[Varo Sitting On My Remand]

Thanks Pete,

I just talked with my CAVC lawyer and she stated that it shoud have gone straight to the board and not the VARO. Thanks.

Hi Everyone,

I'm at a loss here. My VARO has stated my C-file returned from the CAVC in Feb. of this year. They cannot give me any further information. They said no one has probably opened the folder to see the instructions. I went back and looked at my remand which I will post below and it is all addressed to the board. It definitely looks like new exams are needed. So I am wondering how does all this work? Is the VARO only refreshing my folder and then sending it to the BVA? Will the BVA then ask the VARO for exams for me? Anyone who has had a remand come back from the CAVC been in a similar situation? Thanks in advance.

IN THE UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

XXX )

)

Appellant, )

)

v. ) Vet. App. No. 08-0983

)

ERIC K. SHINSEKI, )

Secretary of Veterans Affairs, )

)

Appellee. )

JOINT MOTION FOR REMAND

Pursuant to U.S. Vet. App. R. 27(a), Appellee, the Secretary of Veterans Affairs, and Appellant, XXX, through their respective representatives, move the United States Court of Appeals for Veterans Claims (Court) to vacate that part of the Board of Veterans' Appeals ("Board") decision, dated March 14, 2008, that denied Appellant's claims of entitlement to an initial rating in excess of 20 percent for a back disability, involving lumbar strain and degenerative disk disease, entitlement to an initial compensable rating for disability manifested by testicular and groin pain, a compensable rating for residuals of a fracture, left 3rd metatarsal, and a rating in excess of 10 percent for residuals of a fracture, right 3rd metatarsal.

The parties ask the Court to remand Appellant's claims for further proceeding in accordance with the discussion below. For the purpose of this remand, or as otherwise provided, the parties accept the facts as provided by the Board.

BASES FOR REMAND

Back Disability

The parties agree that the Court should remand the Board's decision that denied Appellant's claim of entitlement to an increased rating for his service-connected back disability. The Board erred when it did not ensure that Appellant was provided an adequate examination in this matter. The Secretary's statutory "duty to assist" requires the Secretary to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C. § 5103A. To satisfy this statutory duty, the Secretary must provide an adequate examination if it is necessary to decide the claim. 38 U.S.C. § 5103A(d)(1); see 38 C.F.R. § 3.159© (2008). An adequate medical examination is a "thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet.App. 121, 124 (1991). If an examination report does not contain sufficient detail, the Secretary must "return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2008); see Bowling v. Principi, 15 Vet.App. 1, 12 (2001).

The parties submit that the evidence of record raised the issue of functional impairment of Appellant's service connected back disability. (See R. at 1362-1475, 1525, 1640-1646, 1656-1660, 1664-1693, and 1722). The Board recognized this issue and cited 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown¸ 8 Vet. App. 202, 206-07 (1995). (R. at 7). The parties submit that the medical evidence does not include VA examinations, including VA examinations conducted in October 2000 (R. at383-85) and September 2004 (R. at1477-78), that provide findings regarding the level of functional impairment of Appellant's service-connected back disability.

In addition, in evaluating Appellant's back disability, VA is required to evaluate neurological manifestations. See 38 C.F.R. § 4.71a, Note 1. In its decision, the Board indicated that Appellant's "neurological complaints relate to the lower extremities", and "[t]hus DCs 8522-8530 are potentially applicable." (R. at 11). The Board then concluded that the evidence "demonstrate[d] mild neurologic manifestations," but then admitted the "medical evidence does not specifically state which nerves were affected by the veteran's low back disability." (R. at 11-12). However, the Board did not obtain a VA medical examination to assess the nerves which are involved in Appellant's back disability. As the Board noted Appellant's neurological complaints involve the lower extremities, and, therefore, 38 C.F.R. § 4.124a, Diagnostic Codes 8522-8530 may apply in this case. (See R. at 11).

Based on the foregoing, the parties agree that remand is necessary for the VA to provide Appellant with an adequate examination to evaluate any functional impairment and neurological manifestations due to Appellant's service-connected back disability.

In addition, the parties submit that remand is necessary for the Board to provide an adequate statement of reasons or bases for denying a higher rating for Appellant's service-connected back disability. The Board did not discuss the December 2004 (1520-22) and October 2007 (R. at 1738-40) medical statements Appellant submitted from Dr. Craig N. Bash. In those statements, Dr. Bash essentially stated that the symptoms, including persistent sciatic nerve problems, muscle spasm, associated with Appellant's back disability warrant the assignment of a higher disability rating. Id. This evidence appears to be relevant to Appellant's claim. However, the Board did not discuss it in its analysis. "Fulfillment of the reasons or bases mandate requires the BVA to set forth the precise basis for its decision, to analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant in support of the claim, and to provide a statement of its reasons or bases for rejecting any such evidence." Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Therefore, remand is required for the Board to readjudicate this matter with consideration of Dr. Bash's December 2004 and October 2007 statements.

