theo

Berta, you're getting snippets, however the overall picture is amazing. The things the VA does is quite interesting. Never give UP!!! Theo

Hi Berta, I wanted to bring you up to date with my claim. July is when I received my Award letter and got rated 100% with the TDIU added to the 70%. I received back pay from Nov 07 to July 08. This was the grant for TDIU that the AMC gave me. As I mentioned before, I filed for the TDIU in 2000, that was denied in 2002 by the BVA along with the 1151. File to the Court of Appeals, which kick it back to BVA in 2003. During the course of 4-5 years, the 1151 and TDIU were separated so one would not hold the other up. This was an appeal court decision. The ANC was the one that granted the TDIU, which only went back let than a year for retro. I went to the VA field office on Aug 06 08 and filed a 21-4138 requesting: "Review claim for IU and for possible effective date reconsideration. Unemployability was denied in 2002, and just recently granted 08" Attached a copy of rating! I've had to call the VA asking if the 21-4138 was filed, I had a phone contact with Pheonix, who called for an audit. I recently called and another VA contact person said they were putting in another request which the VA is suppose to contact me within 5 days and explain to me what was the reason for not going back to the 2000 or 2002 date. No response. According to the Reason for Decision for is pretty much that I got the 30% for something that was rated 0% in 2002 and according to the last 2007 of 5 Comp & Pen exams over a 5 yr period is what the rater is using as a baseline for not going back to the filing date. In January the BVA denied the 1151. I've appealed. That's my update Thank you for being there Theo

You dont have an award letter yet you stated : That is correct "The allergic rhinitis is increased to 30% effective November 2007, Yes from the last of 3 C&P the Entitlement to Individual Unemployability is granted effective November 2007." Yes, the 30% qualifies me for IU. I originally applied for TDIU in 2000. I understand this was the negotiation between the DAV and VA. Also the TDIU is permanent and if I file any further action could effect the permanent status. Sounds like a treat, indicating to me that if I appeal the 1151 again which is said to have been denied could cause consequences. I also found out that I was denied service connection on a second file for HB, Dia, hearing loss due, exposure to radiation and other items. I was not told this until yesterday! The VA said to me that my rep should come look a the file and tell me whats happening. I complained and was told of the denial and did I receive a letter dated in June. NO!!!! I guess for some of us who are over 60, the treat is real. "Where did that info come from Theo?" The DAV had to sign off on it, since they are my Representatives. "DAV correspondence"-from past post regarding a post decision effective May 2008 When did you get this DAV letter ? June Have you sent in an Iris inqury? Don't know what Iris Inquiry is! The DAV based this info on something-and I find it odd that you would even hear from the DAV about a grant of benefits-before getting an award letter from the VA-still- it might make sense but where is the money? and the decision? I understand a letter was sent to me in June by someone at the VA level that I did not get that stating a decision has been decided and due to a back log, a letter should be forth coming 3 - 4 months. However I did not receive the letter that was read to me by a DAV rep. You cant really appeal it if you dont have the decision. As far as the VA records reflect, still 60% Thanks for your response Berta

"Question: The TDIU was filed in 2000, received by the VA in 2001, this required a 8940 form, correct. Why does the DAV keep asking me if I filed the form 8940 for TDIU?" That's a good question. If I was denied in 2000 TDIU it would be apparent I filed a form 8940. Maybe they lost their copy-do you still have your copy of the 8940? They don't keep copies, the DAV that is. Boy -I thought Buffalo RO was a mess- this is just ridiculous what you are going through- what RO is this? Washington, and LA It looks to me like they ignored your IMOs from Dr. Bash- my VARO has done this to me since 2004. What they did was mix up the 1151 with the TDIU and already service connected issue in order to deny the 1151. I did get an edditional 30% combined with 60% that get me to 70%. I did get the TDIU but only dated back to the last C&P. 9 months. I understand that they made the rating permanent at 100% pay, this is predicated on not filing anymore claims with the VA. the DAv Rep said that I might get a new rater out of college and see things different than the last rater. What a County I suggest you might do what I did- I got so fed up I sent my IMOs from Dr. Bash-I have two now-got the second one almost 2 years ago-and sent it to Dep Sec Mansfield -VA-in DC Send the Deputy Secretary Mansfield a cover letter stating you have no recourse but to ask him to submit your IMos from Dr. Bash because they have consistently ignored 3 of them from you. (Mansfield had to apologize to Dr Bash for something- look story some VA screw up a few years ago so he certainly does know who Dr. Bash is-when I did this I got a letter from the VSM at Buffalo confirming that the IMos went into my file with the letter from Mansfield's office-now they cannot say again that they didnt get them) maybe- It is bad enough they say we need competent medical evidence and we have to spend so much money to get these IMOs - and worse yet when the VA wont even consider them. Deputy Secretary Gordon Mansfield April 25, 2008 Department of Veterans Affairs 810 Vermont Avenue,NW Washington, D. C. 20420 I was told that the VA does not care if a Senator, Congress person gets involved, they are going to do whatever. If you do get them involved, you are punished by slow walking the file. Can Mansfield make a difference? FYI: My file was rated in May, send to Post D, no awards letter no increase as of today. Blessing to the Family

