Reopening A Previous Claim That Was Denied For

[MRRRR5]

I would start by saying "Thank You" to all my fellow veterans in this forum who have honorably served our nation. I will be brief as possible.

My spouse was honorably discharged from the service in December 1990 after close to 3 years of AD as an 83E, Photo & Layout Specialist (Topographic Mapmakers). In May 2004, my spouse, who is also a SC veteran for bunions on both feet, was previously denied SC for ear problems (otitis media and otitis externa) and chest pains. We didn't know that she could claim "any disabilities" until i started my retirement ACAPing and got a briefing from the "VA Representative". The primary reasons for both denials from the VA rating decision stated "There is no evidence shown in the service medical records in service" for either of these conditions. As far as the ear problems, the VA decision goes on to state that the "first record of an ear condition is dated July 1991" and that since that date, "post-service treatment records show off and on treatment for ear pain, ear infections, otitis media, and otitis externa in both ears up to the present" from the various military hospitals (due to her being my dependent and me still being on AD). We were confused by this and requested a copy of her service medical records from St. Louis. We finally received copies of her medical records after several correspondence from St. Louis in July 2007 (3 years later). After reviewing her medical records, we discovered several medical treatment records for ear problems that she had on 11 May 89 (ear irritation, burning, swelling, and tenderness), 26 May 89 doctor wrote "routinely exposed to hazardous noise" due to PMOS 83E and an audiogram showing "mild hearing loss along with a DD Form 2215 with "hearing loss profile", and 25 Sep 90 (viral upper respiratory infection-URI- with zoster virus/infection in left ear". We also found treatment records for her chest pain in service dated 11 Feb 90, which was listed as "chest pain with light palpation". In June 07, she had bunion surgery on left foot, which resulted in severe complications and a Reflex Sympathetic Dystrophy (RSD) diagnosis in August 07 from the bunion surgery complications, which has been a mental, emotional, and physical nightmare for her and us all. Prior to the bunion surgery, she was very active, had enrolled in college courses, and had just received her Certified Phlebotomy Technician Certificate of Training. Has been on crushes since June 07 surgery and can not walk without them, started physical therapy in August 07, and was referred to a pain specialist in September 07. Also informed by the doctor that due to the RSD, "it may be 6 to 12 months or longer" before she would be able to possibly seek employment or go back to schooling. That information was a psychological and emotional bombshell. She had to go to the ER twice during the month of August 07 for severe spasms in the left foot and leg (via ambulance) and two weeks later for severe chest pains and difficult breathing. Both times the ER doctors did x-rays, blood work, etc. and concluded that it was all part of the RSD from the bunion surgery. She is severely limited in what she can do because of the pain from the RSD and the treatment medication she is on and has been on since the surgery (addictive narcotics). We were informed by the pain specialist that the RSD can and will most likely spread to other parts of the body and will most likely aggravate any other chronic conditions because of it's impact on the central nervous system. He also stated that she should keep her foot elevated as much as possible to help control the swelling in her foot. She informed the pain specialist and the PT that although the medication provides some relief (at least 50 to 60 percent relief), she is having problems with her lower back, both knees, and her non surgery right foot; she is also very sensitive to noise as it has her ears with a constant "ringing", which actually would be considered "normal noise level" in my opinion to the average person. Now to my questions, 1) do she have grounds to request that her ear and chest pain claims be reopened? If so, what effective date would she asked for since it has been more than a year from the initial decision denial date? Are there any secondary claims from the bunion surgery that she can possibly claim? Sorry for this being so long but I tried to provide as much info so those with the knowledge and experience in dealing with this can provide some insight with all relevant information available.

Respectfully,

MRRRR5

[Berta]

"1) do she have grounds to request that her ear and chest pain claims be reopened? If so, what effective date would she asked for since it has been more than a year from the initial decision denial date? Are there any secondary claims from the bunion surgery that she can possibly claim? Sorry for this being so long but I tried to provide as much info so those with the knowledge and experience in dealing with this can provide some insight with all relevant information available."

I thought I answered early this AM-I guess that post went into hyperspeace ?

YES by all means re-open the claim for ear/hearing etc-make copies of the SMrs and highlight them with magic markers to where the VA should look-

I think you also had a question re: the EED in another post here:

Did she file NOD within a year after the denial decision?

