My Nod Letter.. Opinions Anyone/

[Quint7]

Here is what I'm going to have my rep send in tomorrow along with a copy of the training letter for IVDS, a buddy statement and pictures depicting damage to a vehicle I was in along with a couple of pics of the vehicle so that they can get an idea of the size of it. I removed my contact info and file number, but it is included on the actual letter.

Let me know if anyone has any input on it please. Jason

Please accept this letter instead of the official VA document requesting a NOTICE OF DENIAL for my claim that was settled on 28 Feb 2008.

I disagree with the decisions of both the examiner (Heater Ellwanger, PA) from my C&P exam dated 28 Jan 2008 and the decisions of the rating board or 28 Feb 2008. I will list my disagreements and my evidence for them in this statement.

My C&P examination last approximately 10-15 minutes. The exam was to cover my request for a raise in compensation for my right knee condition and service connection, either directly or secondary to my knee, of my back condition.

The examiner stated that in her opinion, my back condition is “less likely than not” related to my knee condition. She never addressed the issue of direct service connection as my notices from the VA stated. She also failed to address any other issues with my right knee other than what it was previously rated (0%) for, which was a medial meniscus tear.

During my exam, the examiner read off of a check list and asked me questions. She then took measurements of my right knee (done while supporting myself with my hand) and lower back range of motion (ROM). At no time did she request that I remove any clothing or expose and body parts for her to examine. This was the extent of the exam for the most part. The examiner also asked what I did for a living and I told her that I am a firefighter for the City of Rochester.

One of the examiner’s questions about both my knee and back, was how does this affect me. NOT HOW DOES THIS AFFECT MY DAILY LIFE, HOW DOES THIS AFFECT ME. I used examples from my work as a firefighter and told her that as far as my knee was concerned, it was difficult to kneel, to climb ladders and to lift patients. As for my back, I again answered using examples from my work. I stated that it was difficult to lift, to climb ladders and to get out of the bed at the fire station. I also told her (as is listed in her report) that my back makes it difficult to walk for longer than 20 minutes, stand for longer than 15 minutes and sit for longer than 15 minutes.

The examiner states in her report that in both cases I claimed NO EFFECTS ON MY ACTIVITIES OF DAILY LIVING!

I was never specifically asked about my daily living, but even a layperson could equate my answers to daily life. Had I been asked to specifically comment on effects to my daily life I could have given a long list. Kneeling to get things from lower cabinets at home, climbing stairs at home, lifting bags of groceries out of the car at home and getting out of bed at home could have been my answers for my back and knee had I been specifically asked HOW THEY EFFECT MY NON WORK RELATED LIFE. In addition, to say that stating I can’t walk longer than 20 minutes (as in to and from my corner store),, can’t stand for longer than 15 minutes (again, in line at a store) or sit for longer than 15 minutes (eat at a restaurant) equates to claiming that there is no effect on my daily life is ridiculous!

After the examiner finished her measurements she asked if I had ever had an MRI on my back. I told her that I did had and had the actual MRI films with me. She said that all she wanted was the MRI report. I gave that to her, along with the doctors notes from my visit to Dr. Gordon Whitbeck, my back specialist. She read them over and took notes. She then stated that she was all finished. She never asked about my time in the Marines or what my job in the Marines was. I asked if I was allowed to say anything. She told me if I wanted to, to go ahead.

I told her that I had been told by my doctors that my right knee had been injured and misdiagnosed by the military so long ago that it had caused my kneecap to ride to the far right of my leg, especially when bending it. This caused pain and made it difficult to bend the leg or kneel down. She acted surprised and asked me to show her. I lifted my pant leg and showed her that the kneecap rode off to the right side, even more so when my leg was bent. She had me relax so she could do some manual moving of the joint, but I must stress that SHE NEVER HAD ME DO ANY KIND OF WEIGHT BEARING TESTS ON THE KNEE TO CHECK STABILITY.

I also told her about hurting my back playing basketball in the Marines and how it was in my record. I even asked if she had seen my record and she pointed to two large folders and told me that both were mine. She then said that she had reviewed them. I also mentioned backing my armored vehicle into a bunker in the Gulf War. She nodded and said that that was fine, again I was all set. I let the room after that.

I DISAGREE WITH THE EXAMINERS FINDINGS IN THE FOLLOWING WAYS:

The examiner finds that I had a right meniscus tear and lumbar degenerative disc disease.

