ken1939

Iracx2, Regarding time frames, here is how my latest venture with VA went. I had a BVA hearing on 1/8/12. There were four issues to be resolved. The BVA adjudicated the cllaim and wrote a decision dated 4/11/12. The decision was to award benefits for two of the issues and to remand the other two. The file was then transferred to the Baltimore RO, (we thought for a determination of benefit amounts for the the two awarded issues - not so). The Baltimore RO held the file for 2 months and nobody knows why, then shipped the file back to the BVA. The BVA held the file untill 10/2012 and nobody knows why. The BVA then shipped the file back to the RO. The case was assigned to a DRO on 10/5/2012 to complete the process. Here is where the time line comes in: My DAV rep told me that the DRO has 180 days from 10/5/2012 to complete the case. I have no idea where this time line came from, but this is what I was told. This means my case should be completed on or before 4/3/2013. I don't believe this. All I can do is pass along what I was told. It has been my experience that the DRO's make up their own rules. I don't mean that in a sarcastic way. I have been dealing with them for 12 years and this is just the way it is.

Thanks all. I have to do a lot of research based on the info you provided. I'll check back after I think it through. I do have a vetrep. DAV represents me, but not very well. I honestly don't mean any disrespect to DAV, maybe their workload is overwhelming. When I had my BVA hearing in Washington (Dec 2007) I had to ask the DAV to please just get out of my way. I believe they simply thought I had no chance of proving a nexus back to 1961. I insisted at the hearing that I present my own case which I did and I won. In 2008, at the suggestion from DAV, I filed for secondary conditions. It seemed like a good idea but, again, I found the DAV to be a hindrance rather than a help. I was denied because I did a poor job of developing my claim. Answers to the questions I am asking in this forum should have been provided by DAV without being asked. They have never said: This is how you should proceed, this is the evidence you will need and this is how you present it.

Thanks Berta. It looks like we are both posting at the same time. I found your web site and it is loaded with cases where the diagnosis is radiculopathy, even cases including the medical definition as a 'disease of the nerve root'. The DRO didn't need to address the IMO or tests or anything else. Since the diagnosis is radiculopathy the case is denied for " the medical evidence of record fails to show that a chronic disability has been clinically diagnosed. It is noted that symptoms (to include pain and radiculopathy) are not disabilities and consequently, are not subject to service connection." The first denial simply stated that.it was being denied "because the medical evidence of record fails to show that this disability has been clinically diagnosed." Apparently this DRO makes up his own rules as to what a disability is.

I see where my link isn't right. Even though I copy and paste, it looks right until I try to post it. Anyway, it is 'search.uscourts.cavc.gov/search/'

I might have answered my own question. As soon as I searched on opinions instead of decisions I hit the mother load. The web site is: http://search.uscourts.cavc.gov/search/

I have 2 issues: Issue 1) Headaches diagnosed as tension headaches or muscle contraction headaches secondary to SC cervical DDD. The headaches are SC at 0%. I am appealing for a higher rating. Issue 2) Lower extremity pain diagnosed as Radiculopathy secondary to SC Lumbar DDD. Denied. I am appealing for SC at 30%. For issue number 1 I have found favorable BVA decisions matching my headache diagnosis where the severity and frequency are the same. The headaches are not migraine. I understand now that the BVA decisions do not set a precedent and I need to pursue a different strategy. However, issue number 2 is a different matter. Three C and P exams have a diagnosis of Radiculopathy and one IMO does the same along with an EMG and an MRI to back them up. The DRO says Radiculopathy is a symptom not a condition. I have been denied twice for this reason and have now appealed to the BVA. It seems to me that I have plenty of medical evidence to support my claim but the sticking point is the one word, Radiculopathy. I found literally hundreds of BVA cases decided on Radiculopathy, some granted, some denied and some remanded. I could not find one single case where it was remanded or denied because Radiculopathy is a symptom not a condition. I felt certain that with all those BVA cases on my side issue number 2 would be a no brainer. As usual, though, that does not appear to be the case. As of this writing I am trying to find a data base of the CAVC decisions that do set precedents. Is there such a data base?