Disability Manifested by Testicular and Groin Pain

The parties submit that remand is necessary for the Board to provide an adequate statement of reasons or bases for denying Appellant's claim of entitlement to a compensable rating for disability manifested by testicular and groin pain. The Board did not discuss the December 2004 (1520-22) and October 2007 (R. at 1738-40) medical statements Appellant submitted from Dr. Craig N. Bash. In the December 2004 statement, Dr. Bash stated that the Appellant's service-connected testicular disability should be rated under diagnostic codes "7804 or 8730 because his symptoms likely originate from the ilio-inguninal nerve and not from his prostrate or bladder organ systems and the level of the diagnostic sub-rating should be set at a level to incorporate his pain and restrictions of movement . . . ." (R. at 1520). In the November 2007 statement, Dr. Bash asserted that Appellant's disability is more disabling than currently evaluated and suggests that Appellant's disability should be evaluated under Diagnostic Code 8530. (R. at 1739). The parties note that service connection for right groin neuralgia with nerve entrapment was previously denied in June 2003. (R. at 1126). However, given that this evidence was submitted in the context of Appellant's increased rating claim, the Board is required to address whether the information provided by Dr. Bash could provide any basis for a higher disability rating for his service-connected disability. See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). Therefore, remand is required for the Board to readjudicate this matter with consideration of Dr. Bash's December 2004 and October 2007 statements.

Residuals of a fracture, left 3^rd metatarsal and Residuals of a fracture, right 3^rd metatarsal.

The parties agree that the Board did not provide an adequate statement of reasons or bases for denying Appellant's claims of entitlement to increased ratings for Appellant's service-connected residuals of a fracture of the left 3^rd metatarsal and residuals of a fracture of the right 3^rd metatarsal. In its decision, the Board determined that a preponderance of the evidence was against the claims. (See R. at 17-19). However, the Board did not consider in its evaluation the May 15, 2000, report of Dr. Eric Silverstein. (R. at 326). In his report, Dr. Silverstein observed that the symptoms associated with Appellant feet included pain as over the medial aspect of the feet radiating down to the toes and diagnosed Appellant as having tarsal tunnel syndrome bilateral feet. Id. Tarsal Tunnel syndrome is "a complex of symptoms resulting from compression of the posterior tibial nerve of the plantar nerves in the tarsal tunnel, with pain, numbness, and tingling paresthesis of the sole of the feet." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, 1873 (31^st ed. 2007). The parties note that this evidence is potentially relevant to Appellant's claim. See Gabrielson v. Brown, supra. Therefore, the parties agree that remand is necessary for the Board to re-evaluate Appellant's bilateral foot condition in light of the foregoing.

Wherefore, the parties respectfully move the Court to vacate, in part, the Board's March 14, 2008, decision and remand Appellant's case for the Board's compliance with the instructions and discussion set forth above.

Appellant is entitled to submit additional evidence and argument on remand, Kutscherousky v. West, 12 Vet. App. 369, 372 (1999) (per curiam order), and VA is obligated to conduct a critical examination of the justification for the decision. Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). VA should incorporate this Joint Motion for Remand with the claims file for consideration in its readjudication of the claims. In any subsequent decision, the Board must set forth adequate reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record. See 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet. App. at 56-57.

[How Many People Are Waiting On Appeal?]

4 increase items on appeal since 2000 (went to BVA in sept 2006, denied at BVA in mar. 2008, remanded at cavc dec. 2009, waiting at varo since feb. 2010) 3 appeals at VARO since 2002 (never left to bva in 2006 as I instructed per appeal form).

[Varo Sitting On My Remand]

Hi Everyone,

I'm at a loss here. My VARO has stated my C-file returned from the CAVC in Feb. of this year. They cannot give me any further information. They said no one has probably opened the folder to see the instructions. I went back and looked at my remand which I will post below and it is all addressed to the board. It definitely looks like new exams are needed. So I am wondering how does all this work? Is the VARO only refreshing my folder and then sending it to the BVA? Will the BVA then ask the VARO for exams for me? Anyone who has had a remand come back from the CAVC been in a similar situation? Thanks in advance.

IN THE UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

XXX )

)

Appellant, )

)

v. ) Vet. App. No. 08-0983

)

ERIC K. SHINSEKI, )

Secretary of Veterans Affairs, )

)

Appellee. )

JOINT MOTION FOR REMAND

Pursuant to U.S. Vet. App. R. 27(a), Appellee, the Secretary of Veterans Affairs, and Appellant, XXX, through their respective representatives, move the United States Court of Appeals for Veterans Claims (Court) to vacate that part of the Board of Veterans’ Appeals (“Board”) decision, dated March 14, 2008, that denied Appellant’s claims of entitlement to an initial rating in excess of 20 percent for a back disability, involving lumbar strain and degenerative disk disease, entitlement to an initial compensable rating for disability manifested by testicular and groin pain, a compensable rating for residuals of a fracture, left 3rd metatarsal, and a rating in excess of 10 percent for residuals of a fracture, right 3rd metatarsal.

The parties ask the Court to remand Appellant’s claims for further proceeding in accordance with the discussion below. For the purpose of this remand, or as otherwise provided, the parties accept the facts as provided by the Board.

BASES FOR REMAND

Back Disability

The parties agree that the Court should remand the Board’s decision that denied Appellant’s claim of entitlement to an increased rating for his service-connected back disability. The Board erred when it did not ensure that Appellant was provided an adequate examination in this matter. The Secretary’s statutory “duty to assist” requires the Secretary to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C. § 5103A. To satisfy this statutory duty, the Secretary must provide an adequate examination if it is necessary to decide the claim. 38 U.S.C. § 5103A(d)(1); see 38 C.F.R. § 3.159© (2008). An adequate medical examination is a “thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Green v. Derwinski, 1 Vet.App. 121, 124 (1991). If an examination report does not contain sufficient detail, the Secretary must “return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (2008); see Bowling v. Principi, 15 Vet.App. 1, 12 (2001).

