dav_marine72

Windy city you are wrong. See bradley vs peake 2008 cavc decision. That allows TDIU recieptents to recieve housebound (s) etc. Look at the regs I quoted. A&A actually does not even need one 100%. SMC (s) says it does but the bradley vs peake overturned it.

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At first when I found out I was denied A&A my service officer told me that it was based on not meeting the criteria. Considering that the VA examiner concluded I needed 24/7 supervision from my wife based on the dangers of my environment I thought this reason a little odd. Today I recieved the decision letter and all I can say is I am in shock. I have recieved some pretty crazy denials before but this takes the cake. I'll highlight the insanity: It's being concluded that I have active service connected and non-service connected aliments I am being treated for. Now other than GERD this is a little confusing to me. The only possiblity they can be using is my feet problems. The last page attached in this scan has a diagnosis from a civilan podiatrist I saw last year. Just some qucik background on the feet. I broke my right foot in boot camp and my left foot in Marine Combat Training. I had no idea why this happens because I never had any issues with my feet prior to service. My meps physical also did not include any feet disorders. So when I get discharged in 95 I filed for service connections for my feet. I get connected at 10% for my right and 0% for my left. Less than a year after I was out I was diagnosed by VA podiatry with Pes Cavus (high arch feet) and ankle equinus. Over the years these diagnoses would go from mild to severe. I was also diagnosed with nerve entrapment on the tops of my feet based on the in service injuries. I guess since my feet were fine prior to going to the USMC I just assumed all these aliments would be a part of my service connections stated residuals of right and left foot injuries. Anyway in 1997 I started to get leg and back pains. By 2000 they were severe and I had my first back surgery. I asked for service connection at that time for my back. I had a podiatrist write a letter saying it was possible that my pes cavus rigid feet caused my back problems from all the humping and running in the Corps. My surgeon also wrote a letter saying it was possible the training in the Marines caused my back to go out. Since I had no history of back issues prior to service and then within 1 1/2 after getting discharged my L3-S1 were rotted and I was told my back looked like a man who had worked hard labor his whole life and was 65 yr old. SO the VA examiner reports that he believes my back was injured directly and seocndary from my feet based on the way I walk. He stated my gait included me shifting my weight off of the third metatarsals which were the ones I fractured. They ended up giving me direct service connection. Last but not least in 2009 I had a low level back exam done that the VA had never done even though it's in their training manual on IVDS. The civilan dr who examined me measured my muscle groups in my lower extremities and found they were unsymmetrical. He opted I had muscle wasting and atrophy and tied each muscle group back to one of 3 discs taken out of my back. He stated this exam was concurrent with a similar exam he gave me in 2006. Now out of somewhere and I think it's the equinus the VA is stating I have a neurological condition in my legs that is not service connected. I was service connected in 2008 back to 2002 for lower extremity weakness based on straight leg raises. Now to combat this so called non-service connected injures which they don't really tell me about other than the legs I am going to go back to the podiatrist with all my records and ask for a nexus letter to connect Pes Cavus and ankle equinus to my feet or service. FYI Pes Cavus causes pressure on the metatarsal heads hence why I fractures 1 in each foot. Ankle equinus is directly connected to Pes Cavus as well. I probably had Pes Cavus prior to service but I had no issues and even if I did there is no doubt service aggravated it. I also had xrays at the VA in 2009 and they found arthitis in each foot in the 3rd metatarsal area. Next wacked statement. They state I am not service connected for a right knee, left ankle sprain, fracture left foot, and the neurological legs. I already addressed the legs. As far as right knee, I have no problems with my right knee. As far as left ankle sprain goes the VA podiatrist asked me if I had ankle sprains during service and over the years based on my feet. I said yes but they have no functional impairment soooooooo what the hell? Then there is the fracture left foot. LOL this one kills me. I am service connected for a fracture of the left foot. They also state that I do not meet the schedular requirment for consideration of this benefit, as you are not rated service connected disabled at 100%. I know these pain killers sometimes put me in lala land but as I recall as of March 2009 I am 80% schedular and TDIU 100%. Are they on crack? Then to make it even worse you don't even need to be 100% to be considered for A&A. Under the Manual M21-1MR, Part IV, subpart ii, 2.H.44© 8.13b, if a disability is rated less than 100% but a recent examination shows that the disability is so severe as to demonstrate a need for regular A&A, the claim should be submitted to the VA central office for an advisory opinion on whether to grant A&A. Lets not forgot Bradley vs Peake and or VA Gen. Coun. Prec. 66-91 (Aug. 15, 1991) and Manual M21-1MR part IV, subpart ii.2.H(a) which allows 38 CFR 4.16 (TDIU) to be used as a basis for entitlement to SMC. Once again they finally deny me based on having non-service connections. So glad I need to do their jobs for them. Hopefully I won't die from the stress so when I win these claims my family will be able to enjoy some of the extra money.