You dont have an award letter yet you state : No "The allergic rhinitis is increased to 30% effective November 2007, the Entitlement to Individual Unemployability is granted effective November 2007." Where did that info come from Theo? DAV correspondence Have you received any retro money yet? NO Question: The TDIU was filed in 2000, received by the VA in 2001, this required a 8940 form, correct. Why does the DAV keep asking me if I filed the form 8940 for TDIU? Common sense would tell you the form was submitted if I was denied to TDIU. "I've been advised by the DAV to take the additional percentage, afterwards file for a different effective date for the TDIU" I agree with that- what concerns me is this: "I have not received any award letter" I'm waiting on the letter!-- I've filed hardship, however they say that there is awaiting list for expedited cases. I've been on an expedite for 4 years in the development process, rating, and now the post determination Also it seemed to me the the remand regarded the issues of the Section 1151 claim was not in the BVAs jurisdiction-nor the AMc's jurisdiction - Section 1151 claims need bonafide medical proof of negligence or malpractice- I forget how your specific 1151 claim went. You can appeal their denial of the Section 1151. It will be the 3rd or 4th time I've appealed a denial to the VA after the 1151 and TDIU was remanded by the court of appeals. Dr. Bash wrote three opinion's regarding this issue regarding the 1151. What's happening is that they are mixing the 1151 and the TDIU together instead of rating the issues separately. My file has been to nearly every tiger team from st. Pete, Washington, virginia, and back. So many RO -VARO's and three or four C&P exams. Its like the insurance industry, Slow Walking the file! And you certainly can NOD the effective dates-when you get an award letter that you can NOD. NOD is Notice of Determination? Also Berta, I have another 2007 file that has been rated. This was as file that my primary Doctor asked me to submit for high blood, diabetes, agent orange, exposure to radiation as a missile tech, scar from surgery, and other items. I understand that it has been rated and sent to my washington where my file is being determined post. Then this will be processed. I don't know what this file has in it. I have not received a SSOC, but told the file was rated and also going to Post D. Thank you for responding.. I'll keep on top list reply.

It took me awhile to find your response. I wrote this this morning which may repeat myself.. Hadit has changed considerably in its user interface.. Need some feedback! Just recently in April 2008, VA grant me an additional 30% for a Allergic Rhinitis service connected condition previously rated of 0% in 2002 filed for in 2000. At that time I was granted 60% for inactive tuberculosis and restrictive abnormality and asthma. I was denied 1151 and TDIU which I appealed TDIU and 1151, it was remanded back to the BVA. I've posted my case in Hadit before. The TDIU and the 1151 is a court remand dating back to court docket 2004. The allergic rhinitis is increased to 30% effective November 2007, the Entitlement to Individual Unemployability is granted effective November 2007. The VA is trying to negate my letter from my VA doctors who state in two separate letter in 2007 and 2008 that "The veteran is unable to have a job that requires physical exertion due to his asthma, or any sedentary labor that make it difficult for him to use his medication including inhalers and nebulizer machine." However the rater choose to not address the issue and give me TDIU with the combined 70% instead of going back to the initial request for TDIU dating back to 2000 when I filed for it. The obstructive abnormality was noted in 1996. I've been advised by the DAV to take the additional percentage, afterwards file for a different effective date for the TDIU. The 1151 was denied. "Service-connective for degenerative disc disease of spine with sciatica secondary to steroid treatment for service-connected disability of emphysema with inactive pulmonary tuberculosis and restrictive abnormality and asthma is denied" What the have done is overlap the 1151 and the TDIU which confuses the issue. I have not received any award letter. I hope I can find the response faster.. ------------------------------some answers------------------ I'm now reading your response from June... Berta wrote:when was the formal TDIU form 21-8940 filed? Also-do you get SSA disability too- for the same SC conditions? No, I don't have enough SSA credit. Haven't worked since 1995. A lot depends on what the actual award letter states- Which award letter? 2002, or the one that is coming? The initial claim for TDIU was filed in 2000, the the decision was made in January 2001 to grant the 60% for Asthma, and deny the TDIU and the 1151. The Introduction says: " The Vet filed a new claim for total evaluation to the individual employablity benefit that was received on January 2001, He also submitted a claim for compensation due to additional disability of hernia from VA Kidney surgery under provision 38 USC 1151. Decision: 1. Evaluation for emphysema with inactive pulmonary tuberculosis and restrictive abnormality and asthma, which is current 10 percent disabling, is incresed to 60 percent effect January 2000. 2. Evaluation of allergic rhinitis, which is currently 0 percent disabling, is continued. I will spare you the rest.. Theo

Berta, theo here again after 2 yrs since our last communication. I've been patiently walking my post. I recently got a verbal from the DAV in washington that the VA will grant the IU regarding my claim, plus 30% for Rhinitis. Someone finally wrote the right letter regarding my service connected disability as it relates to my inability to work, to include sedentary work. My initial claim was filed in 2000, denied 1151, and TDIU, granted 60% from 10%. Appealed 1151 and TDIU. The issue was remanded by the court of appeals in 2003 to the BVA. The DAV argued the case before the court. I understand from speaking with the DAV, the 1151 will be denied, the IU granted, however the rep said the retro pay for the IU will not go back to the date of the claim. The DAV Rep said it may go back a year. In my records, I noticed that the Issue stated on the Docket No: 1. Entitlement to compensation under U.S.C.A. § 1151 (West 2002) for an incisional hernia based upon VA treatment in October 1994. 2. Entitlement to total disability evaluation base on individual unemployability. In a Transmittal of Decision of Board of Veterans' Appeals, a paragraph stated: "Further, the veteran's representative argued in a March 2003 statement that the veteran's lung condition was of such severity, depth and pesistence to warrant a total evaluation based on individual unemployability in and of itself. The record show that the veteran's service-connective emphysema with inactive pulmonary tuberculosis and restrictive abnormality and asthma." The restrictive abnormality was noted in 1996, however due to the incisional hernia, I've only be able to do spirometer. Over the years the incisional hernia and other issue was clouding the ability to work issue with other issues other than the service connected disability. Finally a doctor at the VA wrote the correct letter that acknowledged the statement quoted above. dated 2008 "The Veteran is unable to have a job that requires physical exertion due to his asthema, or any sedentary labor that would make it difficult for him to use his medications including his inhalers and nebulizer machine." I had a similar letter last year from the same Department with different language but really says the same: dated 2007 "The Veteran is unable to be employed in any joy that requires physical exertion due to his breathing limitations. In addition he is unable to do sedentary labor that would take him away from is medications, inhalers and nebulizer machine." FYI: The initial claim or increase, TDIU, and 1151, the effective date for the increase from 10% to 60%, denial for TDIU, 1151 is Feb 1, 2000. The DAV rep said for me to get the IU in place and then appeal the effective date of the retro pay. Is that wise? If I repeated myself, please excuse. I was trying to send an email directly but did not work,so I posted the not in the forum. Then I decided to send a reply to this email. Thanks Berta! Theo