The parties submit that the evidence of record raised the issue of functional impairment of Appellant’s service connected back disability. (See R. at 1362-1475, 1525, 1640-1646, 1656-1660, 1664-1693, and 1722). The Board recognized this issue and cited 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown¸ 8 Vet. App. 202, 206-07 (1995). (R. at 7). The parties submit that the medical evidence does not include VA examinations, including VA examinations conducted in October 2000 (R. at383-85) and September 2004 (R. at1477-78), that provide findings regarding the level of functional impairment of Appellant’s service-connected back disability.

In addition, in evaluating Appellant’s back disability, VA is required to evaluate neurological manifestations. See 38 C.F.R. § 4.71a, Note 1. In its decision, the Board indicated that Appellant’s “neurological complaints relate to the lower extremities”, and “[t]hus DCs 8522-8530 are potentially applicable.” (R. at 11). The Board then concluded that the evidence “demonstrate[d] mild neurologic manifestations,” but then admitted the “medical evidence does not specifically state which nerves were affected by the veteran’s low back disability.” (R. at 11-12). However, the Board did not obtain a VA medical examination to assess the nerves which are involved in Appellant’s back disability. As the Board noted Appellant’s neurological complaints involve the lower extremities, and, therefore, 38 C.F.R. § 4.124a, Diagnostic Codes 8522-8530 may apply in this case. (See R. at 11).

Based on the foregoing, the parties agree that remand is necessary for the VA to provide Appellant with an adequate examination to evaluate any functional impairment and neurological manifestations due to Appellant’s service-connected back disability.

In addition, the parties submit that remand is necessary for the Board to provide an adequate statement of reasons or bases for denying a higher rating for Appellant’s service-connected back disability. The Board did not discuss the December 2004 (1520-22) and October 2007 (R. at 1738-40) medical statements Appellant submitted from Dr. Craig N. Bash. In those statements, Dr. Bash essentially stated that the symptoms, including persistent sciatic nerve problems, muscle spasm, associated with Appellant’s back disability warrant the assignment of a higher disability rating. Id. This evidence appears to be relevant to Appellant’s claim. However, the Board did not discuss it in its analysis. “Fulfillment of the reasons or bases mandate requires the BVA to set forth the precise basis for its decision, to analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant in support of the claim, and to provide a statement of its reasons or bases for rejecting any such evidence.” Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Therefore, remand is required for the Board to readjudicate this matter with consideration of Dr. Bash’s December 2004 and October 2007 statements.

Disability Manifested by Testicular and Groin Pain

The parties submit that remand is necessary for the Board to provide an adequate statement of reasons or bases for denying Appellant’s claim of entitlement to a compensable rating for disability manifested by testicular and groin pain. The Board did not discuss the December 2004 (1520-22) and October 2007 (R. at 1738-40) medical statements Appellant submitted from Dr. Craig N. Bash. In the December 2004 statement, Dr. Bash stated that the Appellant’s service-connected testicular disability should be rated under diagnostic codes “7804 or 8730 because his symptoms likely originate from the ilio-inguninal nerve and not from his prostrate or bladder organ systems and the level of the diagnostic sub-rating should be set at a level to incorporate his pain and restrictions of movement . . . .” (R. at 1520). In the November 2007 statement, Dr. Bash asserted that Appellant’s disability is more disabling than currently evaluated and suggests that Appellant’s disability should be evaluated under Diagnostic Code 8530. (R. at 1739). The parties note that service connection for right groin neuralgia with nerve entrapment was previously denied in June 2003. (R. at 1126). However, given that this evidence was submitted in the context of Appellant’s increased rating claim, the Board is required to address whether the information provided by Dr. Bash could provide any basis for a higher disability rating for his service-connected disability. See 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). Therefore, remand is required for the Board to readjudicate this matter with consideration of Dr. Bash’s December 2004 and October 2007 statements.

Residuals of a fracture, left 3^rd metatarsal and Residuals of a fracture, right 3^rd metatarsal.

The parties agree that the Board did not provide an adequate statement of reasons or bases for denying Appellant’s claims of entitlement to increased ratings for Appellant’s service-connected residuals of a fracture of the left 3^rd metatarsal and residuals of a fracture of the right 3^rd metatarsal. In its decision, the Board determined that a preponderance of the evidence was against the claims. (See R. at 17-19). However, the Board did not consider in its evaluation the May 15, 2000, report of Dr. Eric Silverstein. (R. at 326). In his report, Dr. Silverstein observed that the symptoms associated with Appellant feet included pain as over the medial aspect of the feet radiating down to the toes and diagnosed Appellant as having tarsal tunnel syndrome bilateral feet. Id. Tarsal Tunnel syndrome is “a complex of symptoms resulting from compression of the posterior tibial nerve of the plantar nerves in the tarsal tunnel, with pain, numbness, and tingling paresthesis of the sole of the feet.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, 1873 (31^st ed. 2007). The parties note that this evidence is potentially relevant to Appellant’s claim. See Gabrielson v. Brown, supra. Therefore, the parties agree that remand is necessary for the Board to re-evaluate Appellant’s bilateral foot condition in light of the foregoing.

