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Tomahawk

First Class Petty Officer
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Posts posted by Tomahawk

  1. Thanks for the reply.  It is my understanding that CRPS/RSD is rated under Code 8520 as an analogous neurological condition.  How does the 40% limit work in that regard?  For example I have annotated severe muscular atrophy.  If it is indeed rated under that code it would entitle the 60% rate.  Do they rate it as that and then just cap it at 40%?

  2. So I was initially rated under a "general" foot condition at 30% for an injury I sustained on active duty and have had multiple surgeries on since.   I have since developed flat feet.  My current appeal is claiming flat feet, lower back(degenerative disc disease w/radiculopathy) condition secondary to my leg condition, and to have my CRPS/RSD rated under the appropriate code as a neurological disorder and not a general "foot" condition.


    So my question is this.  If I am granted everything I claimed will I have two ratings for my foot/lower leg?  I.e. I am currently rated as the equivalent of the great toe and 2nd/3rd toe being amputated(post-operative w/scarring).  Would I keep that rating as well as being added the % for CRPS/RSD?  They are technically two different issues.  Or will this fall under the clause of only be rated for the greater of the two?

    Also if I am awarded the claim for bi-lateral flat feet.  Would they only consider it 1 foot as my SC foot is already covered?  Or again would that stack?


    Thanks for any insight.

     

     

  3. I was medically discharged from the Marines. It took me 6 years to get the VA to give me a 0% rating. After that it took another 5 years to get them to increase it to what it is now. I have now been waiting 6 years since I filed my NOD, and 3 years since I filed my Form 9 to the BVA.

    Anytime I have called the normal 800 number they tell me the same song and dance about it take 1000+ days for appeals to advance, and they are still working my claim.

    I've tried contacting IRIS. Which states you will get a reply in 5 business days. The 3 times I have tried using that I have had to send another request 3 weeks later and reference that one I finally get a response 2-3 days after that which consists of some variation of:
    "Please accept our apologies for the delay in responding to inquiry #. We are currently experiencing a large volume of inquiries and are working as quickly as possible to respond to each inquiry in a timely manner.

    We received your VA Form 9, Appeal to Board of Veterans’ Appeals (BVA), which formalized your appeal on XX/XX/XXXX. At this time your appeal is awaiting review for any further action or necessary development.

    If no further action is necessary, your file will be certified to the Board of Veterans’ Appeals (BVA) for their decision on your appeal. If any further action or development is needed, we will notify you.

    The processing of most formalized appeals takes an average of 1,036 days.

    The length of time it takes to process your VA Form 9 depends on the specifics of your case and VA’s pending workload.

    We are currently processing a large volume of appeals, and we are doing our best to process these as quickly as possible. We generally process appeals in the order received. Due to the backlog of appeals, we cannot provide you with a better timeframe or inform you of when your appeal will be completed. We apologize for the delay and appreciate your continued patience.

    Hiring an attorney, writing your congressman, or even obtaining a Veteran Service Organization, is always your option, and our recommendation, should you need assistance when following the claims and/or appeals process."

    I have tried calling the BVA 800 number. Most times the line just rings and rings and rings. The handful of times over the last 3 years that it has actually been answered they tell me the exact same thing: "Your file is still with your regional office. We don't begin working on it, or have any information to give until we have the file."

    I have tried writing 3 different congressmen/women as well as both of my state senators. All to absolutely no avail in figuring out if they are even working my file correctly much less at all.

    After reading a few of the success stories about emailing General Hickey I took that route on Monday, and as of yet have not heard anything from her. So I'm not getting my hopes up that anything will be done in the near future.

    So to answer your question. In my experience there is absolutely nothing you can do to speed anything up. Don't give up. It's an arduous process for sure, but I have to believe the fight is worth it, and the VA will eventually make shit right.

  4. maybe its just me but allison hickey is a retired air force general. she is also an under secretary at the va. i hope people sending email to her are addressing her by her proper titles. thanks for letting me rant.

    As I was unaware the she was a retired general I addressed her as "Ms. Hickey". What other proper title would you suggest people use?