Berta, theo here again after a year or so since our last communication. I've been patiently walking my post. I recently got a verbal from the DAV in Washington that the VA will grant the IU regarding my claim, plus 30% for Rhinitis. Someone finally wrote the right letter regarding my service connected disability as it relates to my inability to work, to include sedentary work. My initial claim was filed in 2000, denied 1151, and TDIU, granted 60% from 10%. Appealed 1151 and TDIU. The issue was remanded by the court of appeals in 2003 to the BVA. The DAV argued the case before the court. I understand from speaking with the DAV, the 1151 will be denied, the IU granted, however the rep said the retro pay for the IU will not go back to the date of the claim. The DAV Rep said it may go back a year. In my records, I noticed that the Issue stated on the Docket No: 1. Entitlement to compensation under U.S.C.A. § 1151 (West 2002) for an incisional hernia based upon VA treatment in October 1994. 2. Entitlement to total disability evaluation base on individual unemployability. In a Transmittal of Decision of Board of Veterans' Appeals, a paragraph stated: "Further, the veteran's representative argued in a March 2003 statement that the veteran's lung condition was of such severity, depth and pesistence to warrant a total evaluation based on individual unemployability in and of itself. The record show that the veteran's service-connective emphysema with inactive pulmonary tuberculosis and restrictive abnormality and asthma." The restrictive abnormality was noted in 1996, however due to the incisional hernia, I've only be able to do spirometer. Over the years the incisional hernia and other issue was clouding the ability to work issue with other issues other than the service connected disability. Finally a doctor at the VA wrote the correct letter that acknowledged the statement quoted above. dated 2008 "The Veteran is unable to have a job that requires physical exertion due to his asthema, or any sedentary labor that would make it difficult for him to use his medications including his inhalers and nebulizer machine." I had a similar letter last year from the same Department with different language but really says the same: dated 2007 "The Veteran is unable to be employed in any joy that requires physical exertion due to his breathing limitations. In addition he is unable to do sedentary labor that would take him away from is medications, inhalers and nebulizer machine." FYI: The initial claim or increase, TDIU, and 1151, the effective date for the increase from 10% to 60%, denial for TDIU, 1151 is Feb 1, 2000. The DAV rep said for me to get the IU in place and then appeal the effective date of the retro pay. Is that wise? If I repeated myself, please excuse. Thanks Berta! Theo

Berta: "Has the VA considered his opinion at all yet?" Yes the C&P Examiner quotes Dr. Bash in detail regarding his IMO, also my primary care Dr. is quoted as well, as he wrote: The Veteran has been followed at the VA medical Center for a number of years for the following problems: Asthma, Lumbar Radiculopathym Depression, Chronic Rhinitis ad history of kidney removal for Cancer. In addition to the above problems, he is service connected for Pulmonary TB, Major Depressive Disorder, Disgestive Disorder, Hearing loss and Hypertension. He has been under my care for this period of time and has followed all arecommendations and precedures as prescribed. He takes his medications as orderred. These medical conditions has caused him to be unemployable. The doctors statement added in some items in the S-C that are not S-C. However, when he wrote the letter he advised me to go to the federal building and re file the TDIU since they lumped the 1151 and the TDIU together. I filed a separate TDIU. Theo

Berta, I went to the BVA's website and put in Docket NO and other info and nothing came back. It could be that I'm not inputting the correct information. The remand was sent to AMC in September with the instructions. Its funny how the 1151 2005 C&P last year was separate from this years 2006 TDIU C&P when the remand was for incomplete but they did not reexamine me for 1151 just Unemployability. The two issues was separate issue, however the BVA or AMC lumped both apeals together to make one decision. I feel its going to end up back at the Court of Appeals. The BVA remanded this back to the AMC after they denied me, this prior to the Court of Appeals remanding it back to the BVA in 2004 for the 1151 and the TDIU. The BVA appeal was initiated back in 2002, so this has been going on for a while now. I went through the Voc Rehab Evaluation for only 6 days. Dale Jr. 8 wrote this: "The whole key to this is your non-service connected issues. If those are the primary reasons that the Voc Rehab people said what they did you have an uphill climb." The rehab report is full of pain issue pertaining to the hernia pain. My concern is how high is the uphill climb. Back then I was taking morphine sulfate, now that was a trip in itself. Trying to concentrate during testing... my God. Breathing is an issue when you are taking certain meds. Anyway thanks for the reply.. if you can tell me how to access the BVA online I'll access and share with you. Thank for Dr. Bash... He great. Theo

