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dav_marine72
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Posts posted by dav_marine72
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Yeah I know John. I appreciate the post. I know 11 years is not as long as some people wait but it's starting to weigh on me. I haven't been on here that much because I just can't stomach it anymore. Thanks man.
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Well after a two year wait I receive two separate decisions today from the BVA today. The first decision was not on my layers watch but will be now. The VARO denied me for the following:
Initial higher rating of more than 50% for Adjustment disorder from 2002.
Initial compensable rating for hypertension on appeal since sc in 2002.
Initial compensable rating for Eczema on appeal since sc in 2002.
Entitlement for service connection to GERD secondary to VA meds.
Entitlement to erectile dysfunction due to service connections and meds.
Entitlement to special monthly compensation based on aid & attendance or housebound taken away after a temporary 100% rating for service connected back surgery.
Gee guess what. It took them two years to point out my rep from the American legion had asked for a video conference hearing (I wasn't even aware of this) and since the VARO did not schedule it they are ordered to schedule it and I wait what another year or so to get my ratings. Even though the evidence of record shows all of the above should be decided my favor.
Second decision on appeal since 2000!!!!!!!!!!!!!!
Entitlement to an initial rating higher than 20% for a service connected back issue sc'd 2000.
Entitlement to a rating higher than 40% since 2009.
Entitlement to a neurological rating in excess of 10% since 2002 for a service connected back issue to include 2 failed surgeries, an L3-S1 fusion, 2 spinal stimulator trials, and a spinal stimulator implant at the VA in 2010.
Entitlement to a compensable rating for residuals of a left 3rd metatarsal fracture of the left foot to include severe pes cavus, severe ankle equinus, arthritis and degenerative changes on xray, drop foot, tarsal tunnel syndrome, and nerve entrapment on appeal since 2000.
Entitlement to a rating higher than 10% for residuals of a left 3rd metatarsal fracture of the right foot to include severe pes cavus, severe ankle equinus, arthritis and degenerative changes on xray, drop foot, tarsal tunnel syndrome, and nerve entrapment on appeal since 2000.
Entitlement to a compensable rating for chronic right groin and testicle pain on appeal since 2000.
This little super group was denied in 2001 by the VARO, denied in 2004 by the VARO, denied in early 2008 by the BVA, BVA decision thrown out in late 2009 by the U.S. court, and returned to the BVA late 2009.
So instead of using the evidence of record which proves ratings of at least 40-60% ortho back, 40-60 % each leg for neurological, 50% for pes cavus bilateral minimum not counting everything else from the feet, and 10% for the groin pain based on three separate medical evaluations stating it should not be rated under a urological rating but a neurological / nerve rating (includes a VA doctor).
All items sent back to the VARO for new exams. Instructions include telling the examiners to state whether they feel the exam can be conducted with general medical knowledge or if specific knowledge is needed. Instructions telling the examiners to state if they feel they are not qualified to give the exam (yeah right). A bunch of normal VA crap running down symptoms of higher ratings which are in the evidence of record by 10-15 different doctors (VA and Civilan). I'm waiting to hear back from my lawyer but she thinks we may go with the "develop the claim to deny the claim theory" based on the fact the BVA could have made decisions on all the above items without having a bunch of APRN general medical practitioners conduct exams on aliments for which they have no special training for.
Am I pissed off? Hell yes. I don't care what anyone says to remand this shit after having my case for 2 years to me is criminal. I guess I will be waiting another year for the VARO to schedule the 7-8 exams needed and then make wrong decisions. The BS never ends!
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Thanks guys. Yes John I tend yo agree with you. I guess if you think about it even though I appealed I have been TDIU for 2 years now. Maybe that the magic number LOL.