  5. So I have been in a holding pattern since I filed my Form 9 about 3 years ago. I've called the BVA 800 number every few months and am always told that my file is still at my RO every time.

    Well I finally got called for another C&P Exam. I go and it was not for anything in my appeal. It was an exam for an increase.

    So after reading some other peoples success stories I emailed Allison Hickey. Not that I am looking for preferential treatment, or jumping my case to the head of the line, but because I want to ensure my case is being worked properly as it appears it is not.

    Im hoping I can get it sorted out and my file actually sent to the BVA some time this year.

    I know that the average time for my RO is over 1000 days for a BVA appeal, and I am only a little over that wait time. I just don't want to get to the BVA hearing and them not have my appeal claim correct just for me to start the whole 6 year process over again.

    Any ideas on what to expect in terms of time of reply? If I don't hear from her/her team in a certain amount of time should I try emailing Bob?

  6. Honestly I would file immediately. Once you have filed that is your effective date. Whether or not you are submitting an IMO/IME if you know what you are filing for just file. After that you can submit the IMO/IME as additional evidence.

    **EDIT** Also I think the VA added some new method called "Intent to File" which would mark your effective date and give you time to gather whatever evidence you have. Ask your VFW rep about it.

  7. Thanks Berta. Yeah I have been on Naprosyn since 1997. I had onset of heartburn in the Marines and it is documented in my SMR. Along with the 2 years of 1000-1500mg of Naprosyn 2 times a day and they denied it was related. I had about a 2 year reprieve after the VA did a Nissen Fundolplication. However the heartburn and reflux returned. I went to my PCP and she was astounded that Pain Mgt had me on the Naprosyn without automatically prescribing Omeprazole. She immediately put me back on that. So yeah I would say most VA docs can make that correlation without issue. Alas that isn't what this exam was for.

    Well I went through all weekend pulling out documents and tabbing them so it was easy to leaf through when I got to the exam. I pulled everything that was in my C-file that was germane to each of my claims. Well the doc wasn't examining me for anything other than an increase for my current disability.

    This poses two problems:

    1.) I wasn't claiming just an increase. I filed the claim to have them classify my disability correctly. I am currently rated 30% for post operative injury, left foot, with bunion, scars and complex regional pain syndrome of the left lower extremity. I was expecting them to correct it from a "foot" rating to that of the peripheral nerve which is my understanding should be under 8520.

    He asked me questions he should have the answers to. Such as how long ago this happened, what happened, when was my VA surgeries. He measured the scars. And then told me to get dressed. I specifically asked why they were doing the foot exam as it was my understanding CRPS/RSD was a neurological issue. He stated "Oh it is, it is. I'm just doing the exam they request." So after I already had my braces, sock, and shoe back on I asked "Well don't you want to measure/check for atrophy? "Oh. yes. Yes we should do that as well." So I had to go through that all over again. He did state "severe atrophy is visible" which is good I suppose as long as he wrote it in the report. However they then had me get an X-Ray, which didn't quite make sense as I didn't break any bones, and they have ample MRI and Bone Scans in the last 2 years to review.

    So this tells me they aren't working my claim to re-classify it correctly.

    2.) Problem 2 is, why didn't they evaluate me for my other claims? I am going to remain optimistic that it is because they have all the information they need to grant me the SC or secondary to SC. However experience tells me this probably means they aren't working the claim properly and Im in for another 5-6 year wait to get it right.

    So its wait and see now. Im sure Ill get a letter in 30-60 days telling me something. Ill remain hopeful.

  8. So 6 years after I filed my form 9 appeal I was just called to schedule a new C&P exam for next week. Moral of the story is that I filed my claim to have my SC foot classified correctly from a 30% severe foot injury(which they labeled as flat feet) to what it actually is CRPS/RSD. Which to my understanding should be classified 8520 for a nerve issue. Which if that is the case it should be 60% because of marked muscle atrophy.