Berta.. I recently had my C&P examination in December 06 just before Christmas. Type : Respiratory (obstructive, Restrictive and Interstitial) Pulmonary Tubersulosis and Mycobacterial Diseases Compensation and pension examination Instructions from the AMC to the examiner: "In particular, the examiner should discuss the manifestations of associated with the veteran's service-connected emphysema and allergic rhinitis and, to the extent possible, render an opinion as to the level of impairment caused by these disorders. The examiner is specifically asked to render an opinion as to the effect of the service-connected disabilities on the veteran's ability to procure, and to maintain, gainful employment (in rendering this opinion, the examiner should, to the extent possible, distinguish between the manifestation of the veteran's service-connected emphysema and service-connected allergic rhinitis and the manifestations of any non-service connected respiratory disorders." The examiner's opinion: 1. Inactive tuberculosis 2. Bronchial asthma 3. Allergic rhinitis OPINION: 1. The level of impairment caused by the veteran's allergic rhinitis is mild to moderate. 2. the level of impairment caused by the veteran's bronchial asthma is moderate. The veteran has been engaged in vocational rehabilitation in computer work. If he Veteran is able to be trained and to perform this work, he should be able to do this kind of work without too much interference due to the above service-connected conditions. "While it should be granted that the allergic rhinitis and bronchial asthma are somewhat disabling, they should not severely impair the ability of the veteran to perform sedentary work. That being said, should the veteran be obliged to do a lot of talking on his job, he might find it more difficult to main employment due to shortness of breath, and chronic allergic rhinitis. If there is a primary reason that the veteran would have great difficulty in obtaining and maintaining gainful employment, it is secondary to the nonservice-connected problems, such as chronic back pain, depression, and left flank pain secondary to incisional hernia." The examiner's opinion regarding his C&P statement stated: "The veteran has been engaged in vocational rehabilitation in computer work. If the veteran is able to be trained and to perform this work, he should be able to do this kind of work without too much interference due to the above service-connected conditions." My concern about this statement in that the examiner did not read the file / Vocational Rehabilitation Report. Which stated that the veteran was placed in the Independent Living Program, a computer was purchased from him communicate with family. And the report has stated that the veteran is unable to vocational rehabilitation. REHABILATION CLOSURE STATEMENT. I won't go into specific information. "The Veteran completed an initial orientation and intial vocational interview on date indicated. The Veteran has a services connected disability combined rating of 60% for Pulmonary issue and other zero percent issue that are service connected. The veteran has an imparment to employability. He has not worked for the past five years, he is 60 years old and hs multiple medical problems with regards to his pulmonary condition. Furtermore, he has difficulties in terms of depression and is being treadted for this condition. Moveover, the Veteran has not overcome the effects of impairments to employability. The veteran was determined to have an employment handicap. Conditions for a serious employment handicap were also identified. The vertan is being treated for multiple condition and taking several medications. His Dr.indicated that the veteran was entitled to the Chapter 31 vocational rehabilitation benefits. However, he determined that the veteran was not feasible for competitive employment and would benefit from and Independent Living Plan."The Independent was written and since... I went through, now I have the file. The document is closes with comments of case managers closing statement." Question, is the C&P examiner trumping the VOC Rehab people with his what if statement about being trained on computers and sedentary work? And do doctors statement's really matter anymore? All of the Doctors letters included in the file and some referenced in the C&P I'm trying to get a read on this comp and pen... Your opinion please Theo

I was referred to Dr. Bash by Berta.. I was successful in reaching him and since the few weeks I've work with him by providing him with access to my records, file I have Dr. Bash was able to give me a IME that is currently in my file at the AMC. I highly recommend Dr. Bash, and for you Veterans who need more infomation about him, here is a link to a pdf file that will help you get the proper information and how to get in touch with him... http://www.kingculture.com/Veterans_Medical_Advisor_Bash.pdf Thanks Theo

Berta, regarding doctor's letters, In my file are a couple of doctors letters that speak to my non-service connected claim and one that speaks to the aggravation to the service connection caused by the hernia. The doctor who is a VA Neurologist. The Nueurologist states: "The Vet has been a patient under may care in the neurology clinic for pain syndrome associated with degenerative disk disease in the lumbosacral spine, sciatica, and chronic left L5 radiculopathy. In addition to this condition he is suffering pain from an incisional hernia as a complication from a left nephrectomy operation. It is my determination that the patient's disability form these condition is permanent and stationary, and the pain from these two condition is sufficiently severe enough to make him unemployable." The other doctor is a Pulmonary specialist. His letter speaks to my service connection: emphysema with inactive pulmonary tuberculosis and restrictive abnormality and asthma rated 60%, also allergic rhinitis at 0%. The Board of Beterans Appeals states in their remand to the AMC: "Thereafter, the veteran should be accorded a VA pulmonary examination for the purpose of ascertaining the severity of his service-connected emphysema with inactive pulmonary tuberculosis, restrictive abnormality, and asthma and his service connected allergic rhinitis as well as the effect of these disabilities on his ability to procure, and maintain, gainful employment. The claim folder must be reviewed by the examiner prior to the examinations. Any medical indicated tests, to include pulmonary function test, should be accomplished. In particular, the examiner should discuss the manifestations associated with the veterans's service-connected emphysema and allergic rhinitis and, to the extent possible, render an opin as to the level of impairment caused by these disorders. The examiner is specifically asked to render an opinion as to the effect of these service-connected disabilities on the veteran's ability to procure, and to maintain, gainful employment. (In rendering this opinion, the examiner should, to the extent possible, distinguish between the manifestation of the veteran's service-connected emphysema and services-connected allergic rhinitis and the manifestation of any nonservice-connected respiratory disorders." The Pulmonary Doctor/Specialist Pulmonary wrote an opinion that is in my file since 2004, that states: To Whom it may concerns: This letter is written to certify that the veteran is unable to perform the breathing maneuvers required during pulmonary function testing. Forced exhalation causes severe pain related to a large abdominal incisional hernia and he is unable to perform the test adequately." Does this hurt me? or does this fall under the 50/50 rule, and does it There were 4 items the BVA instructed the AMC to accomplish: 1. Notify the Veteran by letter. 2. Secure the Vocational Rehabilation Folder, which I sent them the complete file. 3. The Statement in bold regarding the Pulmonary examination. 4. A re-adjudicate the issue of entitlement and return to BVA. In February of this year I responded to the AMC regarding the issue of hernia; AMC February 2006: However, the issue of entitlement to compensation under the cited Law, rest not on the simple fact of a causative relationship. Entitle to compensation requires that the additional disability not be the result of willful misconduct, that the disability was caused by the VA treatment and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA medical center; or that the proximate cause of the disability was an event not reasonably foreseeable. We agree, the surgery caused the incisional hernia. Theo ANSWER February 2006: In a letter dated May 24, 2004, the Pulmonary Specialist describes exhalation breathing maneuvers aggravated by the Incisional Hernia. This not only represents a causative relationship, it supports without a reasonable doubt an aggravation of the Service Connection. Pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310 Regarding the Incisional Hernia, this was included. Don't know if it was effective, I was trying to make my case. AMC 2006: The claim for compensation for an incisional hernia as residual of partial nephrectomy under 38 USC 1151 is considered. Compensation is payable for any disability which results from VA hospitalization, medical or surgical treatment, or vocational rehabilitation, or as the result of having submitted to a VA medical examination. However, entitlement to compensation for an incisional hernia as a residual of partial nephrectomy is denied as it is considered to be a necessary consequence or expected result of the abdominal or flank surgery. Theo ANSWER: Also, 38 U.S.C. § 101(16) only requires a disability and a temporal relationship between that disability and active service. The definition does not mention any requirement for a diagnosis of an underlying malady or condition. Court decisions have held that "'disability’ as used in § 1110 refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated." Allen v. Brown, 7 Vet. App. 439, 448 I need to know if what I'm doing is making sense to someone other than me. With much Respect to the Hadit Group Theo