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Hi Everyone,
I have been TDIU since 2009 and was awarded chapter 35 benefits in a draft letter (which the VARO mistakenly gave me a copy) then they took it away in a decision dated a day later by the ratings board. I appealed this and it's due for a decision from the BVA any day. The VARO in my TDIU decision stated they would review my P&T status in September 2011 as they thought after my 2nd failed back surgery I might get better LOL. So after I received my social security award in September 2010 I wrote the VARO a letter asking that they do the review now and not wait until September 2011 mostly because of the insurance for my dependents. So as I am awaiting two different decisions from the BVA any day (ebenefits says a decision was made and is waiting to be dispatched) I receive a fat letter from the VARO today. Hoping it was a decision I eagerly opened it. Well the fat part was a little book about Chapter 35 benefits. The letter included said "I was receiving this letter because I was a parent or guardian of a child who may be eligible for education assistance under laws administered by the Department of Veterans Affairs. The pamphlet describes the benefit."
Notice the "may be" in the verbiage. My lawyer thinks they may have mailed these out to anyone who is TDIU. Anyone else receive a letter like this lately? Obviously I need to see a decision before I believe I have P&T but this seems like it could be the VAROs round about way of staying I am P&T. Anyone have any comments?
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Good luck. I'm waiting for 2 large claims at the BVA myself that according to the ebenefits site a decision has been made and they are waiting dispatch. Hope the best for you.
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Tell me about it. I broke both my feet, one in boot camp, the other in Marine Combat Training. Little did I know I guess I had pes cavus. So after 4 years of hiking a pack and running up the hills (mountains) of Camp Pendleton I lost my body. I remember the chants of suck it up Marine. Pain is just weakness leaving the body. Get the F**k up the hill.
Now just about 20 years after entering boot camp I have had two failed back surgeries including an L3-S1 fusion with titanium cages, severe bliateral pes cavus, severe bilateral equinus, severe lower extremity issues including muscle wasting and atrophy, arthritis in my feet, weakness and severe pain in my feet, and severe back and leg pain 24/7. The 3 mg of Ativan, 180 mg of Morphine, and 120 mg of Oxycodone a day I take barely touch the pain. I have a spinal stimulator which takes a little bit off my legs when they are cramping and the pain is severe. I may have had some kind of genetic defects in my feet but prior to service I was just fine.
Semper Fi do or Die Gung Ho Ho
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Hi Everyone,
I need to apologize as I have been MIA for many months. With 2 cases at the BVA totaling 17 issues some going back to 1996 I just needed to get away from VA claims etc. Anyhow it looks like the same "Judge" had both my cases with all the issues and made a decision as of 3/9/2010. Hopefully since they are all intwined the decisions will come back favorable.
I wanted to post information about an attorney here since most people seem to hang in this area. I have been working with her for quite sometime and she is awesome. If she can't handle something she has a network of good fellow VA lawyers she can refer you to. As far as my issues are concerned her fee is the normal 20%. It seems like it's getting harder and harder to find a good lawyer period, yet find one to take the standard fee.
Here is her info. Feel free to tell her Mike Riordan sent you.
Valerie D. Metrakos
The Metrakos Law Firm
Valerie D. Metrakos
Attorney at Law
1559B Sloat Boulevard, Suite 492
San Francisco, CA 94132-1222
T 415.545.VETS F 888.875.6611
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Hey Rgero,
As others stated it's tough to offer advice without knowledge of the entire case history. However, I will tell you this. I have been 10% right foot and 0% left foot since 1996. I have post fractures of the third metatarsals, severe pes cavus, severe equinus. I also like you have barely any ROM in the ankle area. I finally got an attorney to look into this because it has been on appeal since 2000. They found that based on VA law I should have been rated 40% - 50% combined for both feet since 1996.
The problem with the VA and feet / ankles is the regs are so spotty. I have been rated under foot injuries, other since SC. I would be willing to review your case offline if you'd like. If not I'd suggest a lawyer. I have studied VA law since I got out in 96 and feel I am very knowledgeable but I have learned sometimes getting an attorney is the only way your going to get your true rating. In my case the back pay should be hefty so 20% isn't that bad. They also don't get a dime if they lose. I can also refer some attorney's to you if you'd like. Good luck.