    I also claimed my numerous herniated and bulging discs as SC. Both because of injuries sustained while on active duty. I have no less than 5 entries in my SMR stating I was seen for my back issues, as well as secondary to my SC foot/lower leg condition as my abnormal gait, along with my leg giving out causing me to fall has sent me to the VA ER numerous times and is annotated in my VA medical records.

    I also claimed GERDs secondary to the years of taking Naprosyn for my conditions. I was expecting a 0% non-compensable rating for that as I had surgery to repair it.

    The original exam was as I said around 6 years ago.

    The having my injury reclassified correctly was ignored. They "continued" my current status on that.

    The back issues were denied as the examiner stated "any correlation to the current SC foot injury would be purely speculative"

    And the GERD was denied stating "there is no correlation to medication causing GERD"

    In response my form 9 contained scathing remarks about the doctors report. I said things such as "You don't need to be a doctor to know there is a correlation between an abnormal gait, falling due to the leg injury, and back problems regardless of this Doctors desire to speculate or not. My back issues are beyond a reasonable doubt aggravated by the fact that I cannot ambulate correctly with or with the use of such aides as braces, custom orthotics, and a cane." So I finished my statement about that exam with "For a doctor who specializes in C&P exams to state he cannot make that correlation without speculating tells me he does not have the medical training required to be giving the examination"

    He also wrote about my having "hammer toes" when in fact if anything I have the exact opposite. 3 of my toes do not bend at all. They were fused straight in a VA surgery.

    So I stated "His report reads like he did not review my medical records at all, he is totally incompetent, or worse he dictated the notes of a different veteran into my record."

    Having said all that I was excited to finally be getting another exam. I got the letter in the mail yesterday. The exam is with the same doctor....................

    Im fighting the urge to call and cancel it knowing that it will likely mean another 2+ years of waiting. I'm just looking for advice from anyone who has been in similar scenario, or suggestions of how to handle the interaction if I keep the exam?

  9. It took 7 years for the VA to acknowledge the disability I was discharged from the Marines for was in fact a service connected compensatable disability. Of which I had multiple surgeries at the VA for.

    I filed for additional disabilities secondary to my service connected and filed for my service connected to be listed properly. I am getting 30% when I should be getting 60%.

    They denied my new claim to which I appealed in Sept of 2009. I still haven't had an update. Every time I call the 800 number I get the song and dance that the "could go pull my file" to check on it but that would get it placed back at the bottom of the pile.

    It's pretty incredible how they manage to take advantage and the limited recourse veterans have for it.

  10. I appealed my claim initially in 2007. Then did the Form-9 for a BVA hearing in March of 2009. I've called the BVA help line and all they say is they don't have the file and to contact the regional office. Anytime I call the 800 number they tell me that these things take many years and there is nothing they can do unless they "pull" my file which will then get it placed at the back of the pile. I did the iris inquiry about 3 weeks ago and have heard nothing back. I called the Office of Case Management and left 3 voicemails over the last 2 weeks as no one ever answers. I'm about to write my congressmen about the issue. 5 years and my file is just sitting there? I get that it takes time to process and schedule hearings and what not, but it hasn't even been sent to the BVA yet.

  11. I applied for the clothing allowance when I got the form at the beginning of the year as I have for the last 5 years. I still hadn't heard anything back about it so I called prosthetics and they stated they never got the form. But the woman emailed me a form to refill out and mail back to her.

    With that said she stated on the phone that she doesn't believe I am eligible as they changed what appliances qualify for the allowance. I looked around on the website sites I knew and didn't see any mention of this. So when I emailed the form back in I asked where I could find information on the changes as I didn't see it in the actual regulation. She replied that she would have to ask the clothing allowance coordinator, who was on vacation currently, if the information is avaible for me to look up. But that they were made aware of the changes through a training class.

    Has anyone else heard of these changes? Is the information available anywhere?

  12. Tomahawk,

    Being able to find the money for an good IMO is an investment. I would think if you can afford around a 3-5 year wait

    for a decision from BVA then you could find a way to afford or obtain an IMO.

    If you feel your NOD is straightforward and simple - go ahead and submit.

    Other's have posted it's way too much - I totally agree and feel it will not even be read in it's entirety.

