter from a neurologist in my lock box in case they didn't denied my knees again. This one stating that my symptoms could be caused by anxiety, I do have that as well. What is strange is they seemingly ignored a previous letter from an orthopedist stating that my knees were at least as likely as not related to military service. But, that could have been because the justification may have been to weak. If that is the case I have the Dr's office notes that go into greater detail. I didn't include these at the time because the notes include ambiguous language that they could have used to reject it even though one would think that the letter would be the defining document (I didn't want to trust that). I submitted a supplemental claim with this newer letter and got scheduled for a C&P. Some worrisome questions/comments were asked/stated of me by the DR. Can I dislocate my knee on command? (of course I said no and probably had the most bizarre look on my face) Brought up the topic of Munchhausen Syndrome (my jaw hit the floor).

Well, it's been a while since I last posted. Update; Claim for CUE for an earlier effective date got shot down by the BVA (guess no surprise there). After 3 moths of searching and talking to lawyers, finally found one that after reviewing my case said that it had merit. From what I understand from the legalese that was explained to me is that, though there is evidence that suggests a CUE there was (my guess) stronger evidence for a argument based on an unadjudicated claim. To think the letter that stated they had my request for benefits dated 3 moths after I got discharged would actually be my strongest argument. I have absolutely no clue what this means for my claim for an earlier effective date given the fact I wanted to have my knees and back evaluated back then. And when they finally did get around to the examine in 1996 they diagnosed both conditions (back, arguably 20% back then when SMCs considered, and bilateral knee arthralgia 0% back then). The VA denied me because the filled out paperwork (formalized claim) was dated 1 month past the 1 year presumptive service connection. I did attempt to reopen the claim in 1998 for my back but failed to include "new material evidence" that would connect my back condition to the military (I botched that one obviously). If this will affect my effective date I have no clue. Now I wait for my lawyer's firm to take my case before the CAVC. (FINGERs & TOEs crossed)

VA is playing nasty, they won't let DAV print out contracted C&P results for vets. I have to go and file a FoIA request. That smacks of cheating in my book. If the DAV can see it then they should be able to provide it to the service member they are representing. I don't mind filling appropriate forms for it and signing documents, but that is a load of crock that they cannot provide me with that information (6 month average processing time) so I can assist in making a proper argument and provide any supporting details to counter something that may be presented in a negative manner thereby affecting the outcome of my claim.

Just got off the phone with DAV in St Louis, they suggested that I submit a letter outlining the details (as mention repeated previously) so that their counsel can use that when preparing their argument. I just need to remember not to go into excruciating detail (like I tend to do) so they can do their work and prepare the argument. Like how they can totally ignore the orthopedist's letter that directly connected the knees to the military. And how between 1996 C&P diagnosis for knees, current C&P diagnosis of degenerative arthritis of the spine (earning me 40%), letter from nurse practitioner stating about weakness in lower extremities being cause by current condition of back being related to the military has anything to do with gait. (What they used to counter the nurse practioner's letter). Um, yes, I am just as puzzled, don't have any clue where that came from, I don't remember stating/claiming/submitting anything about gait. Maybe I did (need to check her letter again), but I really don't remember stating it anywhere but here. (Wouldn't that be a trip to find out they were using this forum against us... But that is pure conjecture/tinfoil hat thinking...)

Sorry for being confusing, I have been trying to chronicle what has been happening in my claim and subsequent appeal. When I first started my I had this wonderfully [stupid] idea of trying to get the case for my back reopened by claiming secondary knee condition. Unfortunately I had difficulty finding a Dr that would conduct an IMO/IME before my VSO up and sent in my claim. Needless to say what the outcome was... Twist of events, after sitting on the rear burner for 3 years (average I hear) I finally given an appointment for a new C&P. During this C&P I show the Dr the exact SM where it stated that my condition was recurrent. End result, they grant me 40% for degenerative arthritis of my spine but deny my knees. Since then I have gotten a letter explicitly stating (one sentence) that the bilateral knee arthralgia was "at least as likely as not" related to the military. Really just based on the original diagnosis of 1996 C&P and the fact I was Security Police for 11 years (a lot of flight line walking and other "fun" military activities). So that takes what I was claiming as secondary and the knees become directly connected (really hadn't anticipated that when this whole thing started). I tried to call them out on making the mistake they made back in 1996 (my first claim where they denied me service connection thus no rating). They kindly informed me that they made the decision based on the criteria of the time. OK, they got me there, except for one thing, they never "rated" me, they denied me. So, there is still a CUE, I just called them on the wrong thing. I have other records that indicate that I did display "limited motion" in "all directions". Which is ammo for raising the rating from 0%, which is what I would have been awarded had they granted me service connection back in 1996. But they didn't and my current argument. To further complicate this twisted mess, I can find dates in my C-File that indicate that I may not have miss the one year period like they stated in my initial denial back in 1996. I did fill out paperwork after the one year period, but there are dates in my C-file that indicate that the process had started before then. To be quite frank, except for the most recent letters from the nurse practitioner (specializing in spinal conditions) and orthopedic specialist for my knees, everything is based on facts already present in my SMRs/C-file. In some ways, you could say this whole claim is one big CUE. If it wasn't for a friend from a squadron reunion saying I should go revisit my claim(s) I wouldn't have even thought of doing any of this. I would have been one of those tried and gave up long ago vets. And as I find out the "then" vs "now" aspect, this claim seems to take on more of a keystone cop aspect. No worries, it does help to hear other's trails and tribulations. It lets me know that I am not alone, that others have or are going through similar situations. You couched everything you said in the correct manner (I on the other hand haven't in others' threads and sincerely apologize). In the end of this whole process, I hope people can find bits and pieces to help them through their process. What to do, what NOT to do, things to consider, things that may not seem like much that could mean a lot, ...

