Nod To An Opinion From C&p- How'd I Do (long)

Jayg · April 3, 2008

Well, here I go. I had a C&P exam on my flat feet only last year. As noted in another topic, the VARO requested a medical opinion. On just what is not clear. The report was supposed to focus solely on the flat feet, I think. But it rambles onto other matters I thnk, it isn't always clear. Anyway, in reply I broke it down and adressed each item at a time. The report statements are entwined ith mine so the gist should be clear.

It's long and for that, I apologise. I haven't sent it yet, this is first draft...

I write concerning the C&P statement issued 3/18/08 addressing employability and flat feet.

One paragraph states that I was "laid off as per post military note on the aforementioned exam." I do not dispute the cause of my lay off. The company will not state otherwise. But that is immaterial. What matters is the fact of my inability to find or maintain gainful employment from that time as evidenced by the many pages of work search log sheets for the State Workforce Commission. I was completely unable to secure gainful employment in the field for which I was trained and experienced and my condition is far worse now.

The next paragraph states; "As far as flat feet causing the neuropathy he does not have flat feet by radiological criteria, please see the X-ray report already presented." The fact of my flat feet has already been established. I do not know about "radiological reports." But I do know my feet are flat as reported in my military records, as evidenced by the wear pattern of my boots, and by looking at my feet. The absence of callous is a result of my wearing shoes or slippers all the time. My feet hurt abysmally if I do not. Also, I do not spend much time on my feet or walking. Those are the things that cause callous and are things I do not do well.

The third paragraph states: "On the day of the C&P exam the veteran only complained of pain as per record, the tingling, and burning is only reported when he fell and injured his knee. see report of December 14, 2007 by nurse:"… I do not accept this statement as entirely accurate. Examine the part "… only complained of pain as per record," the word "only" here does not belong and is misleading as read. Yes I had pain as "per record." Note as well there is a history of problems. That is the "record," not "only," not one incident.

The next sentence is garbled and not entirely clear to me but I will address it as well as I can: " 'I fell 5 days ago knee and it started swelling shortly afterwards c/o burning, tingling, and redness'. Taking pain medicines that are prescribed for arthritis."-- Pain.-- They left out the word pain. I am in constant, unremitting pain and am taking strong medicines for it. These medicines alone would restrict my ability to obtain gainful employment.

Then the paragraph that states: "Subsequent visit by primary care concern of back and knee pain, a neurology evaluation on 3/11/2008 reports abnormal nerve conduction studies of the veteran as idiopathic."

If the cause of my neuropathy is given as idiopathic, no reason or cause is determined or offered, then it is as likely as not that it is the result of and secondary to my flat feet and sc L ankle injury. The connection is not unknown. I thus submit you must grant service connection lacking evidence to the contrary.

The last item in the statement: "As far as employability, since I am exam only on flat feet, that does not prevent from gainful employment."

Please note that being a machinist requires long hours of standing. Many shops demand that personnel remain standing for the full period of their work shifts excepting only break times. Those shifts can and often do run to 12 hours a day, 6 or even 7 days a week. There is no way I can do that. It is impossible. I submit that my flat feet, if not appearing too bad during a 15-20 minute exam, would quickly and completely fail me in any such work environment. I cannot stand through a shopping trip with the family to Walmart without quickly finding myself in agony.

It was once noted that a letter I had written suggested I had sufficient skills for "more sedentary kind of work." As this sentence is written, I have been working on this for 3 hours and this is only a draft. The version you will read will be the result of more work and reviews and necessary corrections from my wife and others. How do I enter that on a resume? "Have written letters to VA."? Not much of a recommendation, is it?

I barely passed high school. Other than vocational courses in truck driving and machining, I have no additional schooling. I have no training, experience, or skills in "more sedentary work" that would provide "gainful employment."

The examiner may have had to attend only to the matter of flat feet. But that is not the sole issue affecting my employability and perforce I must look further and so should you. I submit that my flat feet, not alone but in conjunction with my sc L ankle, are directly responsible for secondary conditions that further limit my ability to obtain gainful employment. These two conditions brought about an altered gait (see many references in record to "gait: weak, transferring) upon which I've labored for at least the 26 years since my discharge and are directly responsible for the secondary conditions noted in my claim. I disagree that you can so separate and isolate my feet when they are but one part of the equation totaling my disability to find gainful employ. I submit it is upon the total you must judge my condition.

tssnave · April 5, 2008

Couple more things:

I am not clear at what point you rewrote the letter but please remove this line:

"I thus submit you must grant service connection lacking evidence to the contrary."

The VA operates on an "at least as likely as not" requirement. We all have to prove the service connection of our disabilities with evidence, not the lack of evidence.