Good answer Broncovet. I will do some more research following your advice. Thanks.

I filed a form 9 for a BVA hearing. I am claiming headaches secondary to SC cervical DDD and also for lower extremity pain secondary to SC Lumbar DDD. My headache diagnosis is tension headaches and contraction headaches SC at 0 %. I am appealing the rating and find many favorable BVA decisions where the diagnosis is not migraine and nearly duplicate my situation The ratings are as much as 30%. My lower extremity diagnosis is radiculopathy, denied because radiculopathy is a symptom not a condition. I have found literally hundreds of BVA decisions where the diagnosis is radiculopathy and not one was denied or remanded because of the diagnosis of radiculopathy. I have read somewhere in a forum that BVA decisions cannot set a precedent. But if there are many, many of these decisions, will this be enough to prove my claim?

J EMG "Conclusion The above study shows electrophysiologic evidence consistant with a left L5 radiculopathy." MRI "The MRI scan of the lumbosacral spine shows anterolishesis of L5 on S1 with moderate bilateral L5 neural foraminal narrowing as well as degenerative disk disease elsewhere." Ken

Thank you J. From my own research I had come to that conclusion but after being told twice that I was wrong I began to wonder. The exact words in my second denial notice are: " Service connection for nerve pain in bilateral lower extremities is denied because the medical evidence of record fails to show that a chronic disability has been clinically diagnosed. It is noted that symptoms (to include pain and radiculopathy) are not disabilities and consequenly, are not subject to service connection." My first denial notice simply stated that a chronic disability had not been clinically diagnosed without mentioning radiculopathy. Then when I met with DRO and asked for an explanation he said radiculopathy is a symtom not a disability. He then sent me back to the same C& P examiner for the same diagnosis of radiculopathy. That got it off his desk and delayed the process for a couple of months. My POA is the DAV. I tried working with them when I first began this journey for SC for DDD. Although the DAV is POA of record I found I did much better without them. I went to the BVA in washington a couple of years ago and presented my own case to prove SC back to 1960. The advice from DAV was that it probably couldn't be done. They also advised me not to worry about the percentage until I proved SC. Big mistake. I just got your second message. Thanks for the additional info. Ken

I have a diagnosis of radiculopathy from 3 different C & P exams as well as an IMO with an EMG and an MRI to back it up. Claim denied because radiculopathy is a symtom not a condition. I researched literally hundreds of BVA cases and found not one where a claim was denied or remanded because the diagnosis was radiculopathy. On the contrary, I found dozens of cases where the veteran received as much as 40% for radiculopathy. Has anyone else had this experience? I had an informal hearing with the DRO when I appealed my first denial (what a waste of time that was) and all he did was schedule me for another exam with the same doctor and got the same results. I am claiming pain in the lower extremities secondary to SC Lumbar DDD (currently at 20%). I have requested a BVA hearing. Thanks.

Thanks Carlie, It helps. The more I look at decisions and opinions the better prepared I am to come up with my own definition that fits my circumstances. Once I decide what needs to be said I will have to convince the doctor to cooperate and use the VA terminology. By the way, I got an answer from IRIS where my question was what is the definition of a "characteristic prostrating attack" and where is this definition referenced in the regs. The answer was to refer me to the rating table which tells me nothing. It tells me how to rate it if I have it but it doesn't tell me what it is. In other words, a "characteristic prostrating attack" is a "characteristic prostrating attack." Just take our word for it. Ken