The only thing that bothers me (though I do not have the opinion from the DR they got a second opinion from) is if pain can be caused by my gait being affected then how can they say my gait isn't affected by my back condition? Especially when scoliosis is noted and scoliosis does affect gate. Not to mention, I didn't think anything in my appeal mentioned gait (could be wrong need to reread). The nurse practitioner stated weakness, which is a symptom of degenerative arthritis of the spine. This should have set off all sorts of red flags requiring other examinations. Instead they simply deny it... Nothing to see here folks move along...

This is basically how I started my claim. Don't ask, long story, and I shouldn't have done what I did to try and get my back reopen via back door by claiming secondary. Though it sounded smart in my head when I started this fiasco, but it has twisted around so bad that even I get confused. I still don't know how they could turn around and grant me for my back but deny my knees as secondary. Granted I still don't know all the mumbo jumbo/entomology but I am learning. Going to be working up claim for hip next and legs if they don't in the end remand that part for another C&P so that they can get measured. My very, conservative estimate both legs less than 30 degrees flexion in each leg (20% apiece). With other measurements already taken for knees, should end up very close to 100%. But unfortunately need to go before law judge to review (hopefully no further or else we are looking at 6 year wait).

Sorry, for taking so long for getting back. Got admitted to hospital Thursday (1 AM ER visit) because my heart decided to play formula 41 racing car (A-Fib). Everything seems cool now, though get to join the beta blocker and blood thinner club... Thanks for the insight. Sounds like I have a few options on how to argue this. I do have knee pain (knee arthralgia) and hip pain (actually started recently but has been getting worse, osteopath asked if I had ever had an MRI of it, that is a bit foreboding). What is really weird (frustrating is more like it) is the dates that I have found in my records are correct, there is all the reason to believe my initial denial back in 1996 should have fallen withing the 1 year grace period for service connection. Which this whole mess kind of meaningless. My bilateral knee arthralgia should have been rated under arthritis, not being a medical professional specializing in any of this that could mean anything from 0, 10, or 20% (probably 0%). The documentation for my back from this period should have rated me anywhere between 0, 10, or 20%. Original C&P stated opinion of "slightly disabling" but service records show that during flare ups it was worse. So should be able to argue for higher. Yes, the year period for appealing that ruling (denial of service connect) has long since passed. However there mistake was one record that did demonstrate by itself that it should have been service connected without my producing a nexus letter (it was what got me my 40% rating for my back). Their denial during my "DRO" phase, now "RAMP"/"new and improved" system (now they can deny your claims 3 times as fast), that there was an error was that the rating on my back was based upon the correct rating system of the time. Should have clued in right there that something was off. But, bottom line still is that they DIDN'T rate me, they denied me service connection. Now if I had been granted service connection then my argument wouldn't mean a hill of beans. Would I have argued it back then, honestly don't know. But this is here and now not then, so that argument goes out the wind too (I hope, if I am wrong please inform me). But while on this subject, since they issued me a rating for my spine shouldn't they have measured hip and knee flexion because it deals with the spine? They did when they did my very first C&P all those years ago. Also just stumbled onto the 1998 CFR for rating. CFR-1998-title38-vol1-part4.pdf

This is a bit premature but I remember the St Louis DAV telling me that the second opinion (assuming it is the one they used to counter the nurse practitioner's opinion) stated that the current condition of my back had nothing to do with my gait. However from the denial of my first CUE they state the following: Granted I have to get all the information, but if they say that my condition may result in abnormal gait, how can they say that the condition of my back doesn't affect the gait? Which isn't what they nurse practitioner stated but that I showed signs of weakness. Which may have been the intent of the second onpinion (in which case OK, they succeeded). But doesn't this then bring up that they have identified another potential issue (my gait) that should have been rated? And thus ordered a second C&P to measure that? Or, am I just barking up the wrong tree here?