Since your spouse is also SC for the bunions and they have gooten worse- by all means file a claim for that-how long was she hospitalized-she might be eligible for Temp 100% convalescence- but not sure-

those regs are under the search feature-

Is she employed?

Of not does her SC prevent her from working ?

If so she should apply for TDIU.The meds alone are probavly strong enough to prevent her from working-

She should raise the chest pain issue also with the VA to get a proper diagnosis-and if it is from anxiety or anything that she can attribute to her service she should claim that also.

Is the back pain ,knee pain, etc and even the chest pain possibly due to the bunion situation? all that should be claimed if it is all related to her SC-the pain but also anything that is a physical secondary disability like does she put weight on one side more than other when she walks-VA considers those factors-

also the ringing in her ears is called tinnitus-she should claim it also.

I wonder where my original post went because I think I said more in it to help you-

I will see if I saved it in word- there was flood control here and that is when I lost 2 posts this AM.

[MRRRR5]

Did she file NOD within a year after the denial decision?

Berta, you did answer in an earlier post; I thought you said i should "repost" in this site; I apologize for the misunderstanding. She did not file a NOD because she did not get the medical evidence on time.

Since your spouse is also SC for the bunions and they have gooten worse- by all means file a claim for that-how long was she hospitalized-she might be eligible for Temp 100% convalescence- but not sure-

those regs are under the search feature-

She had the bunion surgery on an outpatient basis.

Is she employed?

No.

Of not does her SC prevent her from working? Yes, it prevents her from working.

If so she should apply for TDIU.The meds alone are probavly strong enough to prevent her from working-

She should raise the chest pain issue also with the VA to get a proper diagnosis-and if it is from anxiety or anything that she can attribute to her service she should claim that also.

Is the back pain ,knee pain, etc and even the chest pain possibly due to the bunion situation? all that should be claimed if it is all related to her SC-the pain but also anything that is a physical secondary disability like does she put weight on one side more than other when she walks-VA considers those factors-

also the ringing in her ears is called tinnitus-she should claim it also.

Yes, at least that is what the pain doctor and the PT says.

[rentalguy1]

Without having filed a NOD within the one year time period, the eed would be the date of the claim to reopen. Once you get it service connected, then you can file a NOD for an earlier eed. You must do this within one year of the decision, and I would ask for an eed of the original claim date.

[Berta]

Rental guy is right-

the EED will be the re-open date-

yes-sorry- I said to re-post here-

was it a VA doctor who diagnosed the Reflex Sympathetic Dystrophy ?

This can be a very dehabilitating disability-

http://www.assh.org/Content/NavigationMenu...ympathetic_.htm

I feel your wife needs to talk to a vet rep- one with offices at or near the VARO she deals with-

if her medical situation is compatible with the symptoms in above link-(there is more too on the net) and she can get a doctor's statement that her SC bunions and the surgery caused this disability (which is definitely possible and maybe she has that in her med recs already)

then I suggest to definitely tell VA all this in the re-opened claim-state it like they are ten years old so they get the connection-and attach this link as a print out and any medical evidence she has that supports this-(such as a copy of any med statement that shows how dehabilitating the RSD is-and that it is due t the surgery for her SC bunion)

Tell them also how her MOS caused the hearing loss and tinnitus

as a matter of fact -I will attach the TDIU form-

it does not hurt at this point to file this form as I see the potential for TDIU here.TDIU is paid as 100% comp rate.

On Question #18 they mean SSA- she should try to apply but must have worked within the last five years prior to application-

as far as I know-

She could try ALLSUP, Inc on the net- these are professionals who can assess her chances for SSA (if she fulfills the whole SSA criteria) right on line-

they if they do take her case -they do charge a fee which is paid out of retro SSA) and will help support her SSA all the way through-

ALLSUP has their own web site and a very high SSA success rate.

SSA itself has plent of sites and even the initial SSA app;ication on line.

If the SSA award comes first- that will help the TDIU claim and vice versa)

# 25 on the form-refer them to additional pages and put her c file number, name, address on these pages and tell them basically what she is claiming and why (the service links)and make sure they know the bunions are SC and the contributing factor here to the RSG and then tell them how the medications (side affects)she needs would prevent anyone from being able to work.Her meds come with a print out as to side affects or go to any good medication web site and send this info as evidence of the affect to her from the meds side affects.