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congrats I know the wait seems absurd but there are places i this nation where some people would be really happy about an 18 month wait sone palces wait from 2-3 years before winning their claims and in some cases to be told NO again I am glad you won I also have a bad back but that is not why I am disabled mine is shot from L3-S1
Thank you and your absolutely right. I am fortunate that I received TDIU the first shot from the RO and only had to go to the first judge with SS. It just weighs on you when you look at your family and realize if you don't get this money it's not only hurting you but them too.
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Glad you got some good news here. Rememer the 5 mths waiting period too. So tell me are these issues the exact same as the ones you were granted awards for from the VA? Were they service related? Just curious as the VA has to have VA documentation and SSDI have to have injuries validated during your lifetime, not necessarily va related. Hope you have a little left after credit card pmts, to get/do something nice for yourself.
Thanks Halos. Yes these are aliments I am service connected for. Whether you call it lucky or not so lucky all of my 12 medical aliments are either direct service connections or secondary. Thanks.
Thank you.
Bravo, Marine!
All the best with the VA process.
Thanks.
Congratulations on your award!
Thank you.
Good deal be sure and notify VA of your award.
Thanks will do.
Thanks.
Thanks, yes I have 5 months till I hit the 24 month Medicare wait.
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Welcome. Captain are you receiving a separate rating for your neurological symptoms in your leg as stated previously? If not you should be based on the reg change in 2002.
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Welcome. Message me if you want any advice with mental health. I had a bad experience when I first started going to my local clinic years ago.
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Welcome. Message me if you need any help!
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YIPPEE !
Spend your retro wisely.
Thanks. Don't worry it's all going to wipe out credit card debt!
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Hi Everyone,
I currently have an appeal going for P&T 100%. Initially the rater awarded it to me but the rating board or review board whatever the RO does before final decision took it away. Since I'm 38 they claimed my back condition could possibly get better. This is after 13 years of back and leg issues including two surgeries. My fusion of L3-S1 in 2009 was the last straw and I was was unable to work after that. They awarded me TDIU six months after but again denied the P&T. I just got my Social Security award yesterday. I assume this should help my P&T appeal? Anyone have experience with this? Thanks.
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Hi Everyone,
Still waiting on all my VA appeals but yesterday I finally sighed a huge relief. Social Security judge determined that I suffer from severe degenerative disc disease post 2 failed surgeries at L3-S1, severe depression and anxiety secondary to the spinal condition. She ruled the state agency did not take into account my subjective complaints and that the state examiners opinions that I could work carried little weight compared to the numerous doctors opinions of my disabilities over the last 13 years. The award went back several months before I filed so that was a bonus. It's BS that I had to wait a year and a half but thank God I did not have to appeal this one any further.
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Congratulations! Stay motivated.
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Thanks Pete
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Hi Everyone,
I finally had my SS hearing last week. I didn't get a decision off the bench like I had hoped for. Supposedly I got the hardest judge in the particular office. I couldn't really get a good read on the judge. My lawyer thought it went good but you know how that goes. The only thing that seemed hopeful was she did not call the vocational specialist to try and say what jobs I could do. Hurry up and wait again.
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Here are the current regs:
The Spine
RatingGeneral Rating Formula for Diseases and Injuries of the Spine
(For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes):
With or without symptoms such as pain (whther or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease
Unfavorable ankylosis of the entire spine100Unfavorable ankylosis of the entire thoracolumbar spine50Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine40Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine30Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis20Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height10Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
Note (2):(See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.
Note (3):In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.
Note (4):Round each range of motion measurement to the nearest five degrees.
Note (5):For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.
Note (6):Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.
5235 Vertebral fracture or dislocation
5236 Sacroiliac injury and weakness
5237 Lumbosacral or cervical strain
5238 Spinal stenosis
5239 Spondylolisthesis or segmental instability
5240 Ankylosing spondylitis
5241 Spinal fusion
5242 Degenerative arthritis of the spine (see also diagnostic code 5003)
5243 Intervertebral disc syndrome
Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25.
Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes
With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months60With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months40With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months20With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months10Note(1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.