Thank you rentalguy1, I am interested in VA literature to prove headaches as a secondary condition. My current 10% SC for the neck is for "degenerative disease of the cervical spine". I guess I could assume that Intervertebral Disc Syndrome (IVDS) is the same thing but I have learned not to assume anything. I am also SC for a secondary condition, "headaches associated with degenerative disease cervical spine". The VA examiner diagnosis was actualy "Muscle Contraction Headaches". My rating is 0% because of no "characteristic prostrating attacks" averaging 1 every 2 months over the last several months. I intend to appeal this but I need to know exactly what it is that I am appealing. I deal with headaches almost daily but about once every 2 to 3 weeks I have to lie down until the headache goes away. I have an appointment with a private neurologist on 1/29/09 and hopefully I can suggest the right wording for his report that the VA will accept. I know prostrating attack is important but I'm not sure it is in the doctor's vocabulary. I have searched medical dictionaries and other medical journals and have yet to find a reference to that phrase. The only place it shows up is on VA web sites and there is never a definition or a reference to VA regs. Your definition is as good as I've seen but I never get that wiped out. Thanks again, I really appreciate your input.

Can anyone quote the exact reference in VA regulations where "characteristic prostrating attacks" is defined? I thought I had seen it somewhere in the forums but can't find it now. I have found many references to it but never a real definition. The best I could ever come up with is that a "characteristic prostrating attack" is a "characteristic prostrating attack". And I have read a lot of interpretations as to what that means but not the official VA definition. I sent an IRIS asking this question but haven't gotten an answer. Thank you. Ken1939

Betty, That would be nice but the retro was back to date claim filed, July 2002. B) Ken

I got 10% neck, 10% low back and 10% Tinnitus SC 1961. I should have shared this earlier but better late than never. My claim was approved by the BVA on January 7, 2008. I did all of the work myself. I tried to get help from the American Legion, big letdown there. I went to DAV and at least someone was willing to talk to me and I gave them POA. Other than passing along some paperwork DAV was of little use and actualy hindered the development of my claim. I was denied twice and the VA lost all of my paperwork at least once and some of it as much as 4 times. I had very little evidence to support my claim. I did have a military record of my injury but I did not seek treatment because I was afraid of losing my flight pay and my position on the Project Mercury Recovery Force. My VSO rep thought I had 2 chances of establishing a nexus, slim and none. Although I had been receiving treatment since shortly after my discharge I had no idea that I would ever file a claim with VA and therefore had very little medical evidence prior to about 10 years ago. For the neck and back condition I searched every nook and cranny in our house and found a lot of secondary evidence, a canceled check here, a Dr. receipt there and many other documents such as insurance papers and work physicals. I then got statements from everyone I could think of that had knowledge of my condition, even other patients of Doctors I had seen. (most medical records prior to around 1980 didn't exist anymore, in some cases the offices were even gone). I ended up with about 50 documents from 1963 to present. I put this all together with my own statements and explanations in a looseleaf binder. For the Tinnitus, I put together a smaller package containing mostly government reports about hearing damage in the military. I also had a favorable opinion from the VA examiner where she said it was at least as likely as not etc. With 2 copies of these folders I went to my BVA hearing in Washington D.C. on December 5, 2007, a cold and snowy day. I had a letter from DAV to be there early to go over the case. When I got there they had no clue that I was coming. They wanted to delay my hearing. I raised such a fuss that the judge himself came to waiting room to calm me down. Against his advise I insisted on going on with the hearing without representation. I gave the judge a copy of my folders and asked that anything not already in my C-File be introduced as new evidence. We then went through my folders one page at a time and I was allowed to explain the rational behind every piece of evidence. When we were done the judge said that it was the best presentation he had seen in his 10 years on the bench. Now I am appealing the rating, and yes they have lost my paperwork. I had to resubmit my NOD and supporting documentation last week. Another journey begins.