Yes I will let you now Tuesday. I appreciate your help. I'm not sure if he goes for where he will start me off at. I take 3 40mg oxycontins and 3 30mg oxycodones a day now. I have been on oxycodone since 2007. I used to just take 3 of those. Then a 40mg oxy was added. Then 2 and then 3 after my last surgery in March of last year. So I've basically been on oxy of some sort for 3 years.

Thanks for the link Berta. No they did not mention it even though I pointed it out to them. These days they flat out do not answer anything I ask them. With the P&T I stated if you feel I am not P&T please explain the medical evidence you have which favors me not to be ---------- no answer in their letter except, the Veteran was 100% temp from March 2009 to July 2009 based on an L3-S1 fusion. We expect this condition to improve so the 40% rating found for the Veteran's back during his TDIU exam is temporary. With Housebound and A&A. I referenced Bradley vs. Peake. I also told them if they felt I was TDIU from multiple SCs could they show medical evidence proving that my back was not so disabling that it alone rendered me TDIU. Hence leaving Mental 50% + Asthma 30% + Right 10% = + 70. Then I asked if they did not agree with the back being my cause of TDIU (which it is because after my last surgery I haven't worked since) why didn't I rate on housebound and not the 60+ which is the only criteria they considered for SMC (s). I recieved no answers to any of these questions. Trying not to act like the VA is out to get anyone is very hard with no repsonses. The VARO know that because they are not addressing my issues properly the BVA will almost definitely remand. So yes down the road I will win someday. But why the hell should we have to wait years and years because of incompetence. I love how my VARO sat around and had enough time to take away my P&T but apparently responding to direct questions posed in my NODs does not require their time.

Hey Berta, Thanks as always. I don't actually have the letter I talked with my SO. He said it just said I did meet all the criteria. They denied me housebound a couple of weeks earlier based on my TDIU award which they say was not just because of my back. They just stated it was from multiple service connections. Meaning my mental (50%) and asthma (30%) which add to 70% can't be considered. My back right now is 40% ortho and 10% neuro. That will be changing whenever my remands from the CAVC get addressed. They are going to have to rate me at least 40% for each leg. I spent 3 years of getting monthly nerve blocks. I always had a through exam done by a civilan who measured my lower extremity muscle groups. All came back unsymmetrical. He was able to tie each one back to the 3 screwed up discs in my back. Excuse me the 3 I used to have before the fusion. He also stated atrophy and muscle wasting of all muscle groups back to 2006. My surgeon and my civilan PCP have ordered me not to drive because they don't want me killing someone or my self. All my social security paperwork (which the VARO has) shows that I can't leave the house alone, etc. The did not consider the statement from my wife or my mother. My mother stays with me when my wife goes out. My wife testified that I almost burned down the house 3 times and that I created $$$ of damage after leaving a sink running after I washed my hands. I was in so much pain I forgot to turn off the facet. It leaked into the garage below and rotted the sheet rock. I also have problems with dizziness and stability which is documented side effects from oxycontin and oxycodone. I think ativan has this too. I am definitely appealing and following everyone's advice. I get so frustrated at what seems to be a direct action to give me a little compensation as possible. As in my P&T appeal that is on going. If you remember that is when they gave to me (gave me a copy of the rating with it) and then mailed me one with it dropped. Their excuse was that I would get better down the road.

I shall appeal until I die! Sorry had to vent earlier.

Hey Halos, Your talking to a Marine that had to have 8 MRIs since 1997. I freaked out the first time they put me in and had to re-schedule. Everytime after that I took 2 xanax like Pete said and I could care less what they did to me. I used to freak out before going though. I even had a disc-o-gram done. That's where they lay you on a table on your stomach and stick a huge needle into your discs and blow them up. They are trying to re-create your pain so no meds until after the exam. You'll get through it.