There is no mention of the CHRONDOMALACIA (also known as patella femoral syndrome) in the diagnosis. That not only is in my records (from Dr. Carrier) but was noted during the exam as “On flexion, the kneecap is deviated laterally”. A thorough review of my file would have seen this as a current condition documented by Dr. Carrier, yet the examiner was surprised when I brought it up and explained that it was due to the duration of my misdiagnosis and being told by the Navy doctors that nothing could be done about my knee.

There is no mention of sciatica in the final findings. Even though it is mentioned during the exam that I stated the pain radiates down my back to my right thigh and shin and is listed as part of the diagnoses on the exam note from Dr. Gordon Whitbeck that I gave her to review.

The examiner copied word for word the RADIOLOGIST’S report from the MRI on my back. Even though the report I gave her from Dr. Whitbeck explains that there is also degenerative disc disease to my disc at L4-L5 AND L5-S1 AND SCIATICA, along with motor changes at the endplates of L4-L5 and an area of HIZ at L5-S1.

The examiner states that my spine condition is less likely than not secondary to my knee condition. She also states that it may be due to my career as a firefighter. I feel that this opinion is biased as I am young, healthy appearing person who has a career that is stereotyped by the public and was by the examiner.

At no time did the examiner address service connection of this condition as was stated in the letter dated 12 June 2007 that says the VA is “working on your NEW service-connected claim for low back condition.

At no time did the examiner address my time in the military or what I did for work or on a daily basis there. She instead focused on my currant career, again stereotyping me as a young, healthy person engaged in what the public thinks it knows about firefighting.

I DISAGREE WITH THE RATING BOARDS FINDINGS IN THE FOLLOWING WAYS:

I believe that the rating of DX code 5262 (malunion of tibia and fibula with slight inpairment, rated 10%) should be RAISED TO 20% as it is not a mild, but MODERATE disability that I suffer from.

the DX code of 5257 should CONTINUE to be applied for my knee due to the chrondomalacia (patella femoral syndrome) as DX code 5257 covers SUBLUXATION which would be the issue documented by Dr. Carrier and explained to the examiner. This is the result of years of following the misdiagnosis of military doctors. This is also MODERATE in nature and should be rated at 20%.

The rating board dismissed my claim for my lower back condition as the same as denied in 1995. The rating board stated that for the condition to be directly service connected, “objective evidence that a disability began in the military or was caused by some event or experience in service, along with a current diagnosis of the condition and a link between the in service incident and your current diagnosis of the condition. Based on the medical evidence available these requirements have not been met. I state that the rating board failed to follow VA’s own guidelines on this matter and I reference VA TRAINING LETTER 02-04 FROM 24 OCT 2002 TITLED “TRAINING LETTER ON INTERVERTEBRAL DISC SYNDROME.

The rating board failed to follow the guidelines as laid out in this letter as to my back condition and simply took the old DX code of 5237, low back strain and applied it again. The proper decision would have been to apply DX code 5243, intervertebral disc syndrome and rated me using the new criteria and the results of the C&P exam that confirmed IVDS (listed as degenerative disc disease) and give a rating of 40% based on a range of motion (ROM of less that 30 degrees flexion).

TRAINING LETTER 02-04 SPELLS OUT THAT:

IVDS may also be referred to as slipped, herniated, ruptured, prolapsed, bulging, or protruded disc, degenerative disc disease (DDD), sciatica, discogenic pain syndrome, herniated nucleus pulposus, pinched nerve, etc. There may be some differences, but these terms are not well-defined and are often used interchangeably.

IVDS commonly includes back pain and sciatica (pain along the course of the sciatic nerve) in the case of lumbar disc disease, and neck plus arm or hand pain in the case of cervical disc disease. It may also include scoliosis, paravertebral muscle spasm, limitation of motion of the spine, tenderness over the spine, limitation of straight leg raising, and neurologic findings corresponding to the level of the disc. If the disc compresses the cauda equina (the collection of nerve roots extending from the lower end of the spinal cord), bowel or bladder sphincter functions or sexual function may also be affected.

Risk factors for IVDS include genetic factors, being a male, having a smoking history, and having a job that involves heavy lifting, bending and twisting into awkward positions, or prolonged whole body vibration. Occupations at risk include long distance truck drivers, soccer players, golf players, and competitive weight lifters.

Onset of symptoms varies, but commonly begins either as gradual, progressive back pain; sudden back pain after significant trauma; or back pain after minor trauma.