Thanks Berta, The diagnostic codes I am talking about are those in Title 38 part 4, schedule for rating disabilities. I reviewed my documentation for the 3 SC conditions I have and find no mention of diagnostic codes. There is no rating sheet. Currently I have 2 issues: Issue 1) On 4/29/08 I filed a Notice of Disagreement (NOD) where I appealed the rating of 10% for my cervical spine condition and the 10% for my lumbar spine condition. I had a VA examination on 8/18/08 resulting in a range of motion (ROM) assesment that should give me a 20% rating for each of of these disabilities. However, I was told 2 days ago that VA has no record of the 4/29/08 NOD. I spent yesterday getting my records together and resubmitting the NOD (via certified mail as I have always done). Issue 2) On 4/29/08 I also filed for additional benefits for conditions secondary to the cervical spine and lumbar spine SC disabilities i. e. headaches and lower extremity pain. I have a decision on this claim dated 11/28/08. The headaches are SC but 0% rated (for lack of characteristic prostrating attacks averaging 1 in 2 months). The claim for lower extremity pain was denied for no diagnosis. There were two diagnosis but they were not considered. I will appeal these decisions in due time but first I want to settle issue 1. I don't want 2 claims in the hopper again unless I need to protect a filing date. What I am doing now is getting my ducks in a row for appealing issue 2 when the time comes. Looking at the schedule of ratings it appears that headaches might be code 8100 or possibly somewhere in the 8200s to 8400s. The lower extremity pain might be in the 8500s or 8600s. I can't find where my diagnosis fits in any catagory. It has been my experience that every doctor uses different terminology to describe the same thing. I turned to this forum hoping that someone with similar circumstances might shed some light on how I can point the VA in the right direction for me to receive the best rating possible. There can be quite a difference in the rating percentage depending on which code is used. And, by the way, does anyone know what a "characteristic prostrating attack" is? I found numerous definitions that a "characteristic prostrating attack" is a "characteristic prostrating attack". Thank you, Ken1939

I am: 10% SC for degenerative disease, cervical spine; 10% degenerative disease, lumbar spine amd 10% tinnitus. I am appealing the ratings for the spine conditions and am asking for additional benefits for secondary conditions i.e. headaches and lower extremity pain. The secondary conditions have already been denied and I will appeal that decision as soon as my other appeal has cleared. How do I know what codes the VA used when rating my case? There is no mention of codes in the decision documentation other than a reference to title 38. I read a lot in the forums about trying to get a case rated under certain codes. How, for example, can I present my case for the secondary nerve pain for the lower extremities? On the one hand, I have a report from the VA neurologist examiner where he does not give an actual diagnosis but opines that the pain is secondary to my SC lumbar condition. The claim was denied on the basis of no diagnosis. On the other hand, I do have a diagnosis from another VA examiner, an orthopedic surgeon, who says: " The veteran has lumbar degenerative disk disease, spondylosis, and spondylolisthesis with partial left foot drop. there is additional functional loss due to pain and weakness after repetitive use. The major impact is from the pain. There is additional functional loss of 5 degrees due to pain after repetitive use X 3. The straight leg raising causes low back pain on the left at 70 degrees. It is at least as likely as not that the nerve pain in the lower extremity is secondary to the lumbar spine condition." This examination was done 2 days before the neurologist's examination but was not included as evidence when deciding this case. I also have an examination report from a private neurologist that I have not submitted yet. He says: " The study (his examination) shows electrophysiologic evidence consistent with a left L5 radiculopathy." He goes on to say " the MRI scan of the lumbosacral spine shows anterolisthesis of L5 on S1 with moderate bilateral L5 neural foraminal narrowing as well as degenerative disk disease elsewhere." I will include the Dr. reports along with my summary when I submit my appeal. I have been studying the forum and the table of codes but for the life of me I cannot see a way to guide them to the right codes. The more I read the more I become bogged down with information overload. Thank you.