Again my VARO instead of following the law that states they should try to give us all benefits and pay us the maximum the law allows from our evidence shoots me down again. This time they denied me A&A. Of course this has an element of a judgement call to it so that means they screw me as always. Even though the law states you do not need to meet all the criteria of A&A but to consider the Veteran's disability as a whole I was shot down. Granted I only rated on the danger to my environment criteria but I've found many awarded under this same element. Here was my C&P examiner's diagnosis: Chronic pain secondary to failed L3-S1 fusion requiring increasing doses of narcotics that has resulted in confusion, dizziness, and problems with balance. PT needs 24/7 supervision from his wife because he is at risk of injury to himself, and reports damage to their home as a result of some of the things he has done (leaving the water running, burning the heating pad.) PT reports being homebound because of chronic pain and panic attacks. PT has mod/severe functional impairment as a result of decreased ROM and sunbjective complaints. PT is currently unemployed and his wife takes care of the finances. My VARO however contended I did not meet all the criteria for A&A. However the regs clearly state: It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. So stating I don't meet all the criteria is a bunch of crap. I am so tired of fighting these people. Until because I am a Marine I have fought and not blinked an eye. Now with 10 service connections and 9 active appeals, 4 since 2000 I just don't want to fight anymore. Not only have I lost the ability to work sinking my pride lower and lower I now have to be kicked on a regular basis by people I'm sure that think I'm a scammer or something. I'd like them to feel the severe pain 24/7 I do and see the look on their children's faces when you tell them you can't hold them because your back and legs hurt so bad. I just can't take this shit anymore.

Hi Everyone, I was service connected for a right and left foot injury out of the gate when I was discharged in 1995. I broke my right foot in boot camp and got a stress fracture in my left at Marine Combat Training. Come to find out over the years that my feet seem to have been the cause of most of my medical misery. Prior to entering service I had nthing wrong with my feet and never saw a doc for them. The docs figured out that I had severe pes cavus which led to the fractures and my L3-S1 discs rotting out. This was based on all the running and humping out at old camp horno at Pendleton. Anyway they gave me 10% for the right intially and 0% for the left. My right always seemed worse and at the time I wasn't feeling the effects of my back so I acceted the decisions. In 2000 I asked for an increase for my right and left feet based on the severity of each getting worse. By the time I asked for the increase I had been seen from 96-00 about 10-15 times for my feet. In 1996 less than a year after discharge the VA diagnosed me with pes cavus, equinus, and rigid feet. They tried orthodics and special shoes but it made my feet worse. In 1997 I was diagnosed with pes cavus, equinus, and nerve entrapment on the top of my feet. For those that don't know pes cavus is high arch feet. So any shoes or sneakers I wear kill the top of my feet. Then in early 2000 in addtion to the pes cavus, equinus, and nerve entrapment the civilan doc diagnosed me with tarsal tunnel syndrome. He gaveme steroid shots in both feet but they did nothing. He wanted to operate but I refused. In 2002 I started seeing the VA podiatry again and they gave me special shoes and new orthodics. I was denied all along the way for any increases. I had a hearing at the RO in 2004 where I asked why they could not try to incorporate my pes cavus, equinus, or nerve entrapment either into the rating or see if they could rate me higher based on any of those aliments. She went back and reviewed the case. In her decision she stated that my pes cavus, equinus, and nerve in trapment could not be linked to my feet injuries in service. She said I would need to try and file service connections for those if I thought they were secondaries. Well years later I found the VA treatment notes showing the dagnosis of pes cavus and equinus less than a year out of service. My feet made their way to the BVA and got shot down during the mean time. Then they went to the CAVC and got sent back on joint remands. Because of all my back problems I put going to podiatry on hold for years. In 2009 I ended up going to a civilan and VA podiatrists. I was diagnosed with severe pes cavus, severe equinus with 0% dorsflexion of my ankles (normal is 10%), arthitis (by xray), and nerve entrapment of the tops of both feet. So my main question here is since I was diagnosed with pes cavus and equinus back in 96 less than a year out of service and had no feet problems prior to service don't they have to consider all these other feet problems in my ratings?

Thanks blanco, I'm going to the doc on Tuesday. I'm going to ask for that exact combo. I'm going to tell him my quaility of life sucks right now. Did you start out on 8mg of the Dill?

Thanks Testvet and Broncovet, Yes I appealed well within the time period. I think you gave me what I was looking for Bronvet. I want to use that as evidence to bring up reasonable doubt I just didn't have the puzzle totally assembled. I actually got a response two weeks ago from the VARO and where I appealed P&T and asked why they changed it all they did was regeritate the first decision saying I had temp 100% for my back due to my surgery for 3 months. I was like okay I already know that where is the P&T question. They also awarded me the lowest convelesent leave even though my surgeon said totally disabled and unable to work for 6 months. The problem was a nurse for his office had filled out another form stating 3-6 months of no work. The reason it matters is because I recieved SMC (S) during the 100% temp period and then it was taken away. I did appeal it based on bradley vs peake but until my ratings change for my back from 50% to 60% the are trying to say I was TDIU due to my back and mental. My SO said because my temp 100% started in March 2009 and they gave me TDIU in May 2009 I can't appeal the temp 100% rating. I don't know about that one.