    Your first paragraph alone provides VBA with several reasons to continue a denial.

    The VBA's opinion on weight gain is a lower caloric intake would benefit the claimant

    and they have the move program and dietetic counseling to offer veterans.

    Also, I do not think you have an accurate understanding of exactly what

    "a preponderance of evidence to resolve any reasonable doubt" entails.

    And the "lay person" clause you mention doesn't cover hardly anything that you have addressed,

    in this NOD, to afford any probative value to the issues.

    This NOD as lengthly as it is - I found to be an incredible mess from a point of adjudication.

    I do not post this as a put down at all as I know you are working hard on this,

    but in my opinion, much of nothing contained in this NOD will fly towards supporting a grant of benefits.

    JMHO

    Well my total income monthly is $1095. And yes I make due with this amount to cover rent, gas, and food. And I have zero qualms with making due with this amount for the next few years. However making this minimal income does not afford me the luxury of savings. Which I would need to save in order to pay for an IMO as every doctors office I have contacted does not take payments for an IMO. I understand that were it to be a DRO that the ROs would not read it in its entirety which is why I am appealing to the BVA. It would be damn near unlawful for them not to read it at that point. I have participated int he MOVE program. And the nutritionist straight up told me "I wish every patient understood what needs to be done the way you do" I have done everything that CAN be done with my diet. I know what types of food and how much of it to eat. I know how much water to drink every day. I know to eat 5 proportioned meals a day to keep my metabolism going. I was dismissed from the MOVE program as it didnt meet a schedule I was able to commit to and the nutritionist stated there was nothing they could help me with that I didnt already know. I am not diabetic. I do not have high cholesterol. Other than the fact that Im overweight, and I have my known disabilities, I am in perfect health. As for my understanding of what a preponderance of evidence entails.... I understand it to be that the evidence is sufficient to determine my claim is more likely to be true than not. Which I firmly believe any doctor outside of the VA system would review my medical history would agree. I just need the VA to do its due diligence and afford me that medical exam. As for my mention of "lay person" All I am implying with that is I know what symptoms I had and when. And for their doctors to discount that based on "assumptions" is beyond the scope of their pervue,

    I thank everyone for their time and input.

  13. I understand that a nexus would be greatly beneficial. I however am not able to afford an IMO at the current time. As for keeping it simple, my NOD is fairly straightforward and simple in that it is stating what I am disputing and the reasoning as to why. Which boils down to the gross incompetence of the medical professionals the VA had examine me.

    My question isn't whether there is "too much information". I really don't think that there is ever too much information especially when appealing to the BVA. I wrote a letter significantly longer than this when I appealed my initial 0% rating, and was then given a second C&P exam which lead to my 30% rating.

    I also understand that iron clad chain linking evidence will ensure a win. Unfortunately I am not a doctor, and do not have access to a doctor outside of the VA. Therefore all I can do is use the "lay persons" clause in order to have them hopefully re-examine my files properly, and have me seen by more competent doctors.

    My only concern with this letter is whether my calling the doctors inept and unqualified was too harsh and should I reword it better.

    The letter itself just covers each issue, what their reviewer stated. How what they stated was incorrect, and that I am aware of the subsequent regulations that they should be using and are not.

  14. So I have finally gotten around to writing up my NOD. Could some of you with more experience with this sort of thing read this over and let me know if its too much and I need to dial it back a bit, or if its okay to send as is. Thanks in advance.