Wherefore, the parties respectfully move the Court to vacate, in part, the Board’s March 14, 2008, decision and remand Appellant’s case for the Board’s compliance with the instructions and discussion set forth above.

Appellant is entitled to submit additional evidence and argument on remand, Kutscherousky v. West, 12 Vet. App. 369, 372 (1999) (per curiam order), and VA is obligated to conduct a critical examination of the justification for the decision. Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). VA should incorporate this Joint Motion for Remand with the claims file for consideration in its readjudication of the claims. In any subsequent decision, the Board must set forth adequate reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record. See 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet. App. at 56-57.

[Pain Is Driving Me Crazy, Any Thoughts?]

After 2 back surgeries I hope to not have any surgeries again LOL. I hear about the drug issue. I just watched a special about oxy and Florida. It really screws anyone who is in true chronic pain.

The only downside if if you have to have surgery what are they going to give you on top of what you are getting to kill the pain? Actually, I envy you. I really wish my doctor would do something for me, but in Florida now it is cash and carry. The pain doctors accept cash only for drugs. It is going to end up screwing us all even VA patients.

[Bva Vacates Its Own Decision]

What a great find!

I noticed this case in trying to help bigjim in the DRO, BVA, CAVC forum-

I think his claim should be moved up here to claims research for more input.

This is something I sure haven't seen much in 20 plus years:

"FINDINGS OF FACT

A February 6, 2002 Board decision denied a claim for

compensation under 38 U.S.C.A. § 1151 for disability

involving broken legs, staph infection, and osteomyelitis,

claimed as due to VA medical treatment in 1996. That Board

decision did not accord the veteran full due process, as the

decision did not consider all pertinent VA medical records

constructively on file (particularly an additional pertinent

VA medical record submitted by the veteran after the Board

decision).

CONCLUSION OF LAW

As the February 6, 2002 Board decision did not accord the

veteran full due process, such Board decision must be

vacated. 38 C.F.R. § 20.904(a) (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In a February 6, 2002 decision, the Board denied a claim for

compensation under 38 U.S.C.A. § 1151 for disability

involving broken legs, staph infection, and osteomyelitis due

to VA medical treatment in 1996. However, that Board

decision did not accord the veteran full due process, as the

decision did not consider all pertinent VA medical records

constructively on file (see Bell v. Derwinski, 2 Vet.App. 611

(1992)), namely a pertinent September 1996 VA medical record

which the veteran submitted after the Board decision. Under

such circumstances, the February 2002 Board decision deprived

the veteran of full due process. Consequently, the Board now

vacates its February 2002 decision. 38 C.F.R. § 20.904(a).

The case will hereafter be assigned to another Board Member

who will perform a new review and issue a new decision on the

claim for compensation under 38 U.S.C.A. § 1151.

ORDER

The February 6, 2002 Board decision is vacated."

http://www4.va.gov/vetapp02/files04/0215964.txt

What is unusual is the the veteran filed a Motion for Reconsideration but at the same time the BVA decided to reconsider this case again.

This was not a vacate order from the CAVC-but shows the power of a Motion for Reconsideration-Whether the BVA moves for it or the claimant does.(I would not wait for BVA to do this however)

The initial judge recused themselves as well.

I need to copy this and pour over it. This is A DELICIOUS DECISION.

"As the February 6, 2002 Board decision did not accord the

veteran full due process, such Board decision must be

vacated. 38 C.F.R. § 20.904(a) (2002)."

Beautiful.

A CUE cannot be used for a Duty to Assist error but a reconsideration request can do it.

[Back Condition Claims Help Requested]

My back was 20% since 2000 which has been on appeal. Part of my CAVC remand was the deluca factor. The problem I see is that the rater gets to decide if your in a flare-up that day or not. I finally got 40% and TDIU after my L3-S1 fusion when I was only able to bend to 20 degrees. I've had two exams since then both bending only 20. For the deluca factor they both stated that I winced etc. However, they both said they did not believe during flare-ups I would be worse. Now I tell you what when I'm worse I'm not getting out of bed or off the floor.

Anyway it will be interesting to see what they finally rate me. Since I'm only 10% neurological combined in one for both legs I know I will (well should) see both legs rated. Since I have been getting nerve blocks, opiates, and have documented atrophy / wasting / unsymettrical lower extremity muscle groups I should get a decent rating for the neurological. Don't know what they will do with the ortho part.

I have a question about the orginal poster. They said they were 10% for DDD and herniated discs each? How is that possible? I'm service connected for a back injury which includes DDD L3-S1 post L3-L4 / L4-L5 hemi-laminectomy and hemi-discectomy and a L3-S1 fusion and have spondylosis, arthitis, and spinal stenosis. I thought this was all rated under the ortho rating???????????

Also if they consider your pain under the back you can't get chronic pain syndrome seperately can you?

I know about the mental I am 2nd to back for 50%.

[Pain Is Driving Me Crazy, Any Thoughts?]

Yeah I hear ya. It's quite strong orally too.