Actually my service officer went up to the RO to find out what was going on. He was told by the manager that they had reviewed my case and did not agree with the rater. They said I was too young and there was a good chance I would get better. My SO explained that I had just had my second failed surgery an L3-S1 fusion and I just couldn't work anymore. He told them I worked for years in severe pain and the issue had been going on for 13 years. Then he went over to a DRO he knows and asked her about my case. She said you could appeal it but she wouldn't overturn the rating. She stated that she had to work for the manager and if she decided I rated P&T it would be bad for her seeing that had to work together everyday. He explained I had a wife and three children. She said there was nothing they could do. So after that he called me pissed off and said forget DRO's etc. lets just go to the BVA. He said it was a political issue and they would not budge.

That is correct. I just recieved a different rating letter with the P&T dropped off of it.

Tell you what. I did all the mentioned in the first post and was flat out denied. The rep actually said to me how can you be retiring at 37. I was always nice and did everything for them. They came back and said I couldn't do my old job which was IT security sitting at a desk but that since I had my arms and hands I could find another job. They admitted I couldn't stand long, sit long, or walk long. So I send congrats to you but I really think its the state, the person, etc. I finally have my hearing in July so hopefully I will win. I hired a lawyer without blinking an eye.

In 2004 and 2005 I have 7 appeals going on. The VARO splits the appeals into what seems to be 2 different claims. The first claim including a back condition, right and left feet conditions, and a chronic right testicle pain issue. Claim two includes hypertension, ezcema, and a mental condition. By 2005 all were service connected and appealed for increases. I recieve a appeal status letter that includes all the above conditions except the mental. I put on the form that no, the last decision does not satisfy any of my claims. I appealed the mental on a seperate NOD. Next thing I know I get a letter stating my case is headed down to the BVA. All the issues had gone through a couple of appeals and a DRO review at the VARO. To cover my butt I physically go into the VARO and make sure what issues are headed to the BVA. The rep tells me my back condition, my left and right feet, right testicle pain, eczema, and hypertension. He says the mental is still here because it was just awarded service connection for 30% and I appealed that rating. I keep sending evidence for all issues to the BVA as I get it. I even sent a summary to the BVA in January of 2006 which highlighted the six issues and my evidence list. This letter was recieved within the one year appeal period by the way. So two years go by and I get a crappy decision from the BVA and guess what? No eczema or hypertension in the decision. So I go back to the VARO and give them the evidence I have referenced above and still have not recieved a decision from them. They just skirt the question and make pretend these two issues were newly brought up for an increase when they actually should be appealed on intial service connection. Does anyone know if this quailifies for a CUE? If they try to say they did not get the appeal letter in 2005 would the document I sent to the BVA still quailify as a NOD because I sent it within the one year appeal period? Thanks.

Hi Everyone, I am just curious about my P&T claim. I don't know who remembers but I was intially granted TDIU and P&T based on an intial RO decision. This decision was giving to my SO and I got a copy of it from the RO. However, the decision mailed to me omitted the P&T part. Is there any legality I can leverage with this copy? In the copy I have they award dependents educational assistance under 38 U.S.C charter 35. Here what it stated: Eligability to dependents educational assistance is derived from a Veteran who was discharged under other than dishonorable conditions; and has a permanent and total service connected disability. Based on a grant of individual unemployability basic eligability to dependents educational assistance is established from May 19, 2009. I know they can cry this was a draft just curious if this has any bearing or not. Thanks.

Luckily I go to a civilan pain center and my doc is cool. He will try anything if it helps me. Blanco the only thing that worries me with the tylenol is the liver affects. I believe that would have some form of aceamphine (spelling) no? Anyone try the fentol patches?

Thanks hoppy, Definitely good thoughts. I just get so damn tired of trying to document this crap when I have 10 service connections. I know the deal though if there is no evidence you don't get squat. People may wonder why I am being such a stickler on a 10 % rating. Thing is from 2000-2009 I was 50%, 70%, and 80% before 100%. I have 8 appeals during that period. A 10% rating could end up tipping the scale to more back pay. Thanks for your input.

You think stepping down so I can get relief from the opiates again is the best bet?

