Bva Ruling 1991 For Lower Spine.

[Brax]

I need advice from you good veterans. I've been stuck in this VA claim quagmire since 1991 and it just keeps getting worse. I'll give a quick history.

In 1989 I had surgery on my lower lumbar at Walter Reed MC. The doctors performed a laminectomy of the L4-L5 disk (complete removal) with a spinal fusion with steffy plates and bolts from L4-S1. Upon my medical discharge the Army rated my spine injury as the following: #5292 Limitation of motion, lumbar spine, following surgical fusion of L4 through S1, April 89 with spinal decompression and L4/L5 diskectomy; requires clam shell brace. Percentage 40%. After discharge my medical records were sent to VA, months later their rating came back a follows: #5293 Spinal Disc Condition of L4-L5 20%. A CUE was filed along with many appeals to no avail.

During the time frame from 1989 to present I have had 8 additional disk rupture through out the length of my spine. I have filed claims seeking service connection on the additional ruptures stating it has been referred from the original injury, again to no avail. The VA's response is that the spinal disk decease at the L4/L5 has not worsened.

I recently had a service officer review my claim history. This is what was determined. That the rating the VA gave me in 1991 is a Clear and Unmistakable Error because the VA states the L4/L5 disk is diseased when in fact the L4/L5 disk was completely and entirely removed in 1989, the L4/L5 disk was completely replaced with bone fusion. Also because of the wrong rating the claims that were filed on the additional 8 ruptured disk VA would not allow the C/P doctors to take in consideration all of the surgical reconstruction done to my lower lumbar, the VA would only allow the doctors to consider if the spinal disk disease at L4/L5 had worsened. Of course the disk had not worsened because it was removed in 1989 so they denied the claims.

We filed a CUE this year stating that it is impossible for me to be service connected for spinal disk disease of the L4/L5 when the disk was completely and entirely remove in 1989. The claim came back denied stating the BVA in 1991 had ruled on the matter and the VA Regional Office had no jurisdiction in the matter.

I've been told since the BVA ruled on it in 1991 that there is nothing I can do. I do not want to believe there is nothing I can do after fighting the VA for the last 18 years.

I'm asking for suggestions and advice,

Thank you,

Brax

[Berta]

a long shot but is this your BVA claim?

http://www.va.gov/vetapp08/files2/0815476.txt

[Brax]

Thanks for the quick response Berta,

No, this in not my BVA decision. The last filing was a CUE with the Ohio Regional Office, they said they did not have jurisdiction in the CUE. They said that the BVA had ruled on a CUE in 1991, I had no ideal this had occured.

Brax

[carlie]

I would tell BVA I never received a copy of their decision that denied a claim of C&UE

and request they mail me a copy.

jmho,

carlie

[jbasser]

Find your Docket number at the VBA website and post your decision.

In order to claim a CUE yopu need to prove that the VA violated procedural error.

It would be the type of error that is clear cut.

We need more information so that the CUE experts here can decipher the ruling and see why they denied your claim.

J

[Brax]

It took me awhile to get a copy of the BVA decision; you may want to read my original post on this topic to refresh what is going on with my claim. I have also included a scan of the Army PEB decision from 1990 and my current status sheet from the VA. I really appreciate your time, effort and advice with helping with this. If you need more information or clarification on anything let me know. Thanks again.

ArmyPEB120690.pdf

VAStatus.pdf

[Brax]

It took me awhile to get a copy of the BVA decision; you may want to read my original post on this topic to refresh what is going on with my claim. I have also included a scan of the Army PEB decision from 1990 and my current status sheet from the VA. I really appreciate your time, effort and advice with helping with this. If you need more information or clarification on anything let me know. Thanks again.

bvapg1.pdf

bvapg2.pdf

bvapg3.pdf

bvapg4.pdf

bvapg5.pdf

bvapg6.pdf

bvapg7.pdf

bvapg8.pdf

bvapg9.pdf

bvapg10.pdf

bvapg11.pdf

bvapg12.pdf

[dav_marine72]

Brax,

Did you file a motion for reconsideration at the BVA back then? How about an appeal with the U.S. Court of Appeals? Like jbasser said you'll need to prove they made a procedural error to go back to that date.

You state you have been fighting the VA for 18 years. Have you filed any increases or NODs since then or just now?

Your case looks similar to mine. I am currently 20% ortho, 10% neuro for my back and leg pain. I had L3-4 and L4-5 laminectomy and discectomy in 2000. They had exams where they showed I could bend to 60, 80, and 85 degrees. The RO and BVA based my case on this and said it means I have no more than mild back and legs issues. They base it all on that and not the full disability picture.

Did your back get worse after surgery?

I just got my motion granted for reconsideration at the BVA because I have so much evidence they didn't look at it's not funny. What type of medical evidence do you have for your back? Did you keep your records from the military hospital and surgeon? Did you see anyone after you got out? That's where the meat and potatoes may be. One thing they didn't do on my exams and looks like your too is they didn't ask me to bend a few times. I actually found cases where the examiner asked the patient to do the forward bending multiple times and each time it got worse. The repetitive motion can severely limit a back like yours. I'm not an expert on Duluca but I'm sure an elder an chime in.

[dav_marine72]

As far as the eight additional discs go they base it on this:

Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

The way I read this and chime in if I am wrong anyone is that if all the discs you are complaining about are in the thoracolumbar area it's one rating. If you have more discs damaged in this area of the back I would think they would need to consider it for the overall rating and not just L4-5 I think you said. But overall you'll just get the one rating unless it goes up into the cervical spine.

Have you gotten MRIs in this 18 year period?

[jbasser]

Brax, I am sorry but your Poa is full of it. He is steering you on a course that will most likely sink.

Since you have had other disk issues, your back has to be as stiff as a broom handle. Is every Lumbar vertabrate fused? That would rate under ankylosis. As far as the schedule of ratings, It was based on limited range of motion back then. Now it is based on the same criteria but it changed a little in 2004.

Since it has gotton so severe you should ask for an increase and show them the range of motion you currently have. ALso has any Doc put you off work because of your back, Has he told you to stay off of your feet.

If the answer is yes, You should qualify for the max rating at 60 percent.

Beware of some of the Veterans Service officers. They are hell bent on rasing hell and less bent on applying the correct regs.

I dont see a CUE. It was based ont he ratings in effect in 1991. Your ROM was too high. Even though the Disk is gone, It dont matter since it was surgically removed. I am service connected for missing disk also under traumatic arthritis.

Now dont forget the secondary conditions as Radiculpathy, Sciatic foot drop, Muscle spasms, Numbness, Tingling and Ect.

Go for the increase.

You file cue claims directly with the agancy that you think made the CUE. This case is the BVA. Of course they will deny it and you most likely will have to go to the CAVC.

J

[jbasser]

DAV marine,I believe the Thoracic spine and Lumbar spine are considered the same spinal segment. The only recourse is ROM and radiculpathy. Radiculpathy is rated separate.

The max for the ROM is 60 and thatis now based on Bed rest or incapicitating episodes.

j.

As far as the eight additional discs go they base it on this:

Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

The way I read this and chime in if I am wrong anyone is that if all the discs you are complaining about are in the thoracolumbar area it's one rating. If you have more discs damaged in this area of the back I would think they would need to consider it for the overall rating and not just L4-5 I think you said. But overall you'll just get the one rating unless it goes up into the cervical spine.

Have you gotten MRIs in this 18 year period?