[C&p Exam]

Hey Pog,

I had a back problem that I went after the VA for 5 years after getting out of service. I had a civilan doctor say it might have happen in service and then the VA examiner said it was more likely than not that it happened in service. They service connected me. I don't know about your experience but I've had like 20 something C&P exams and only once did they not treat the examiner's word as god and that was because they threw other BS at me. Good luck.

[Next Steps After Cavc]

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????????????

[Success !]

Good work hoppy,

I commend you for your help with Veterans!

[Time Period After Hearing]

Thanks for everyone's postings.

[Pain Is Driving Me Crazy, Any Thoughts?]

Yes I am lucky to have the doc I have. That is why I wont go to the VA and pay $100 to see him. Fee basis is supposed to kick in for but I haven't seen anything. I also pay $300 a month for state insurance so I can get the opiates.

The dilaudid is strong quick acting and better than oxycodone for me. Doesn't last that long but I guess that's why he gave me 5 a day. I know I'll develop a tolerance at some point but at least for now I'm getting some relief. I was at the point before of why live like this. Thanks for recommeding the dil blanco.

Sorry other vets can't get the meds I can. I know how bad it is. It sucks that because of drug addicts people with chronic pain have to suffer even more.

[Pain Is Driving Me Crazy, Any Thoughts?]

Hi Everyone,

I went to the pain doc this morning. I got him to prescribe me dilaudid. He gave me 4mg x 5 times a day. I just took one about 20 minutes ago and I'm starting to feel it. It seems pretty strong. He kept me on the oxycontin 40mg for the long lasting. He thought my insurance might not cover the dilaudid but they did for the generic anyway (hydromorphone). Of course I go to pick up the scripts and there is an issue. I guess they are stopping production of oxycontin generic because of the issues with it. So instead of 90 pills I could only get 80. Not that big of a deal I'll just switch to ms contin next month. I have state insurance so they don't want to pay for brand name unless the pain center does a referral and for whatever reason they won't. So it looks like 5 hydromorphones and 3 oxycontins a day for this month. I'll chrime in later on how they work but they seem to be starting to kick in hard. Thanks.

[P&t Appeal]

To answer your question about the examiner quoting service connections for my A&A in her diagnosis she only states chronic pain secondary to my failed back fusion surgery, talks about the side effects from the opiates I take for only my back, talks about being housebound because of chronic pain and panic attacks (service connected), and then states I have mod/severe functional impairment of my back because of reduced range of motion and subjective complaints. No mention of non service connected issues...............

[P&t Appeal]

Yeah I through out Bradley vs. Peake. I think I have enough evidence including my A&A exam to get A&A and SMC (L). I'm thinking I'll have a hearing with a DRO just to lay out all my evidence and ask them about the non-service connected aliments. I truly believe it will take the BVA if not higher to get this resolved.

Here is what they wrote for the non-service connections:

Active problems list includes several medical conditions for which you are seen and treated (incudes both service connected and non-service connected), which will not be individually listed here.

Awfully nice of them not to include the issues. They go on:

You have been seen and treated for your spinal condition (service-connected), as well as impaitment involving your lower extremity weakness (you are service connected for residuals of a fracture of your right and left 3rd metatarsals and weakness of the right lower extremity), however, you are not service connected for your right knee, left ankle sprain, fracture, left foot, and neurological condition of the bilateral legs.

First off I have no problem or medical evidence or diagnosis of ever being treated for a knee condition. I was seen in service for this and orginally filed for service connection in 95 but got shot down and since I had no active problems I dropped it. The left ankle sprain occured in service and again I filed in 95 because I was told to file for everything. I dropped the claim after it was denied because I had no problem with it. I did recently tell VA podiatry that I have had ankle sprains over the years because of my feet. My feet which I had no problems or diagnoses prior to service yet when I came out I had Pes Cavus and Equinus. Both of these issues have become severe and have been documented since 1996 less than a year after leaving the Marines. I fractured my right foot and got a stress fracture of the left in service. They service connected both in 1996. I don't know what fracture, left foot means. However, I am serviced connected for residuals of a stress fracture of the left foot. As far as the neurological condition of the bilateral legs goes that is from my back. I have a well documented exam in 2007 and 2009 stating all the muscle groups in my lower extremities are unsymmetrical, I have muscle wasting and atrophy and he tied it all back to my L3-S1 discs respectively. I also happen to be service connected for lower extermity weakness in both legs LOL. See my BVA case where they awarded it to my second to my back.

http://www4.va.gov/vetapp08/files1/0808584.txt

So all the non-service connected disabilities are a bunch of crap. The only thing I might need to do is go after them for service connection for Pes Cavus and ankle equinus. Both showed in 1996 and prior to going to boot camp in 1991 I had no conditions in my feet.

They also finished off the denial of A&A by clouding it with the so called non-service connections:

You do not meet the schedular requirement for consideration of this benefit, as you are not rated service-connected disabled at 100%. (First off you don't even need to have 100% rating for A&A. I'm sure they don't give it out without it but you don't need it per law. The worst part is I am TDIU 100%!)

While there is evidence that you currently require assistance from another person (I.E. your wife) to help you perform some daily activities of living this is both due to service connected and non-service connected disabilities (lower extremity weakness problems, some of which are service related and some that are not, as previously described.) Since your level of impairment requiring aid and attendence is not soley attributed to your service connected conditions, when your case is considered as a whole, your case is not being referred for extra-schedular consideration of entitlement to this benefit.