If the Vet rep you get says she cannot file TDIU form yet- let me know here-and I will explain to the rep that she can certainly file for TDIU. Or just give them copy of this post and if they need to contact me that can be arranged-

TDIU -this form nor the actual regs has NO provision whatsoever for any initial SC% that prevents a vet from filing for TDIU.

The VA however is only going to consider TDIU and send this form if the vet reaches 70% SC.

Many reps and vets do not kow that they can apply for TDIU regardless of their rating if their SC disabilities prevent them from working.

Here is the form.

Does she get private care? That doc might be willing to prepare an IMO and maybe for free or low cost.

Please see my past post Getting an IMO under the search here if she might need an IMO.

TDIU_form.pdf

[MRRRR5]

Thanks Berta & Rentalguy for the replies.

Berta, you are very knowledgeable on this and I really appreciate your suggestions and insight on how to proceed; to answer your questions:

No, it was not a VA doctor who diagnosed the RSD; it was a military doctor (Podiatrist) who did the bunion surgery.

We checked the SSA website and she does not meet their criteria for the last 5 or 10 years of work in the same period (stay at home mom while I was AD; after I retired, she was going back to school to get back in the work force while I take care of home- :) .

She does not receive private care (can't afford it).

[MRRRR5]

Berta & Rentalguy,

just an update; spouse filed for SSDI but was denied due to not enough credits in the right timeframe; called a law office to get an initial consult to see if an appeal was worth it and they said it was not. SSI is out of the question because of my income.

She had her C&P this past week for TDIU as well as Temporary 100% rating due to convalescent, and several other secondary SC claims (RSD, bilateral knee, right foot); also the reopened ear and chest pain claim.

Although the notice stated the items listed above, the examiner primary focus was on my spouse left foot, which is where most of the other secondary claims originated from. The examiner did ask several questions about the RSD and "it's impact on her daily living". My wife was too emotional to do any talking and cried the whole time because this has really set her back and asked me to do the talking for her. I informed her of the medication side effects and that she is not able to do the normal things that she used to cook, clean, grocery shop, not able to get in the tub without assistance, and overall, it has been a real nightmare for her, the kids, and me. I also explained that the mood swings are taking their toll, short tempered, ok at times and then at the drop of a dime, will just snap at the smallest thing done wrong or the "tv being too loud". I explained to the examiner that both our kids (a sophomore & junior this current year that just ended) have consistently made the principal's list for maintaining an "A" average since entering high school. This is the first year that my spouse has not been to any events at the kids school due to her condition and the medication. I explained that she is still in treatment with a pain specialist who just took her off percocet and put her on morphin due to the percocet not providing the relief that it once did and the pain specialist stating that is because her body has gotten use to it so they need to switch up the medication. I also provided the examiner a report from an independent medical exam that spouse had in March 2008 from another Podiatrist who basically confirmed the RSD and stated that my spouse foot on x-ray "looks like that of a 70 year old woman" due to the loss of bone mass from lack of use of the foot (spouse is under 40) so this brought on more crying when i explained that and handed the examiner the report. The examiner gave my spouse some tissue and asked if she could walk any on the foot because she needed to check her "gait" and at what point she feels pain, to which my spouse stated the pain is constant and any pressure exacubates the problem even more. I wheeled her up in a wheelchair because of the distance from the main door to the C&P office. The examiner then asked how long she can stand on her foot before having any pain, given the example 1-5 minutes, 5-15 minutes, 15-30 minutes, or 30 minutes or more. My wife said less than a minute because of the constant pain. When the examiner asked to look at both feet and i got my spouse oversize slipper off the left foot and her tennis shoe off the right foot (the left foot is too sensitive due to the RSD to put on anything firm and has been since the surgery), the examiner was shocked at the swelling of the left foot, which i explained that to us, that is not really swelling compared to the photos I showed of what we were used to seeing as "swelling". At that point, the examiner stated that since x-rays were already in the sytem from spouse seeing a VA Podiatrist in early April 2008, she did not need to do any (I believe the examiner saw the pain my wife was in and it was starting to increase with the swelling) and that she could leave now.

My question is since the examiner did not mentioned anything about the ear, chest, knees, and right foot, should we request another C&P for these are wait until we hear from the VA on this decision?

Sorry this is so long but, again, i wanted to make sure i provide as much detail and clarification as possible.

Respectfully,

mrrrr5