After calming down and re-reading everything. I think I still have a shot at CUE. guess I do have to thank the DRO review for dinging me on the "rating criteria at the time" aspect. The fact is they did not grant me service connection even with the medical evidence that it was a recurring issue. If they really wanted to mess with me they could have granted me the connection not the date, and then I would have had the appeal the rating of 0% based on the diagnosis of the first C&P examination. Now at least I can bring other bits of evidence into the argument that my effective date should be much earlier. Granted, purely anecdotal and most likely not admissible in the DRO appeal but it does bring up serious concerns as to when may initial case may have started. First I have my letter dated September 5, 1995 stating they were in possession of my claims for benefits (I exited the service June 30, 1995), and that they would work them as fast as they could with the current backlog. I distinctly remember thinking that at least I was in the system. We all know that the VA doesn't move very fast. There are a few instances in my records that contain dates prior to the July 31, 1996 date where they officially recognize my request for vocational rehabilitation (funny exactly one year one month beyond the presumptive service connection). Notice the July 10, 1996 date, granted still after the one year presumptive service, but makes you question how long had it been running through the system before that official "RECEIVED" stamp. In short, given 7 to 10 days turn around for anything to occur in the VA if everything happened perfectly under conditions of high backlog, someone requested my medical records before the one year period. Not to mention the form on which it was stamped seems kind of peculiar. Not really much in the line of evidence but it does create some doubt as to when I should have received an effective date. Also there is the entry that my case was a "TRAINEE CASE" this should have been a major red flag that errors could have existed when the first claim was filed over 20 years ago. Dated August 14, 1996. If I am not mistaken trainee cases can be error prone. Then there is this little gem, further adding weight that I started this whole process before the one year expiration (just noticed this). Claims don't start instantly and I hadn't applied for a VSO to be assigned (heck I didn't even know what one was back then) My C&P for my first claim was conducted back in September of 1996 which means their statement of case was later than that.

apologies for getting off track

OK folks, went from thinking I had a great shot to having absolutely no chance in light of the evidence presented here. Is there any hope or am I just plain S.O.L.

I still feel I have good grounds for my CUE and even though I don't consider what they have down to be in line with "duty to assist". But as everyone knows that line is one of the biggest jokes going. Though I probably do owe them a bit of an at-a-boy for denying my CUE. I should have picked up at the start the fact that they specified that they rated me under the correct system. Though how they could have correctly rated me when it was by my records alone that got me my 40% degenerative arthritis of the spine. Rules state that you need new evidence to reopen a claim, I didn't supply any for my back I had simply filed on a "Hail Mary" hoping I could get them to reopen my back by claiming secondary on my knees because of my back. Go figure, they denied my knees but granted me my back. Here is the SMR that should grant me at least 10% if not 20% because of noted muscle spasms (well probably not now that I saw one Item in my very first C&P) Makes guarded movements More on spasms Spasms and limited motion in all directions The only thing that may hurt me from my initial C&P exam (I guess I am pretty well screw aren't I?)

Talked to my rep and I got the very distinct feeling that the only thing I can do now is wait for my denial paperwork. Others can probably confirm this but the general impression I got was though I might get an A++ for effort being proactive and being a squeaky wheel, I am only hurting myself at this point because all the VA will do is fire off some boiler plate letter stating they just finished and are in the process of finalizing the claim/appeal. And to top it all off, I found out I messed up with my CUE. I should have taken the hint when they stated that they "correctly" rated me under the system at the time. I thought my research had been thorough enough but evidently scoliosis wasn't added to the list until 2003. It took me quite some time digging to figure out how they went about amending the rating table. It is done in dribs and drabs but they never publish a yearly update of the rating percentages. You find these updates in the federal register and there are hundreds of these updates. Luckily at the bottom of the rating percentages they list the dates the system was amended, go through the dates and find where they added what you think you should be rated as. If it is there great, if not you have to go back to the next full table. The full table I found was the 1964 percentages rating system. Even though I find to believe any of what they have done falls within the area of "duty to assist" I guess I do owe them a bit of thanks for shooting me down now before I go before the board. Now I know the correct system to argue my CUE under. I find it hard to believe that they could have "correctly" rated me when the only thing they used to use as a service connection after they had denied my claim over 20 years ago was my service records. Rules state that you have to have new and material evidence that can be used to support my claim, I didn't. Oh well, now back to the game...

If anyone is interested in figuring out what they were rated under I finally figured out how to find the information. At the bottom of the rating system you will see when the rating schedule was amended. Check the federal register for each of the dates listed until you find where your rating should have fallen under. Here is what you should be looked for under the rating schedule. For mine, I thought scoliosis had always been there, but when I went through the rating schedule date by date I founds that that had not been added until August 27, 2003.

Still think I have a good case, should have been rated under 5295 with bouts easily at the 20% range (when using the comparison for sacro-liac injury). Though whether my records will support that or not we will have to wait and see.