Vicki, no I have not submitted a separate claim for the scarring that resulted from the hernia.. I will do so! Now that you mention scarring, I wonder if I can submit a separate claim from pain. My pain and the muscle jumping has a life unto themself. Thanks for your response, sorry for the delay in responding.

John, I sent the Voc Rehab information to the Local DAV Rep. He is not convinced since surgery was done and the hernia is considered non service connected will be an issue. It was a downer to here the non optimistic view point. However in the statement of case, the VARO indicated that the hernia was an unforeseen result of the surgery. Theo

I have not submitted a secondary on the pain yet, however I'm going to do so. I suspect that the decision on the 1151 will be unfavorable, but optimistic on the IU. Also, the incisional hernia as residual of partial nephrectomy. As you know, the VARO sent a SOC back in February with a denial of 1151 but did not address the TDIU issue. All of this went back to the BVA and they remanded it back to the AMC for further development. This is where I am now. What I don't want to do is submit a request for secondary and have my record requested by my local RO to disrupt the present process. Today I've sent the VOC Rehab file on to the AMC. I need to submit the claim for secondary chronic pain. One other item I want to address: I filed back in 2000, I was told by my primary care Doctor to submit a request to pro rate back to the date of the operation (1994). Do you know of any case law regarding this issue. I do have time to submit more information on the file even tho I mailed the Voc Rehab file today. The doctor indicated that the hernia should be a secondary due to the fact that the veteran is not whole after the surgery. I have not worked on a physical job since 1995 due to the hernia/pain issue. I guess I'm speculating but trying to get some frame of reference. Thanks for your responses Berta and John999 Theo

Gretings Berta... I wanted to bring you up to date with my 1151 and TDIU issue. My file was sent to the AMC to the BVA due to a remand by the court. I won't go into a long spill. Recently the BVA remanded the file back to the AMC due to the fact that some pieces were not in the file including my Voc Rehab File. I assumed it was, but a lesson learned. If you want it to be done do it yourself. So I went to Vocational Rehab Office through the Privacy Act and got my file after many years of requesting it. I guess the reason I couldn't get the file in was because it was an open file. Don't know if that was true, regardless I now have the file. I want to share with you the first paragraph of the REHABILATION CLOSURE STATEMENT. I won't go into specific information. "The Veteran completed an initial orientation and intial vocational interview on date indicated. The Veteran has a services connected disability combined rating of 60% for Pulmonary issue and other zero percent issue that are service connected. The veteran has an imparment to employability. He has not worked for the past five years, he is 60 years old and hs multiple medical problems with regards to his pulmonary condition. Furtermore, he has difficulties in terms of depression and is being treadted for this condition. Moveover, the Veteran has not overcome the effects of impairments to employability. The veteran was determined to have an employment handicap. Conditions for a serious employment handicap were also identified. The vertan is being treated for multiple condition and taking several medications. His Dr.indicated that the veteran was entitled to the Chapter 31 vocational rehabilitation benefits. However, he determined that the veteran was not feasible for competitive employment and would benefit from and Independent Living Plan." The Independent was written and since... I went through, now I have the file. The document is closes with comments of case managers closing statement. "All of the objective on the ILLP have been achieve, and the veterans appears to be satified with the services provided to him. Hwas advised that th eopjectives of he ILLP have been met, and the file will be closed at this juncture. It is to be noted that the veteran has indicated that he will not be able to return to emploment because of his severe limitations. There, this contracting Counselor finds that the veteran is not feasible for return to employment at the conclusion of this ILLP Independent Living Program." So Berta, just from the information what do you draw from this. I have been so dissapointed so many times about what looks like a favorable reading, a reg trumps it. I'm also trying to tie in ICD code as it relates to my pain. the VA addresses the incisional hernia, howerver the pain is the factor that drives the depression and other. The ICD code for my Pain, Chronic as stated on my problem list is (799.9). What reg or USC addresses the PAIN...???? so that is becomes a condition separate from the hernia. Pain drive PTSD. I've hesitated whether I should send the entire file to the AMC. But I will send it so there are no excuses. I hope all your issues aremoving forward, and I thank you for taking an interest in my issue. theo