Back pain may be the primary symptom, but pain in the distribution of the irritated or compressed nerve root may also be primary. However, some people have no back pain at all.

There may also be "referred" pain in the buttocks, sacroiliac joints, and thighs. Referred pain is pain perceived in an area of the body that is far away from the site of pathology.

May be sciatica, which is sharp, burning, or stabbing pain radiating from the low back down the posterior thigh and posterolateral lower leg, and possibly into the side of the foot. It is due to S1 or L5 radiculopathy.

Pain is worse when sitting and standing than when lying down, and coughing, sneezing, bending, or heavy lifting may aggravate the pain.

Magnetic Resonance Imaging (MRI): Is the gold standard for visualizing a herniated disc. It can show annular tears and other anatomic details. Does not require an injection.

Most patients recover within four weeks of onset of symptoms, regardless of type of treatment.. Sciatica resolves in 75% of patients within six months. When conservative therapy fails (which occurs in about 10%), surgery may be needed.

I will include a complete copy of this training letter with this statement.

I know that under this criteria, my original injury in service, along with my personal statements about other times that I had similar incidents but sought no treatment (again do to a misdiagnosis the first time, similar to my knee), along with my military occupation demonstrate that the assignment of DX code 5237 is incorrect and should be changed to DX code 5243 and service connected.

I will attach a description of my military job along with a statement from William Swanberg whom I served with and who witnessed me involved in two accidents with my armored vehicle along with his statement. I will also include photographs of the damage to one of the vehicles and photographs showing the size of the vehicles involved.

I will also state how these relate to Training letter 02-04 and should be taken into consideration in the decision to rate me under DX code 5243.

Most importantly, the VA examiner agreed with the diagnosis of IVDS (listed as degenerative disc disease).

I have sent in multiple statements about how this affects me and I will now explain how, using VA TRAINING LETTER 02-04, this condition is service connected.

According to the statement from William Swanberg and supported by photographic evidence and my own statement, I struck the ship USS Tuscaloosa, LST1187 with an Assault Amphibian Vehicle (AAVP7A1), a 26 ton armored vehicle, while disembarking into the ocean. This collision was significant enough to cause the damage depicted in the photograph of myself and William Swanberg from 1989.

According to the statement from William Swanberg and supported by my own statement, while driving my AAVP7A1 in combat operations in Kuwait in 1991, I backed the vehicle into an approximately 10 foot deep bunker, causing enough shock to the vehicle to cause immediate repairs (replacing the drive tracks onto the drive sprockets and wheels) during ongoing combat operations.

According to the statement from William Swanberg and supported by my own statement, we routinely carried heavy equipment and had to run and exercise in the desert while deployed for Operation Desert Shield/Storm.

According to the statement from William Swanberg and supported by my own statement, I was one of the few members of our unit that could move the tow bar used to move a broken down AAVP7A1 alone. Also, moving heavy machine guns and oil and water cans routinely is mentioned.

According to the statement from William Swanberg and supported by my own statement, driving long distances during field operations, including having to stand in the turret during driving was a regular occurance during my entire enlistment.

These activities were not confined to my service in Operation Desert Shield/Storm, but were the day to day activities for my entire 6 year enlistment as a crew member of an AAVP7A1. Also, normal military duties such as running, marching, training in the field, etc. went on on a regular basis during my entire enlistment.

Although none of these incidents state that I went to seek medical help at the time for back pain, VA TRAINING LETTER 02-04 states that “Back pain may be the primary symptom, but pain in the distribution of the irritated or compressed nerve root may also be primary. However, some people have no back pain at all.”. It also states that “Risk factors for IVDS include genetic factors, being a male, having a smoking history, and having a job that involves heavy lifting, bending and twisting into awkward positions, or prolonged whole body vibration“. On a 26 ton vehicle almost everything is heavy. Preventative maintenance work often involved just such twisting and bending into awkward positions, even inverting oneself to gain access to certain areas. Also, all armored vehicles vibrate nonstop when operating.

In my service medical records it states that when I was seen for back pain the medical staff would “consider Xray, ortho, pt, etc if no progress”.

One of the reasons given for the initial denial of service connection in 1995 was “service medical records show treatment for lumbar strain however, this was shown to be a temporary condition which resolved itself with treatment, and no permanent residual disability was shown at the time of separation.”