Note(2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.
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Hey Chris,
Halos posted some good questions that need to be answered. That aside yes your back becomes one big service connection. There are a few ways the VA rates backs today.
1. Incapacitating episodes - This in my mind is BS because a doc has to prescribe bed rest. I have had 3 levels of DDD, 2 surgeries, etc. over the past 13 years. I have never had a doc prescribe me bed rest. Even after surgery they want you up and walking around ASAP. (My warning - don't have back surgery unless you have a clear cut case or it is necessary for living :)
2. Range of motion - bending forward - to the side, etc.
3. Rate the orthopedic and neurological conditions - Meaning maybe you can bend forward to 20 degrees which would rate 40%, you get nerve blocks in your discs for your legs and you have measured atrophy and muscle wasting of both legs - 40% right leg / 40% left leg
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CM do you have a service officer? If not get one so they can review your case. It's free. I agree with the other post call your congressman.
Have you called your state social services to get food stamps and possibly cash from them? That's what those benefits are there for espically when a Vet needs them in my mind.
Well I have submitted my cliam. Send in all the statements in support. Send nexus letters and several buddy letters. They dont have the smr's so I have done all I can to represent my issues the best I can. I have been getting treatment for all my issues and now just waiting for an outcome. I am concerned cause a lady who send hers in in april of this years has her C & P Exam next week. I dont have one yet and I started in Oct of last year. I am hoping I didnt get lost on the shuffel. I send in a request due to homelessness for my claim to be expidited. I applied for pension and compensation. I am just not sure what is next.Any advise will be appreciates. I have no money and am worried sick that I may not have done enough. I am worried about there being more I could have done.
Please give me you advise if any out there.
Thnx
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I got my own answer. As someone had told me my folder is at the VARO for a refresh and then it will be sent back to the board or AMC. Which means I am at the mercy of the VARO because with 10 service connections my folder is huge and they hate me ;)
Hi Everyone,I had four claims get a joint remand from the CAVC in Dec. 2009. My C folder made it back to the VARO in Feb. They haven't even opened it according to them. I saw the remand order but it did not specify what actions were to be done. It just showed the agreed reasons why the CAVC attorney and my attorney believed a remand was due.
What typically happens after a remand? I heard that the VARO has to refresh your folder and then it goes back to the BVA. Then I've heard the AMC. Anyone????????????
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Yes it's another way they don't impliment the grant the Veteran the most possible benefits under the law.
What would be interesting to see is if any Vet ever recieved TDIU under b without a lawyer. I'd tend to think not but who knows.
I keep running off at the mouth about how the percentages are not the only determining factor in a TDIU award.When reading 416b we discover the percentages are really just a scapegoat, an excuse, not a reason.
My lawyer successfully argued this point in my case.
In the decision on my case the RO had expounded upon 416a and failed to mention 416b.
I received TDIU in the decision but, they used the wrong standard by failing to mention 416b, which overrules the (a) part.
416b trumps 416a and therefore controls.
Check it out below.
sledge
§4.16 Total disability ratings for compensation based on unemployability of the individual.
(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:
(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,
(2) Disabilities resulting from common etiology or a single accident,
(3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,
(4) Multiple injuries incurred in action, or
(5) Multiple disabilities incurred as a prisoner of war.
It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501(a))
(;) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.
[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996]
I Wait 2 Years For The Bva To Remand 14 Issues. Wtf. Bva Do Your Job. You Should Not Be Paid You Do Nothing!
in VA Disability Claims Research
Posted
I hate to hear those stories Bobby. My lawyer has a case know in the same limbo. Even though they have the expedited deal we all know it's BS. I guess I should be happy. I'm relatively young, not terminally ill, have two healthy kids, there is always food on the table, TDIU, SS award. Thanks for the post if gets my mind off thinking about myself. I commend you for helping Veterans. I thought I could do that knowing VA law pretty well now but I quickly learned I just can't stomach it. So I run a sports memorabilia store instead. I make people happy and people's livelyhoods are not at stake. :)