    Notice of Disagreement

    The sleep apnea examination performed by XXXXX states "The veteran did not have any documentation of symptoms or diagnosis of sleep apnea during his military enlistment." This is false. I have in my service medical records documentation that I had difficulty sleeping. I also had problems with sinusitis which is a known issue with sleep apnea patients. To state that my service records show this as an "acute episode" is absurd. I specifically told the doctor in my exam that I had sinus problems throughout my military career. However I did not go to sick call for it as it is stigmatic to be a "sick call commando". I did what most Marines did and took over the counter medications and just dealt with it. Furthermore Dr. XXXstates that my sleep apnea is more likely than not related to the weight I have gained since being out of service. Had Dr. XXX actually examined my medical records he would have known this directly connects my sleep apnea do my current service connected disability. The plethora of medications I have been given over the years for my disability including Gabapentin, Amytriptyline, Naproxen, and Pregabalin all have weight gain listed as a side effect. Couple this fact with my inability to properly exercise due to my SC disability is more than a preponderance of evidence to resolve any reasonable doubt that my SC disability at least as likely contributes to the aggravation of my sleep apnea. On top of my SC disability having a major impact on my weight gain, the current medications I am on also exacerbate my sleep apnea. Currently the medications I take for my SC disability are Hydrocodone, Zolpidem Tartrate, Cyclobenzaprine, and Etodolac. All of these medications have an adverse effect on me in regards to my sleep apnea. In addition to these connections, my SC disability prevents me from sleeping any other way than on my back which also causes sleep apnea to be worse. Proof of this fact can be seen in the video taken by the VA while I was having my sleep study. The technician assured me that everyone moves positions in their sleep and that I would at some point move from my back whether I knew it or not. Upon waking from my sleep study the technician laughed and stated he has never seen anyone not move during a sleep study, and that I was the first. The reason for this is that my body is conditioned not to move in order to avoid added pain from complex regional pain syndrome. All of these factors show that whether or not my sleep apnea was present during my time in service (which I believe it was) it is still aggravated by my service connected disability as well as the medications I take to alleviate pain caused by the SC disability.

    Dr. XXX also examined me for Esophagus and Hiatal Hernia. In his diagnosis Dr. XXX states " Nonsteroidal antiinflammatories are not known to cause GERD…." and that other factors contributed such as "his obesity." Considering I was not obese when in service which is when the symptoms were onset (as stated in my service medical records) this conclusion is ludicrous as a "cause". Proper examination of my medical files will show that the symptoms had onset of symptoms while on active duty. Coupled with the medications I was prescribed for my service connected disability, and the disability itself are all contributing factors to my esophagitus and GERD. By default this makes the condition service connected as symptoms were onset in service. However the issue was exacerbated due to my service connected disability resulting in my need to have surgery to correct it as the medication for the GERD was not helping. Any doctor who actually reviewed my complete medical file would be able to make this correlation, and be able to state with a certainty that my esophagus with hiatal hernia was at least as likely as not caused by, or aggravated by the medications for my service connected disability, and the disability itself.

    I was examined by XXXXX for my Degenerative disc disease and herniated discs. In his conclusion he states "any relationship of this to his service, left foot, is purely speculative." Again I find this preposterous. You do not have to be a doctor to know the correlation between lower back pain and an abnormal gait. "Disability that is proximately due to or the result of a service-connected disorder shall be service-connected.

    38 C.F.R. § 3.310(a) (2004). Service connection will also be

    granted for aggravation of a nonservice-connected condition

    by a service-connected disorder, although compensation is

    limited to the degree of disability (and only that degree)

    over and above the degree of disability existing prior to the

    aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995).

    "

    Whether or not this doctor felt the desire to "speculate" on the cause of my lower back issues, it is beyond a reasonable doubt "aggravated" by the fact that I cannot ambulate correctly with or without the use of such aides as knee and ankle braces and a cane. I have documented issues of back problems in my service medical records. I also have documented in my VA medical records issues of lower back problems specifically caused by my losing balance and falling due to my service connected left foot. Nowhere does Dr. Steurer cite viewing my medical records in his diagnosis which would have given him beyond reason of speculation to deduce that it is at least as likely as not that my service connected left knee/left foot condition caused and/or aggravates my degenerative disc disease with herniated discs. There is a preponderance of evidence available to the VA in cases very much like mine that dictates abnormal gait being at least as likely as not the cause of lower back problems. For a doctor who specializes in C&P examinations to state he cannot make that correlation without speculating tells me that he does not have the medical training required to be in that position. The fact is the my spine issues are most likely secondary to my longstanding service connected lower leg disability and the accompanying abnormal gait, which likely damaged spine due to undue and abnormal stress. It is well known that people with lower extremity orthopedic problems often have abnormal gaits and these people often rapidly develop abnormal painful spines. The abnormal forces which are secondary to the gait problems places excessive stresses across the vertebral column, which in turn damages the spine.