Also, you state the an IMO is not an option. If you are retired, how about going to a TRICARE provider and getting a copy of the treatment notes. If you are at an income level that would make you eligible, go to your local health clinic (be prepared to spend the day) and talk to a doc there who could give you a copy of your treatment notes. Also, call social services and see if any local ministries have a free health clinic. I don't live in a very large town but there is a very nice free health clinic that a church operates that sees anyone who walks in the door for free, no questions asked. The goal here is for a doctor to give you more evidence to win your claim and if you can't afford to pay for an IMO then you may want to seek out other healthcare options that would, at the least, give you treatment notes to submit as evidence.

TS

Jayg · April 5, 2008

Couple more things:

I am not clear at what point you rewrote the letter but please remove this line:

"I thus submit you must grant service connection lacking evidence to the contrary."

Also, you state the an IMO is not an option. If you are retired, how about going to a TRICARE provider and getting a copy of the treatment notes. If you are at an income level that would make you eligible, go to your local health clinic (be prepared to spend the day) and talk to a doc there who could give you a copy of your treatment notes. Also, call social services and see if any local ministries have a free health clinic. I don't live in a very large town but there is a very nice free health clinic that a church operates that sees anyone who walks in the door for free, no questions asked. The goal here is for a doctor to give you more evidence to win your claim and if you can't afford to pay for an IMO then you may want to seek out other healthcare options that would, at the least, give you treatment notes to submit as evidence.
TS

Wow! Lots of stuff here. Yeah, that line (and a lot of others!) is gone.

I think some more background is in order.

This C&P opinion was supposed to be pointed at TDIU & flat feet-only. The opiner went some beyond that and then fell back on it.

My rating currently is for flat feet (sc10%) L-ankle (20%) tinitus 10% (not being appealed) bilateral hearing sc 0% (not being appealed just now).

My whole claim/appeal is for r ankle, both knees, R hip , low back pain & peripheral neuropathy as secondary conditions and TDIU. In the process I have developed arthritis. That is not specifically claimed but my last SSOC said "It is noted on the VAMC report severe debilitating arthritis; however, service connection for arthritis has not been established." Sounds to me like they want a connection and I'm trying to find them one.

I do have altered gait logged in the records. Guy at Phys Therapy said I 'roll like a sailor."

I am not "retired. I get no pension or other compensation. I am going to apply for SSD.

I am not illiterate but neither am I educated. no college. Since the military I was a construction worker, truck driver, factory worker and machinist. I barely passed high school and have no college. I can peck out stuff like this on the c'puter but am far from being "computer literate.

Meds? I take a narcotic, tramadol, baclofen, naproxen sodium, and mirapex. Concentration? hardly! I wear a knee brace and use a cane, my ankles turn and knees give out. I stumble and fall easily. Since I last worked, even walmarts, Home Depot and Lowes turned me down. I am not able to re-enter the workforce.

The local clinic is not interested in helping me either, I've been there. And they are not "free." At least, not for me. I went there for a toothache once and they scheduled me for 3 weeks later and wanted $100 to do it. They also counted my VA comp as "income."

There's more, but that's the nut shell.

1. You never specifically requested EXTRA SCHEDULAR consideration for IU since your "case presents such an exceptionalor unusual disability picture with such related factors as marked interference with employment"

Sounds good. not sure I understand it, Is it asn SOP?

2. Your wife needs to write a Statement In Support of Claim (it's a VA form) explaining that she is the one doing your paperwork on your behalf.

Form 21-4138?

Actually, we've stated that somewhere along the way but I don't think we've made it a seperate statement.

Thanks again

Edited April 5, 2008 by Jayg

Berta · April 5, 2008

I suggest you first search hadit- as I posted info and a BVA case on extraschedular here fairly recently-

also search the BVA and CAVC web sites under Extraschedular- to see if any awards were made and why- and then- since you have raised this issue as a TDIU issue-

I fully believe that it will take an independent medical opinion for you to prove to VA that you should be granted TDIU.

I have a friend at the VA- he had SC brain injury and has a hole in his forehead due to the brain surgery. You can see right into his brain.

The VA wont close this hole for some reson-maybe it is a shunt-

however- a normal VA rating for this could have been very low as he has very few residuals -surprisingly- from this brain trauma-

but who will hire someone with a hole in their forehead where you can see right into the vet's brain?

The vet is so easy to talk to that I always forget right away that he has this hole in his head because I know him so it seems normal but he sure gets a lot of stares when he goes to K mart etc.

There are probably other things VA considered too in his case but he gets 100% extraschedular as he clearly depicts a veteran technically at a lower disability VA rating level but with obvious exceptional circumstances.

Berta · April 5, 2008