So they didn't see I was 100% (TDIU) and they didn't read my service connection from the BVA properly. Once again I must do the job for the VARO. I don't even see where they could have screwed up since right in the rating it says bilateral straight leg raises. All my VA records show service connection for lower extremity weakness not lower extremity weakness on the right side. The neurological condition is on appeal too. I don't even want to get started on that.

[I Was Denied Again?]

Okay I found the regs for the higher levels of A&A:

So it looks like you have to be SMC (o) or (p) and meet all the other requirements. It seems in your case you probably meet the requirements for regular A&A based on the dangers of your environment with your seizures etc. The problem is when they consider the criteria there is a part that states they need to consider your disability picture as a whole or something like that. That is where they will come in and say since your not 100% that your disability is not that bad. This is crap but it seems without 100% you wont get it. I hope this helps. (;) Basic criteria for the higher level aid and attendance allowance. (1) A veteran is entitled to the higher level aid and attendance allowance authorized by §3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met:

(i) The veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p).

(ii) The veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section.

(iii) The veteran needs a “higher level of care” (as defined in paragraph (:D(2) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.

(2) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof.

(3) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (B)(2) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice.

(4) A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional.

(5) The provisions of paragraph (B) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial.

(Authority: 38 U.S.C. 501, 1114®(2)) © Attendance by relative. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.

[I Was Denied Again?]

Hey Josh,

You make me feel like a crook for going after A&A and I believe I rate it. Your going to have to get something 100% first. Even though they say for A&A you don't need it going for higher levels of A&A your going to need it. I had what I thought was a lock on my A&A exam and they denied me on BS. They even stated I'm not 100% service connected and I'm TDIU 100%.

You definitely need to be 100% somehow. This 90% for you is BS. They either need to get you TDIU or rate one of your connections 100%. The problem with going after higher levels of A&A is that you need to have SMC at a high level. I've studied the regs because I basically quailify for SMC (s) and SMC (l) but that keep denying me. So you need to get 100% first.

Once you get 100% you will need some SMC higher than (l). I think you need to have (m) or (n). I can look it up though. You may be better off getting a lawyer now that they are allowed at the VAROs. Even if you have to pay them something going from 90% to 100% is over $1000. So if you already have 24 months on your appeal the lawyers fee will be well worth it.

I keep running into OIF vets that are 90%. They must have some hidden directive to stop you there. You have a complex case here with many different avenues. I have used an attorney at the CAVC and have one for the BVA right now. Do you want me to get you some names of lawyers that operate at the VARO?

[Smc Benefits]

Pete,

How did you get housebound? Was it a VA examiner stating you don't leave except for doc appointments based on your 100%sc?

I think you shoud file for A&A and get a VARO exam. My A&A varo examiner told me straight up she had never done this type of C&P exam. To my amazement she actually took what my wife and I told her as clinically correct and not subjective. She gave me a great C&P diagnosis if we can even say that. I mean if you rate A&A obviously your life is not great. The fact you have nurses etc. coming up is evidence that you probably rate the higher payout of SMC (l) which is A&A. The rating states you do not need to be in constant need of aid and attendence.

Didn't you say you take pain killers? I may be mixing you with someone else but if not my examiner wrote a thing about my oxycodone and oxycontin side effects and how they make it so my wife or someone else needs to be around me 24/7. Of course my VARO found BS to shoot me down but what's new.

I looked at many A&A claims at the BVA and basically they look for things like can you drive, did you show up at ther exam with someone? Of course you need to have the evidence too but I've seen these questions posed time after time.

I basically only meet the criteria for the endangerment part but I have seen cases won on only that such as Vets with mental aliments.

[P&t Appeal]

Hi Everyone,

I am currently appealing to try and get P&T. I know the best evidence is to have a doc say you can’t work again. I don’t have that exact statement but I am looking for opinions to see how strong my evidence is.

I am TDIU 100% from March 2009. I am 80% scheduler, which should either end up at 90 or 100 within a year or two from appeals.

I am 40% back / 10% lower extremity weakness (both jointly remanded from the CAVC on 12-09 from 2000), 50% mental (on appeal), 30% asthma, 10% right foot injury (jointly remanded from the CAVC on 12-09 from 2000), 0% left foot injury (jointly remanded from the CAVC on 12-09 from 2000), 0% chronic right testicle pain (jointly remanded from the CAVC on 12-09 from 2000), 0% hypertension (On appeal from 2002), 0% eczema (On appeal from 2002), 0% residuals of an appendectomy.

The TDIU even though the VARO concludes it’s from multiple service connections based on a statement from a mental examiner is from my back. Both feet were broken in service. My back appeared in 1997. L3-S1 showed up as spent on a 97 MRI. I had my first surgery in 2000 an L3-4 and L4-5 hemi-discectomy and hemi-laminectomy. I was service connected in 2000 for my back at 20%. From 2000 to 2006 I went to chiropractors, acupuncturists, holistic healers, and the VA. It got so bad in 2006 I went to a civilian pain center. It ended up that in addition to the 3 discs being spent I had scar tissue from the 2000 surgery that was entrapping the nerve roots at each level. From 2007 – 2009 I was still working full time in severe pain. I took opiates 3 times a day in addition to ativan, buspar, and Zoloft for my mental.