Gretings Berta... I wanted to bring you up to date with my 1151 and TDIU issue. My file was sent to the AMC to the BVA due to a remand by the court. I won't go into a long spill. Recently the BVA remanded the file back to the AMC due to the fact that some pieces were not in the file including my Voc Rehab File. I assumed it was, but a lesson learned. If you want it to be done do it yourself. So I went to Vocational Rehab Office through the Privacy Act and got my file after many years of requesting it. I guess the reason I couldn't get the file in was because it was an open file. Don't know if that was true, regardless I now have the file. I want to share with you the first paragraph of the REHABILATION CLOSURE STATEMENT. I won't go into specific information. "The Veteran completed an initial orientation and intial vocational interview on date indicated. The Veteran has a services connected disability combined rating of 60% for Pulmonary issue and other zero percent issue that are service connected. The veteran has an imparment to employability. He has not worked for the past five years, he is 60 years old and hs multiple medical problems with regards to his pulmonary condition. Furtermore, he has difficulties in terms of depression and is being treadted for this condition. Moveover, the Veteran has not overcome the effects of impairments to employability. The veteran was determined to have an employment handicap. Conditions for a serious employment handicap were also identified. The vertan is being treated for multiple condition and taking several medications. His Dr.indicated that the veteran was entitled to the Chapter 31 vocational rehabilitation benefits. However, he determined that the veteran was not feasible for competitive employment and would benefit from and Independent Living Plan." The Independent was written and since... I went through, now I have the file. The document is closes with comments of case managers closing statement. "All of the objective on the ILLP have been achieve, and the veterans appears to be satified with the services provided to him. Hwas advised that th eopjectives of he ILLP have been met, and the file will be closed at this juncture. It is to be noted that the veteran has indicated that he will not be able to return to emploment because of his severe limitations. There, this contracting Counselor finds that the veteran is not feasible for return to employment at the conclusion of this ILLP Independent Living Program." So Berta, just from the information what do you draw from this. I have been so dissapointed so many times about what looks like a favorable reading, a reg trumps it. I'm also trying to tie in ICD code as it relates to my pain. the VA addresses the incisional hernia, howerver the pain is the factor that drives the depression and other. The ICD code for my Pain, Chronic as stated on my problem list is (799.9). What reg or USC addresses the PAIN...???? so that is becomes a condition separate from the hernia. Pain drive PTSD. I've hesitated whether I should send the entire file to the AMC. But I will send it so there are no excuses. I hope all your issues aremoving forward, and I thank you for taking an interest in my issue. theo

Berta, this is the 1151 issue only, the TDIU is yet to be rated. However it was remanded int 2004 and the 1151 was remanded in 2005. I sent the reply to the AMC via registered mail regarding my SSOC. I wished I'd gotten your reply to my last post before I sent out the reply, however I missed it. Nonetheless below is the reply along with the signed SSOC Expedited Action Attachment. There was no 1-9 form attached, only the Supplemental Statement of the Case and the attachment. I did attached this information in the package in answer to the denial. What I need to know is, will the information sent be attached to the SSOC for the BVA's review since I 've agreed to waive and forward my SSOC on to the BVA for final rating? Can you give me a read on the language used in my reply. Thanks again for you help Theo PS; This is the decision on the remand to the BVA being rated by AMC. The 1151 and TDIU remand is under 04-0835 A copy of the doctors letters was attached as well as the Voc Rehab Evaluation Report. ---------------------------------- Dated February 28, 2006 Response To Supplemental Statement Of the Case dated 2/7/06 Issue: Entitlement to compensation under 38 U.S.C. 1151 for incisional hernia as residual of partial nephrectomy. To: VARO Department of Veterans Affairs Appeals Management Center Resource Unit PO Box 417 Bay Pines, FL 33744-0417 In Rely: Statement: This is to acknowledge that I am not satisfied with the decision regarding my appeal and will waive the 60 day waiting period on the Supplemental Statement Of the Case, so my case may be forwarded immediately to the Board of Veterans' Appeals (BVA) for their decision. Attached is my rebuttal to Reason and Bases for Decision. DECISION: AMC: Entitlement to compensation under 38 U.S.C. 1151 for an incisional hernia as residual of partial nephrectomy is denied. REASON AND BASES: AMC: There is no doubt that the incisional hernia you have, resulted from the surgical partial nephrectomy in October 1994. ANSWER: I agree that the Incisional Hernia resulted from the surgical procedure performed by the VA in 1994, as well as the pain associated with the Incisional hernia which you neglected to mention in your Reason and Bases. ANSWER:The issue of pain was addressed by two doctors as stated in the evidence: Statement: Dr. M.D. neurologist West LA VAMC dated May 12th, 2004 and October 26, 2005: "The Veteran has been a patient under my care in the neurology clinic for chronic pain syndrome associated with degenerative disk disease in the lumbosacral spine, sciatica, and chronic left L5 radiculopathy. In addition to this condition he is suffering pain from an incisional hernia as a complication from a left nephrectomy operation. It is my determination that this patient's disability form these conditions is permanent and stationary, and the pain from these conditions is sufficient severe enough to make him unemployable." Statement: M.D. Chief of Pulmonary dated May 24, 2004: "This letter is to certify that the Veteran is unable to perform the breathing maneuvers required during pulmonary function testing. Forced exhalation causes serve pain related to a large abdominal incisional hernia and he is unable to per the test adequately." AMC: However, the issue of entitlement to compensation under the cited Law, rest not on the simple fact of a causative relationship. Entitle to compensation requires that the additional disability not be the result of willful misconduct, that the disability was caused by the VA treatment and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA medical center; or that the proximate cause of the disability was an event not reasonably foreseeable. We agree, the surgery caused the incisional hernia. ANSWER: In a letter dated May 24, 2004, the Pulmonary Specialist describes exhalation breathing maneuvers aggravated by the Incisional Hernia. This not only represents a causative relationship, it supports without a reasonable doubt an aggravation of the Service Connection. Pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310 AMC: The claim for compensation for an incisional hernia as residual of partial nephrectomy under 38 USC 1151 is considered. Compensation is payable for any disability which results from VA hospitalization, medical or surgical treatment, or vocational rehabilitation, or as the result of having submitted to a VA medical examination. However, entitlement to compensation for an incisional hernia as a residual of partial nephrectomy is denied as it is considered to be a necessary consequence or expected result of the abdominal or flank surgery. ANSWER: Also, 38 U.S.C. § 101(16) only requires a disability and a temporal relationship between that disability and active service. The definition does not mention any requirement for a diagnosis of an underlying malady or condition. Court decisions have held that "'disability’ as used in § 1110 refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated." Allen v. Brown, 7 Vet. App. 439, 448 AMC: The Board of Veterans' Appeals, (The Board) remanded this claim for a VA examiner to review the entire claim file and provide an opinion regarding the claimed issue. On December 30, 2005, that examiner, following the complete review of the claims file, to include evidence received since our last Supplemental Statement of the Case, and interview and examination of you, stated that the incisional hernia was a residual of the surgery. He stated that the incisional hernia was a residual of the surgery. He stated that an incisional hernia is a relative common complication of abdominal or flank surgery and is not an unforeseeable consequence of the surgery performed. He stated further that the claimed conditions were not the result of carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of the VA in providing care. ANSWER: 38 U.S.C. 1151 also provides: “Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, [or] medical or surgical treatment, . . . and such injury or aggravation results in additional disability to . . . such veteran, disability . . . compensation . . . shall be awarded in the same manner as if such disability, [or] aggravation . . . were service-connected.” (February 2, 2001 VAOPGCPREC___4-2001 ) ANSWER: The examiner erred in the Supplemental Statement of the Case when failing to consider the incisional hernia as “an aggravation of an injury” as cited in 38 U.S.C. 1151. Yet acknowledges proximity . The Veteran has and have conditions related to upper respiratory conditions. Over the years and before the Partial Nephrectomy, the veteran has been taking steroidal medication: (Triamicinolone Acetonide -Azmacort) Albuterol Sulfate, and Provental for Asthma, Chronic Bronchitis and Rhintis. The Pain and Incisional Hernia has caused problem from normal daily life. As such,"disability as used in § 1110 refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition... shall be compensated." Allen v. Brown, 7 Vet. App. 439, 448 AMC: In the absence of evidence showing that the claimed incisional hernia is the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA medical center is not a reasonably foreseeable consequence of the treatment, entitlement to compensation under the provisions of 38 U.S.C. 1151 must be denied. ANSWER: As provided earlier, 38 U.S.C. 1151 states compensation “shall be awarded” “where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, [or] medical or surgical treatment, . . . and such injury or aggravation results in additional disability to . . . such veteran, disability . . . compensation . . . shall be awarded in the same manner as if such disability, [or] aggravation . . . were service-connected.” Veteran's Statement: The remanded issue of the TDIU is still unresolved.