Yes I see a shrink at the VA. He prescibes me the zoloft, ativan, and buspar. I actually see my pain doc in a week. He's pretty cool about uping the doses. I don't know about this time considering how high I'm starting to get.

Hi Everyone, I have been in back and leg pain for 14 years. The last six years have been the worst. I have been on opiates since 2006. I had a 3 level L3-S1 fusion in 2009 which ended up making my pain worse. I have been on 30 mg oxycodone x 3 a day and oxycontin 40 mg x 3 a day for quite a while. I switch to 60 mg morphine x 2 a day sometimes in place of the oxycontin. I am at the point where I am getting almost no pain relief. I tried methadone and it worked awesome. Then in a few days my asthma went crazy. I tried this on 5 different trials with the same result. The pain is so bad now my life just sucks. I can't remember not being in pain and I can't imagine going through life like this. I'm 37 and have been in pain since I was 22. I still go to an civilan pain clinic so all the options are available for me. Does anyone have any suggestions? Thanks. FYI I also take 1mg of ativan x 3 a day, 2 10mg buspar x 4 a day, 200mg zoloft 1 x a day.

Thanks Berta, I did submit photographs and they just ignored them. The case is a good reference thanks.

Hi Everyone, My RO has agreed to an informal hearing with my SO for my many issues with them. One of them is my eczema. I was service connected in 2002 and have been 0% ever since. I appealed the whole way. Because of a mix-up it did not go to the BVA in 2008. That's another story but what I am looking for is some regs to use so my SO can present my case to the RO. I always have eczema on my chest and head. Sometimes it is on my arms too. The problem with my head is my hair tends to hide it. I have had three exams for this. One exam noted my chest and scalp. The other two only noted my chest. I have been prescribed steroid creme since the service connection but never oral meds. Now during regular exams at the VA it has been noted that patches were on my arms, chest, and head. Derm even took a biopsy of a patch on my head. Now the regs read like this for the time I was service connected: With exfoliation, exudation or itching, if involving an exposed surface or extensive area ....... 10% I mean come on how can I not meet this requirement. I also remember an old SO bringing up something about a court case which dealt with the fact that if the symptoms during an exam were not in full force as long as they had been docuemented they had to use that instead of just the examiners diagnosis. Here is what the stated when they first denied me a compensatable %: Service connection for eczema has been established as directly related to military service. Service medical records show that you were seen for a history of worsening dry scalp symsptoms in January 1992. Examination showed positive pruritus, erythema, and flaking. The assessment was dry scalp. Dr. Silverstein documented a history of skin disorder in May 2000. VA medical records document a history of eczema involving the scalp, hands, and chest. The symptoms documented in these VA medical records are similar to those documented in your service medical records. While there is no medical opinion on file linking the current diagnosis of eczema to your inservice scalp condition, we find that the similarity of the location and symptoms, when combined with your report of a history of this problem throughout service and since your discharge from service, allows for the resolution of reasonable doubt in your favor in this case. Therefore service connection for eczema is establiashed. A noncompensable (0 percent) evaluation is assigned from July 22, 2002, the date we recieved your claim. A noncompensable evaluation is granted if the record shows dermatitis or eczema involving less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and: no more than topical therapy required during the past 12 month period. A higher evaluation of 10 percent is not warranted unless there is evidence of deratitis or ezcema involving at least 5 percent, but less than 20 percent, of exposed areas affected, or: intermittent systemic therapy such as corticosteriods or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12 month period. In your case VA progress notes document a history of eczema of the scalp, hands, and chest; however, examinations only documented a patch of eczema on the chest. During the May 2004 VA examination it was determined that there was not evidence of any obvious skin lesions over the scalp or chest. There has been no documentation in pertinent VA or private medical records that this condition has requires intermittent systemic therapy sich as corticosteriods or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12 month period. The record shows fluocinonide was prescribed; however, this was topical, not systemice, therapy. Therefore, an evaluation of no more than 0% is warranted at this time. Notice how they use the 2004 regs and not the relaxed 2002 regs I quoted in the beganing of the post? Any help would be appreicated. Thank you.

Hi Everyone, I met with my SO yesterday and we couldn't figure out if a vet can get housebound and A&A. After the A&A exam it's looking good I will get it. I also meet the criteria for housebound and the +60%. So do I just get SMC (L) for A&A or do they give me (S) too? I also saw something about having 50% + outside of your SMC aliment gets you a half step. Is that true? If so it's my back that caused my TDIU. I then have asthma 30%, mental 50%, and right foot injury 10% which I believe combines to 70%. Any help is apperciated.