In March 2009 I had an L3-S1 fusion and ended up coming out with my pain increased by 2. I also started having more numbness and weakness in my legs resulting in many falls. I basically am only a little comfortable in my bed. I have been on oxycodone and oxycontin since 2008. Prior to that I was on vicodin and perecet. In a September 16th decision by the VARO I was awarded temp 100% for the surgery, etc., TDIU, SMC, and TDIU. This decision was never mailed to me but the VARO made me a copy. I received a September 18th decision with temp 100%, temp SMC, TDIU, and no P&T. So after review they yanked my P&T and SMC. I appealed both and never received an anser about the P&T but was told that I didn’t qualify for SMC (s) because my TDIU was based on multiple service connections. Days later I was turned done for A&A based on non-service connected disabilities that I don’t have. I am appealing everything and here is my evidence:

1. A denial letter from VA voc rehab stating the Veteran was denied chapter 31 benefits based on being currently unable to work competitively and an achievement of a vocational goal not being feasible.

2. The VA’s first rating awarding me P&T. I am asking for resolution of the benefit of the doubt based on the fact the rater who had intimate knowledge with my case awarded my P&T and then a review of VA employees who could not have had the detailed knowledge the rater did took it away.

3. A social security denial stating I could not work in the IT Security field anymore. I had 14 years in that field after the Marines. Even though all I did was sit at a desk or stand in front of computers I was told I could not do this anymore. They did however state I could do something else. This is on appeal and I have my hearing in July. So hopefully I’ll be able to add social security benefits by the time the appeal is decided.

4. Two social security forms (physical) filled out by my surgeon and civilian PCP basically saying the same thing. No driving, no lifting, no leaving the house alone, no walking over rough surface, need for a cane, no sitting, no standing.

5. A social security form (mental) stating my condition has worsens since first starting to see me in 2002. I have major depression and generalized anxiety disorder. I have a serious problem with using appropriate coping skills to meet ordinary demands of a work environment, handling frustration appropriately, and performing work activity on a sustained basis (8 hrs a day, 5 days a week), an obvious problem with caring for physical needs, asking questions or requesting assistance, and getting along with others without distracting them or exhibiting behavioral extremes. They were all noted as daily issues. He also wrote in comments that I was significantly physically disabled from my back. This was filled out by my regular VA psychiatrist.

6. A letter from current therapist stating he had been counseling me for issues related to severe back pain, leg pain, panic and hypertensive attacks related to his military service. He stated he believed that my disabilities have resulted in significant impairment on his abilities to hold a job. He stated I frequently spoke about how frustrating it was to function effectively at his job while in pain. In addition, he has had to manage acute anxiety and guilt because of the significant amount of time he has been out sick trying to manage his pain. Moreover, the stress of trying to hold a job and balance the responsibilities of home life, while in acute pain, has been a source of great anxiety and stress for me. I am aware the patient is on high doses of narcotics, anti-depressants, and tranquilizers and yet his symptoms continue to be severe. While I am not a physician I believe this is likely to an increasing tolerance to those medications. The PT has related to me how very frustrating it has been to struggle at work, and as a husband and father. This frustration shows up as depressive episodes and angry outburst that put a strain on him and those relationships. The therapist has a PH.D.

7. The medical records and history of a back condition for the last 13 years with 2 failed surgeries.

8. A recent aid and attendance exam at the VA. The examiner concluded that the Veteran was in need of 24/7 supervision from his wife because of the dangers of his environment and that his spine aliment has mod/severe functional impairment as a result of decreased range of motion and subjective complaints.

9. A 2008 VA mental exam stating the Veteran describes a worsening of symptoms compared to his presentation at his last exam. He continues to experience anxiety and panic symptoms and some depressive symptoms, which have been already causally linked to his service connected back condition. Further confidence in diagnostic formulation at this time is limited by the Veteran’s chronic, heavy use of prescription narcotics, tranquilizers, and alcohol. It is more likely than not that chronic pain, his underlying psychiatric condition, and medication effects are all contributing to increased irritability and impaired judgment. In total the Veteran is suffering from mild to moderate impairment in vocational function and significant impairment in social function.

10. A 2009 mental examiner states it is as least as likely as not that your mental condition alone keeps you from working, but when combined with your anxiety/depressive symptoms and viewed in whole, you suffer major impairment.

11. A May 2009 letter from my employer stating I was being fired because I could not come back to work. They understood it was my back and because they thought it was unlikely I would be able to return in the unseen future.

12. A 2006 letter from an employer stating that during a 1 year six month contract I missed 12 weeks of work.

I am also in the ILP of voc rehab is that is worth anything.

[Hypertension(high Blood Pressure)]

Hey Vet,

How is your evidence for your back. I think the back is the most frustrating or one of the most to get increases. All my VARO ever cared about was bending. I was awarded 20% out of the gate after my first failed surgery. I guess I should have been happy for that. They then ignored positive straight leg exams and other neurological tests that should have given me at least 10% for each leg after 2002. I have DDD at L3-S1. I just had L3-S1 removed last March. Now I am even worse. I finally got my 20% back down to the BVA and they ignored 3 years of pain center evidence including a ton of nerve blocks and heavy opiates. I was finally diagnosed with nerve entrapement in 2006 from the scar tissue of my first surgery. All along because I was a young guy and could do the walk on toes and heels test they kept saying I had no neurological component. They even had a neurologist examine me twice and on each exam I had positive straight leg exams on each side and she still said I had no neurological component. I had two IMO's done also stating that I couldn't sit, walk, or stand for long periods of time for years based on a neurological component of my L3-S1 discs.