I feel that -in addition to the 1151 claim- you should file a claim under this reg: Pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310, when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Would this be considered a new claim, or would it tie in with the pending claim? Did this report specifically state that the SC condition made you unable to rehabilitate? If so-excellent evidence of TDIU and VA needs to know this- Yes, the Counseling Record Narrative Report a box is checked: Does the Veterans service connected Disability Materially contribute to this impairment of Employability? [YES] Another box indicate: Does The Veteran have an employment handicap? [YES] Has the Veteran overcome the effects of the impairment of the Employability? [NO] This information was acknowledged as Evidence in the 2006 Supplemental Statement of the Case: Notice of Vocational Rehabilitation and Education Service feasibility determination and vocation plan dated November 21, 2002. Also the two Doctors statements we included in Evidence. Apparently the RO did not take any doctors letters under consideration due to the none service connection. Berta, how should I reply to the SSOC? Of course I will check the box indicating dissatisfaction with the SSOC, however the remanded issue regarding the TDIU is yet to be determined. I'm looking for the correct language to use in my reply to the DRO in St Petersburg. The BVA will have the final decision as you know.

Greetings Berta: Thanks for responding. I'll try to answer your questions. Berta: What was the reduction based on? The reduction was based on inactive TB Berta: I could be wrong but I thought that even if the TB was inactive, it's ability to cause residual disability is what they would continuously rate on--- Theo: When I developed the TB, I had a cavity the size of a fifty cent piece, 3 month of hospital, a shot of Streptomisin every day. I have complained to doctors about the Pleurisy or the pain from something that was there. Something about the wall between the lung and the chest cavity. Doctors have mentioned ghosting pain. Yes I've have Asthma, and continue to be treated for it. This is how the 60% came into play, plus 0% for Rhinitis. "Nowhere in the 2006 Supplemental Statement of Case does the examiner mention the awful pain associated with the Incisional Hernia has case me of the past 12 years" but this is a difficult claim under 1151---- Berta: The TDIU- has any doctor told you you are unemployable due to your SC TB condition? YES... I have a two doctors statement regarding unemployability: Doctors statement: "The Veteran has been a patient under my care in the neurology clinic for chronic pain syndrome associated with degenerative disk disease in the lumbosacral spine, sciatica, and chronic left L5 radiculopathy. In addition to this condition he is suffering pain from an incisional hernia as a complication from a left nephrectomy operation. It is my determination that this patient's disability form these conditions is permanent and stationary, and the pain from these conditions is sufficient severe enough to make him unemployable." Another doctor, a who is chief of Pulmonary: Doctors Statement: "This letter is to certify that the Veteran is unable to perform the breathing maneuvers required during pulmonary function testing. Forced exhalation causes severe pain related to a large abdominal incisional hernia and he is unable to per the test adequately." Also, I went into the Independent Living Program in 2002 through VOC Rehab. A Counseling Record - Narrative Report was submitted to the AMC indicating their position as unable to rehabilitate. Placed on Independent Living Status. My concern is in the Non-service connection of the hernia. How does all this tie together to bring a service connection? Berta: Do you get SSA disability benefits for this? The only compensation I receive is the 60% VA @ 58 years. This BVA case is similiar to your claim in many ways- http://www.va.gov/vetapp05/files5/0530554.txt It seems that the TB regs changed in the late 70s- maybe that is why they dropped you to "0" ??? Berta: Why do you take the Gabapentin? The neurology doctor put me on the Gabapentin to work with the pain meds. He suggested that this type of medication would decrease the other meds. Is that for any condition that could possibly stem from service? I don't believe so that I can think of. I've been on many meds: Codine sulfate 60 mg Omeprozole 20mg Osycodone 5 mg Gabapentin 300 Fluticasone Azmacort Atrovent puff montelukast 10mg Loratadine Desipramine Flonase nasal spray Flunsisolide nasal Disphenhrdramine 50 mg Diazepam Albuterol Inhalation Albuterol Sulfate Nebulizer machine.