Rentalguy1 ;) Now why didn't I think of that? I assumed it would be a real hassle. I just called the C and P clinic and got an appointment with a different doctor. I did have to give a reason but that was no problem. Simple question, simple solution. Thank you very much. Ken

I had the same problem with the MD Va examiner, Dr. Bijpuria, who examined me in 2006. A lie is when you say something that is untrue and you know it is untrue so I'm not sure he lied. I am sure that he took liberties with the truth and he skipped some of the facts. He recommended that my SC be denied, which it was. The BVA overturned that decision and I am receiving 20% for a neck and back problem. I have appealed the rating of 20% because of the innacurracies in the examiners report. And I wrote a scathing critique of that report. Now, guess what, they are sending me back to Dr. Bijpuria for the appeal examination (August 20, 2008). I wonder how fair and impartial that will be. Has anyone tried to get a different examiner under similar circumstances? I am represented by the DAV but I have been calling several times every day for almost a week and get no answer ( actualy one answer and they and told me to call back later). I'll soon be running out of time where I will have to keep that appointment with Dr. Bijuria and I don't anticipate a happy ending with that. Thank you. Ken

Thanks. I took a short cut because I thought my only question was about the hearing and Tinnitus. Here is the whole skinny: In 2002 I filed one application for disability compensation for 1) Tinnitus; 2) hearing loss and 3) Cervical Disc Syndrome - neck and lower back injury. The neck and back injury from an auto accident in 1961 which is documented in my Military medical records. On 4/25/03 my claim was denied by the RO. They had apparently lost the info I sent them in my reply to a "duty to assist letter" and denied all three claims on the basis there was no evidence in file. I submitted a "Notice of Disagreement" and again mailed the information they had requested. On 11/25/03 I was again denied on all three counts. My hearing was within normal limits for VA purpose. For the Tinnitus the record failed to show service connection and for the back injury the evidence failed to show a medical nexus between the in-service injury and today's condition. I filed an appeal to the BVA on 4/2/04. On 5/3/06 The BVA remanded the case to the RO mainly asking that they schedule C&P exams for all three disabilities. On 6/6/06 a letter from DVA said the AMC rather than the RO would develop the appeal. Along with this came a VCAA notice which I answered by requesting more time. On 8/22/06 I sent more information. The C&P exams were conducted last fall. On 6/14/07 I received a supplemental SOC referencing the C&P exam for the back condition. They again denied the claim for the back injury but gave me 60 days to provide more evidence before the case goes back to BVA. I have gathered about 30 new documents in support of my back claim. I have already sent most of this in via certified mail and I am ready to summerize all of it and send in the last 3 or 4 documents. I figured I should address the hearing and Tinnitus while I am at it. I am assuming the AMC has the C&P audiology report. I got my copy from the VA medical center. All I have is this report and the private ENT doc's medical report and statement. This is where I am. My plan was to try and make my case on a Statement in Support of Claim hopefully with the right magical words to at least get a favorable ruling on the Tinnitus. I have been trying for over a year to get the American Legion to help me and have gotten nowhere. Sorry this is so long but no short cuts this time. Thank you. ken1939

I filed for hearing loss and Tinnitus in 2002. I was denied twice. The claim is due to go back to BVA in about a month. I have a statement from a civilian ENT doc saying "it is as likely as not my current condition results from noise exposure in the service." According to the Va the hearing loss is not bad enough but after doing some research on Tinnitus it looks like I might have a chance there. The VA C & P audiologist says I "have a moderate high-frequency hearing loss", bilaterally. She goes on to say "In my clinical opinion, it is at least as likely as not that the veteran's hearing loss was caused/aggravated by his noise exposure while in service. Moreover, it is also my opinion that the etiology of the Tinnitus may stem from the same casual factor." The last part regarding Tinnitus isn't quite as sure as the hearing loss but looks like it could be favorable to me. I was in the USMC from 1958 til 1962. I was a crew chief on a HR2S1, a helicopter with 2 roaring R2800 engines driving a screaming main transmission that was absolutely deafening. And, of course, there was that annual rifle range thing. There was no hearing protection in those days. There is no military service medical evidence showing hearing loss or Tinnitus. There is no nexus to connect my current condition to my service tour of duty. The Tinnitus didn't start until 2002. All I have is the above stated reports. Are there any suggestions on how I should present my case to BVA? The info from the civilian doc was present when they denied me before but the report from the VA C&P audiologist is new. Any help is greatly appreciated. Ken1939