VA TRAINING LETTER 02-04 states that “Most patients recover within four weeks of onset of symptoms, regardless of type of treatment.” Therefore CLAIMING THAT THIS CANNOT HAVE BEEN THE ONSET OF IVDS, when there was no diagnostic imaging done at the time or that the condition healed itself for the time being is INVALID.

I stated previously in letters to support my claim that similar injuries occurred during my time in service but that I did not seek medical care for them at the time due to previous diagnosis as “lumbar strain”. This included during weightlifting, which I did regularly during my time in service. In my records from Dr. Susan Siriani, dated 1 Feb 2000, she noted that I stated that I had two injuries in the Marines during 1993, one the basketball incident and another while “lifting dumbbell 90lbs each seated”. Also contained in her report is an Xray reading that shows “MILD DEGENERATIVE CHANGES L4-L5 AND L5-S1”. The xray is dated 12 Apr 2000. This was not mentioned anywhere in my denial or by the C&P examiner’s report. This is the only x-ray that I know of having of my back up to that time, but it does show definite changes.

VA TRAINING LETTER 02-04 states that “Occupations at risk include long distance truck drivers, soccer players, golf players, and competitive weight lifters.” I have stated that I had multiple episodes similar to the documented one while lifting weights while in service. It also states “Most symptomatic lumbar disc disease occurs between ages 40-55. Cervical disc disease is more common at an older age.” I was 30 years old at the time of Dr. Siriani’s x-ray and already had changes to two levels of my discs.

In summery, I am of the opinion that:

The C&P examiner failed to fully and accurately review ALL medical records and did not complete the background questioning for the exam properly, nor list all medical problems found..

That the examiner was biased in her opinions due to my physical appearance and current occupation and her examination techniques and findings reflect this.

That the examiner and rating board failed to follow the guidelines set out in VA TRAINING LETTER 02-04 in deciding to service connect my conditions and then rate them accordingly.

That a review of this decision be made and the proper DX codes, service connection and appropriate compensation be given to me for these conditions.

[Berta]

He is probably OK Quint-

it is just that-

as God is my Judge I am doing everything in my power to change the way NYS Division of Veterans Affairs does business.

They do have some great reps and some that are incompetent-

I work many hours a day off this board in countless areas all designed to make sure vets get their proper comp and there are individuals at NYSDVA who have been compromising the hard volunteer work that I and other NY vets advocates do

It can take quite some time to figure out of a rep is really doing a good job or not-

and many vets dont know how the system works enough to figure out of they DO have a good rep-

I got 2 lawyer contacts from another lawyer as to potential class action on behalf of NYS vets and widows against NYSDVA-

I will gladly pay the legal fees-

it all takes time though and I did name some vets who were hurt by NYSDVA as well as me in my formal complaint.

By the way does anyone know why their director (also named in my VA OGC complaint) was suddenly replaced by the Governor?

[Chuck75]

This is quite common in a case against the state government. Although I think that the director might also be named, as well as the individuals who were directly involved. State laws vary concerning this sort of thing. In some states (mine) the state employees cannot normally be sued directly. They are responsible to the system, and you must sue the system, which has "sovereign immunity". The exception is when a felony is committed, and the actions cannot be said to be under the duties of the state employee. This is a useful area, since, at least in theory, following the various laws and regulations properly does not result in a crime. Malfeasance in office may apply to the director.

This whole thing about libility was of major concern to me during my working days. I commonly did the same tasks as a GS-10 or 12. The GS'ers were protected by the "sovereign immunity" bit, and I was not, since my services were contracted to the government.

"By the way does anyone know why their director (also named in my VA OGC complaint) was suddenly replaced by the Governor?"

He is probably OK Quint-

it is just that-

as God is my Judge I am doing everything in my power to change the way NYS Division of Veterans Affairs does business.

They do have some great reps and some that are incompetent-

I work many hours a day off this board in countless areas all designed to make sure vets get their proper comp and there are individuals at NYSDVA who have been compromising the hard volunteer work that I and other NY vets advocates do

It can take quite some time to figure out of a rep is really doing a good job or not-

and many vets don't know how the system works enough to figure out of they DO have a good rep-

I got 2 lawyer contacts from another lawyer as to potential class action on behalf of NYS vets and widows against NYSDVA-

I will gladly pay the legal fees-

it all takes time though and I did name some vets who were hurt by NYSDVA as well as me in my formal complaint.

By the way does anyone know why their director (also named in my VA OGC complaint) was suddenly replaced by the Governor?