I'm new to the forum. I hope I don't loose focus stating my issue. I'd like to get some feedback regarding my experience with the Guardian's of the Gate. I would appreciate the forums advice. History; 1st Service Connected for TB 100% 1969 Pulmonary Cavity right upper lobe, reduced to 0 % at some point in the seventies. Now 60% SERVICE CONNECTED 60% TUBERCULOSIS,PULM.,CHRONIC,FAR ADV,INACTIVE 0% ALLERGIC OR VASOMOTOR RHINITIS Filed claim in 1998 for Service Connection on 1151 / TDIU Post incisional pain since 1994 - Treated with medications. Pain clinic. Medication Oxcodone 5MG - Gabapentin 300MG Information for previous Supplemental Statement of Cases, 2002 the Pertinent Law; Regulations; Ratings Schedule Provision: 38 CFR §3.154 Injury due to hospital treatment 38 USC §5107 Burden of Proof; benefit of the doubt In 2002, I was Denied entitlement to compensation for incisional hernia as a result of partial nephrectomy because this disability was caused by a failure to follow properly given medical instructions and not by services provided {38 CFR 3.800 and 3.358} Remanded by Appeals court 2004 Entitlement to Individual Unemployability Remanded by Appeals court 2005 38 U.S.C. 1151 for an incisional hernia as residual of partial nephrectomy. (Ref; ANALYSIS VA EXAMINER OPINION Rating decision May 22, 2003: "Entitlement to individual unemployability is denied because the claimant has not been found unable to secure or follow a substantial gainful occupation as a result of service-connected disabilities. The veteran is consider unemployable due to non-service-connection factors. the service connected disabilities, when considered when apart from the non-service-connected conditions, are not caused for unemployability." {38 CFR 4.16} In the 2003 Supplemental Statement of Case, the examiner made a entry of Dr. Burstein's progress note of August 23, 2002, wherein his opinion "Post-incisional pain is, in his opinion, one of the possible surgical complication, unrelated to the patient's non-compliance or surgical mistakes. Dr. Burstein: "I have no evidence to suspect any kind of non-compliance by the Vet that has contributed to this pain." Note: Nowhere in the 2006 Supplemental Statement of Case does the examiner mention the awful pain associated with the Incisional Hernia has case me of the past 12 years. How does one bring in the pain issue? are is this apart of the positive and negative evidence which does not satisfactorily prove or disprove the claim. I looked up the 38 CFR §4.40 Functional Loss, however was able to figure out the language if applicable to my case. New Supplemental Statement of Case dated February 7th 2006 Subject: Entitlement to compensation under 38 U.S.C. 1151 for an incisional hernia as residual of partial nephrectomy. Except from Supplement Statement of Case PERTINENT LAWS; REGULATONS; RATING SCHEDULE PROVISIONS: §3.102 Reasonable doubt. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. (Authority: 38 U.S.C. 501(a)) [50 FR 34458, Aug. 26, 1985, as amended at 66 FR 45630, Aug. 29, 2001] DECISION: Entitlement to compensation under 38 U.S.C. 1151 for an incisional hernia as residual of partial nephrectomy is denied. REASON AND BASES: There is no doubt that the incisional hernia you have, resulted from the surgical partial nephrectomy in October 1994. However, the issue of entitlement to compensation under the cited Law, rest no on the simple fact of a causative relationship. Entitle to compensation requires that the additional disability not be the result of willful misconduct, that the disability was caused by the VA treatment and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA medical center; or that the proximate cause of the disability was an event not reasonably forseeable. We agree, the surgery caused the incisional hernia. The claim for compensation for an incisional hernia as residual of partial nephrectomy under 38 USC 1151 is considered. Compensation is payable for any disability which results from VA hospitalization, medical or surgical treatment, or vocational rehabilitation, or as the result of having submitted to a VA medical examination. However, entitlement to compensation for an incisional hernia as a residual of partial nephrectomy is denied as it is considered to be a necessary consequence or expected result of the abdominal or flank surgery. The Board of Veterans' Appeals, (The Board) remanded this claim for a VA examiner to review the entire claim file and provide an opinion regarding the claimed issue. On December 30, 2005, that examiner, following the complete review of the claims file, to include evidence received since our last Supplemental Statement of the Case, and interview and examination of you, stated that the incisional hernia was a residual of the surgery. He stated that the incisional hernia was a residual of the surgery. He stated that an incisional hernia is a relative common complication of abdominal or flank surgery and is not an unforeseeable consequence of the surgery performed. He stated further that the claimed conditions were not the result of carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of the VA in providing care. In the absence of evidence showing that the claimed incisional hernia is the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA medical center is not a reasonably foreseeable consequence of the treatment, entitlement to compensation under the provisions of 38 U.S.C. 1151 must be denied. The remanded issue of the TDIU is still unresolved at the AMC :P