    Dr. XXXX also examined my right foot and cited that I have "claw toes left foot and hammertoes left foot". I have neither claw nor hammer toes. This statement is clearly erroneous and has no basis in fact. Viewing of my dozens of X-rays and other imaging can prove this false. The inaccuracy of this report leads me to believe that Dr. XXX dictated his findings about a different patient into my medical records, he did not thoroughly review my medical records, or that he does not have an adequate background in podiatry to diagnose my conditions.

    In the document "Statement of the Case" dated 05/09/2006 page 6 states that "The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment…" Based on this definition and my medical care it is beyond a doubt that my left foot does not function under ordinary conditions of daily life. Furthermore page 7 of this same document goes on to state "Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance…" Considering I have not been able to run since being discharged from service, and my condition has gotten progressively worse with time to the point that I cannot ambulate without the aid of braces, inserts, and a cane I would beyond a doubt state that my left foot does not perform normal working movements with normal excursion, strength, speed, coordination, nor endurance. Thus by the VA's legal definition I have functional loss of use of my left foot. This is shown via the multiple Pain Management, and Podiatry appointments I have had throughout the years. There is documented in my VA medical records limited and painful motion, as well as evidence of disuse and atrophy. This should prove that I meet the criteria for functional loss of use of that foot with a rating of 40% which is the maximum for the loss of use of that appendage.

    The VCAA dictates that the VA is required to assist a veteran in obtaining evidence necessary to substantiate a claim. Based on the incompetence of the doctors that examined me I feel that the VA has failed in its duty to assist. I am therefore filing this Notice of Disagreement and request a formal BVA hearing.

    I am disputing that;

    1.) Service Connection for RSD/CRPS of the left lower extremity should be the maximum 40% disability.

    2.) Degenerative Disc Disease with herniated discs should be secondary to aggravation by SC left foot condition.

    3.) Esophagus with hiatal hernia should be serviced connected with exacerbation by medication for SC left foot condition.

    4.) Sleep apnea should be service connected secondary to aggravation by SC left foot and residual medications for its treatment.

  15. Tomahawk

    Did you file with a NOD with a IMO?

    I did not file a NOD yet. Im still working on getting an IMO. I cant afford one right now. And of the 5 doctors I see at the VA not one of them is willing to actually write down what they tell me. Each of them has at some point on their own or through my questioning them have said that my back issues are more than likely caused by my poor gait. Yet none will write it into my file stating they cannot be 100% sure. So until I can afford to pay an outside doctor to review my file, Im pretty much screwed.

  16. I have had an "antalgic gait" listed in my medical records since my initial surgery on my foot while I was still on active duty. I filed for my back condition which is 3 herniated discs, repeated lumbar strains, and DDD as secondary to my service connected left foot/lower extremity condition as being caused and/or aggravated by it. I was denied on the basis that the C&P doctor said "Any connection to service related injuries would be purely speculative."

    The bottom line is if you do not have an IMO or one of your doctors specifically stating in your medical records that your gait is causing/contributing to the problem, you will not get service connection for it.

  17. Well I was correct in my assumptions. They granted me 10% for my knee but denied everything else outright. Ill have to wait for my actual paperwork in the mail as they wouldnt fax me all of it just the notification letter. I just don't get how these doctors work. You would think that the doctors would want to benefit the vets instead of going at it with a deny deny deny attitude. I mean seriously when there is NO history of back injuries OUTSIDE of military, or not directly related to falling due to instability of service connected issues how is it "purely speculative" for the doctor to see a connection. And for a doctor to flat out state that NSAIDS don't cause or contribute to GERDs, and esophigitus is ridiculous to me.

    Well at least Ill be getting the back pay on the 10% difference. Ill have to figure out what type of specialist I need to go see to make an IMO for my issues, and hopefully can afford it with the back pay.

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