[Quint7]

Berta, maybe he knew something about Elliott's little hobby........ and left on his own!!!!!! LOL

seriously, I appreciate all of the advice that you and everyone else has given me on here in the past few months. I spoke to my mom the other day and told her that if I had known in 2001 1/2 of what I know now...... well maybe my parents would have been able to at least keep their house while waiting for my step-dad to get his claims settled.

I planned on requesting a DRO hearing, I didn't know it was actually meeting with the DRO. I thought it was a DRO reviewing the file to see if something was missed. SOmething else to start learning about.

[Quint7]

I found the following link on nexus letters... shoud be made a stickey!!!!

http://www.vawatchdog.org/08/nf08/nfJAN08/nf010708-1.htm

Here is what i am taking to my doctor tomorrow.

Nexus letter for service connection from primary health care provider.

The following are required statements that must be made on any document submitted from a veterans primary health care provider in a nexus letter.

The relationship of the person providing the statement, re “I _______ am ______ primary physician and I have been since 19__ and is currently under my care“.

A listing the person providing the statements professional degrees, certifications, etc.

A statement that the person providing the statement has reviewed ALL medical records of the veteran, INCLUDING Service Medical Records.

A statement confirming that the veteran currently suffers from the condition for which service connection is requested and that you have recently examined the veteran for this condition.

A brief synopsis of experience that the person providing the statement has had in treating other patients with the same condition.

A brief listing of the injuries, activities, etc that occurred in service that led to the veteran’s current condition.

A statement as to how the current condition is affecting the veteran’s overall health and well-being.

Finally and most importantly, the person preparing the statement must use either “it is more likely than not” (probability greater than 50 percent) or “it is at least as likely as not” (i.e., probability of 50 percent) that the veteran’s current condition was incurred or aggravated during active service. The person preparing the report could state that could state that as it is recognized in medical literature and in his own personal experience that the current condition could not have been as severe as it is today were it not for the injuries, activities, etc that the veteran experienced during his/her time in service, to include any other injuries that although not under review at this time, were factors in the current condition.

The following is an example of a rough outline of the basics of a nexus letter:

DATE

Reference: YOUR NAME

YOUR ADDRESS ETC.

To Whom It May Concern;

I am Dr. Quack. I am board certified to practice in my specialty. A CV is included.

Mr. John Doe is a patient under my care since DATE. His diagnosis is YOUR CONDITION, etc.

I have personally reviewed his medical history (NAME DOCUMENTS) and I've also reviewed his history of the (EVENT OR EVENTS YOU CLAIM ARE THE CAUSE OF YOUR CONDITION) while he served during his military service.

I am familiar with his history and have examined Mr. Doe often while he has been under my care. (SPECIFY LAB WORK, X-RAYS, ETC.)

Mr. John Doe has no other known risk factors that may have precipitated his current condition.

In my personal experience and in the medical literature it is known, ETC.

It is my opinion that it is more likely than not that Mr. John Doe's condition ETC.

SIGNED

Dr. Quack, M.D.

My only concern is that my PCP (primary care physicician, private) is only a PA. I really don't think it matters as the VA used a PA for my C&P. I will also remove the line in my NOD about them only using a PA becasue of this.

Any opinions?

Thanks! jason

[Quint7]

Well if any of you are still reading along, I met with my doctor today......

Well if any of you are still reading along, I met with my doctor today...... THAT

[Quint7]

Well if anone is stil reading along, I met with my doctor a little while ago today and THAT DID NOT GO WELL!

She said that she had never been asked to write anything like this, that she wasn't sure about it, that she didn't really feel that the VA should be on the hook for "the whole thing with my back, if they only caused part of it".......... ***** ME!

I tried to explain that nobody from the VA will call, that I am not looking for a 100% statement that my back condition started in the service, that I am just looking for a statement that it is 'at least as likely as not" and she said that she didn't know if it was.

She went on and on about how I could just be one of those people that this was going to happen to no matter what I did for work, that maybe being in the Marines did move the damage along more quickly than it would have otherwise, blah, blah, blah.

THAT is exactly what I was trying to get across, that had I never been in service, my back might still be messed up, but not AS messed up. "DO I know that for sure?" she kept saying..... UGH!!!!!

I don't want to spend a huge amount of money to get an IMO when as some here have said, a NORMAL person reading everything, esp. the VA Training Letter can connect the dots.........

I haven't been this pissed off in a long, long time...........