In December 2009 the CAVC finally issued a joint remand for my back. Oh the BVA did add a lower extremity weakness sc given me 10%. At minimal they should have given it to me for both legs. With the pain center evidence I should rate 40% each leg. I had an independent exam done in 2006 and 2009 which showed all my lower extremity muscle groups were unsymmetrical. He also documented muscle wasting and atrophy and tied each group back to my discs L3-S1. I still have the nurse practiners at the VA state I have no neurological component even with all that evidence LOL.

Then they add that stupid bed rest prescribed by a doctor to screw us even further. Who the hell first off can make it to the ER when your back locks off. Second even when I have no doctor at the VA ever issued bed rest. If they only realized how disabling a back can be. Let me know if you want any help with your back case. I feel like I am a VA lawyer now since I have been working my back case for 10 years now.

[Pain Is Driving Me Crazy, Any Thoughts?]

Thanks Old Joe,

Yeah since I've been on oxycodone for so long, I can't take methdone, and morphine does't seem to do much it looks like I only have the Dilaudid and Fentanyl left. I read somewhere its Fentanyl that is the strongest and then Dilaudid

[From Bizarre Denial To Downout False Data]

Hey Delta,

Yes they are saying the artithis is from my left and right feet fractures I suffered in service. No I did not suffer any other tramau to my feet in service. I just sucked up the pain from humping up the mountains and running. The Marine way, pain is weakness leaving the body. In my case it was your life is going to suck from your mid 20's on. I didn't realize that could be rated seperately. I'll have to file just to make sure. Thanks.

[Hypertension(high Blood Pressure)]

Hey Vet,

Get it service connected and just keep appealing if they deny you. There is a chance the BVA will give you the benefit of the doubt as long as you have 5 or readings in the rating. By the way VA law states that if you don't meet a 10% rating and there is no 0% rating they give you 0%.

I have been sc'd for hypertension since 2002. I think I've appealed like 4 times at the RO. It's headed down to the BVA now. They gave me sc secondary to my back pain based on one of my doctors statements. I was consistently 140-150 / 90s from 1997-2006. In 2006 I went on opiates for my back and the combo of drugs I take has made me mostly in the 120/80 realm. I have been on BP meds since 1997. I have like 5 or 6 readings on different days over */100. I only have a few 160/* readings. However I have been given a BP reader from the VA, have gone in for reading checks over the years, and my meds have been raised many times based on high 90s or over 100 reading. From what I have seen at the BVA I'm hoping to get the benefit of the doubt and get 10%. I also have a bunch of lay statements from my wife about my readings at home.

If you look at BVA cases for 10% they look at your readings, whether you take continous meds, and other factors like chest pains or pains in the eyes. My problem is he first time a doc saw my BP in the 90s I got put on meds. So I can't say I have a history of being over */100. However since my */100 readings have been while on meds and everything else (BP logs, BP machines, etc.) I'm hoping for the resolution of reasonable doubt I have seen them issue in cases like mine.

The biggest thing though like someone said is the service connection. That way if you do die god forbid from a heart attack and you haven't been 100% for 10 or 20 years your dependents may still be able to get DIC.

[From Bizarre Denial To Downout False Data]

Hey James,

Thanks for your post. I am TDIU based only on service connections. I did recieve SMS (s) when I was temp 100% for my back. I appealed them taking it away and they stated my TDIU was for multiple service connections and not just my back. I am 50% back, 50% mental, 10% right foot, bunch of 0's. So they said I did not quailify for the +60. The rating I posted does not have the housebound decision. So the VA examiner says I am in need of 24/7 supervision because of possible injury to myself due to the harzards of my environment. She also stated I was housebound based on my conditions. So they blew off housebound saying I didn't have one 100% rating and they blew off A&A actually saying I'm not 100% service connected when I am TDIU LOL. They also brought up these fictious non-service connected aliments which there is no medical evidence for because I've never been seen for any of them except the leg condition. The leg condition however is already service connected under my back as lower extremity weakness. I had a low level exam done about a year ago tying all my lower extremity muscle groups back to my 3 removed discs stating they were all unsymentrical and had atropy and muscle wasting. Now the VA is stating I have another condition in my legs. Both my feet are service connected also. They have reaked some havoc on my lower extremities also so maybe that is where they are pulling this crap from.

Either way I'm writing the appeal as we speak. I think I'll actually have a hearing with a DRO so I can lay my evidence on the table and ask them on the record where the hell these non-service connections are coming from. Funny when I went after TDIU they didn't bring these up. Now I want an extra $600 a month that I rate and they screw with me.

[From Bizarre Denial To Downout False Data]

Thanks sixth and Pete,

I didn't even know those programs existed. I guess I'm a little freaked with this decision not because I was denied but because I don't have any significant non-service connected conditions. Hell I got TDIU and they didn't even try to play this BS that I have non-service connections contributing to my disability. I guess I have a little taste of what the people go through that do have some serious non-service connections. Seems like a very easy way to shoot down benefits.