Decision On Claim Arrived Yesterday

[Phred 0]

I have about a hundred questions as I'm reading through this paper work but I'd like to start with what does this mean: "The VA examiner stated that he could not assess the degree of leg pain related to your service connected injuries without meter speculation."

[vaf 4]

This won't help, but I wonder if this was a transcription error, maybe the correct word was "mere," not "meter."

[Ron II 0]

This won't help, but I wonder if this was a transcription error, maybe the correct word was "mere," not "meter."

Agree, there is only one reference to "meter speculation" on Google and it pertains to poetry.

Ron

[Phred 0]

That makes so much more sense, thank you. I believe you are right, “mere speculation.”

I’ll try to give a quick background. My wife asked for a reevaluation of:

• Left ankle, shin and knee stress injury residuals
  
• Right ankle, shin and knee stress injury residuals
  

Each had been previously assigned a 10 percent rating, so she was getting 20 percent for her legs and 10 percent for a wrist but she didn’t include the wrist in this request for re-evaluation.

She got no increase. I blame our approach. I do so for a number of reasons. I’m not ready to give up and neither is she. I am going to help her with her appeal but I don’t want to screw it up again.

I think we screwed up from the beginning by giving the VA an easy way to claim that her current condition is not service-connected. What I mean is… she got out in 1999, had been getting 30 percent, fell and hurt her legs in 2007, when she filled out the Statement in Support of Claim she stated that she fell and hurt her legs but that the injuries were made more extensive due to the pre-existing service-connected condition or something to that effect. At least that’s what I think she stated. (Note to Self: I need to get a copy of the Statement of Claim) I’m not sure if the Statement tried to claim that the fall was caused by the pre-existing service connected condition. I don’t know if that’s a direction we should have taken it or not. The bottom line is that they denied her by saying that “No link of the accident (meaning the fall) or residuals to the stress fractures in service was provided.” Previously in that paragraph they state that, “The private medical records show your accident when you fell on ice, while moderately impaired, in May of 2007, resulting in surgery.” They did get medical records directly from the hospital and surgeon, we didn’t see a copy. (Note to self: That was a big mistake.) I need to get a copy of those records as we work on the appeal because I want to see how they determined that she was moderately impaired, I don’t remember a breathalyzer test having been administered, maybe they performed some blood test, either way I want to see what reference there is to this moderately impaired business. I’m also wondering why they would bother to put that in their findings. Is that statement an attempt to disprove her service connected pre existing condition had nothing to do with the fall or severity of the injuries? Also, look at the date, May, we don’t live at the North Pole, what ice are they talking about? Nobody ever said anything about falling on ice, there was no ice. That’s another reason I need to see these records, I want to see if the VA is just blatantly making shit up or if someone at the hospital got their facts wrong.

I'm thinking we shouldn't have mentioned the fall at all and just asked for a reevaluation based on the state of her legs currently.

Anyway, I appreciate any comments or suggestions; I’ll type up plenty more after I cool off a bit. Certain aspects of this has really got my blood a boilin'.

[stillhere 35]

That makes so much more sense, thank you. I believe you are right, “mere speculation.”

I’ll try to give a quick background. My wife asked for a reevaluation of:

• Left ankle, shin and knee stress injury residuals
  
• Right ankle, shin and knee stress injury residuals
  

Each had been previously assigned a 10 percent rating, so she was getting 20 percent for her legs and 10 percent for a wrist but she didn’t include the wrist in this request for re-evaluation.

She got no increase. I blame our approach. I do so for a number of reasons. I’m not ready to give up and neither is she. I am going to help her with her appeal but I don’t want to screw it up again.

I think we screwed up from the beginning by giving the VA an easy way to claim that her current condition is not service-connected. What I mean is… she got out in 1999, had been getting 30 percent, fell and hurt her legs in 2007, when she filled out the Statement in Support of Claim she stated that she fell and hurt her legs but that the injuries were made more extensive due to the pre-existing service-connected condition or something to that effect. At least that’s what I think she stated. (Note to Self: I need to get a copy of the Statement of Claim) I’m not sure if the Statement tried to claim that the fall was caused by the pre-existing service connected condition. I don’t know if that’s a direction we should have taken it or not. The bottom line is that they denied her by saying that “No link of the accident (meaning the fall) or residuals to the stress fractures in service was provided.” Previously in that paragraph they state that, “The private medical records show your accident when you fell on ice, while moderately impaired, in May of 2007, resulting in surgery.” They did get medical records directly from the hospital and surgeon, we didn’t see a copy. (Note to self: That was a big mistake.) I need to get a copy of those records as we work on the appeal because I want to see how they determined that she was moderately impaired, I don’t remember a breathalyzer test having been administered, maybe they performed some blood test, either way I want to see what reference there is to this moderately impaired business. I’m also wondering why they would bother to put that in their findings. Is that statement an attempt to disprove her service connected pre existing condition had nothing to do with the fall or severity of the injuries? Also, look at the date, May, we don’t live at the North Pole, what ice are they talking about? Nobody ever said anything about falling on ice, there was no ice. That’s another reason I need to see these records, I want to see if the VA is just blatantly making shit up or if someone at the hospital got their facts wrong.

I'm thinking we shouldn't have mentioned the fall at all and just asked for a reevaluation based on the state of her legs currently.

Anyway, I appreciate any comments or suggestions; I’ll type up plenty more after I cool off a bit. Certain aspects of this has really got my blood a boilin'.

I also would also question their term "whie moderately impaired" what are they talking about. Where did that come from? There is where I think you will find the reason for the denial.

[Phred 0]

Also…

I need to figure out what exactly she was originally rated 10 percent for for each leg because I’ve seen her condition referred to on various VA documents as Left ankle, shin and knee injury residuals, I’ve seen it referred to as lower leg stress injuries and I’ve seen it referred to as stress fractures. If she had for example, Left ankle, shin and knee injury residuals then couldn’t it be argued that that should be getting 10 percent for the left ankle, 10 percent for the left shin and 10 percent for the left knee totaling 30 percent, not 10 percent. How does one go about getting the official document that states exactly medically what the VA is paying her for?

[Phred 0]

So if by "The VA examiner stated that he could not assess the degree of leg pain related to your service connected injuries without meter speculation," they meant that the doctor’s position was that he can’t determine the degree of leg pain and any attempt to try would be mere speculation on his part. I’m looking at the schedule of ratings and notice that the following is mentioned, “Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion." So how does one go about providing objectively confirmed evidence of painful motion if the doctor’s position is that any attempt to do so is mere speculation!

[purple 3]

first, be sure you adhere to the appeal timelines if indeed you plan on appealing this decision. it's very important to not let any of those deadlines pass!

then gather copies of all medical records yourself (active duty, civilian & VA) , and review them...ideally this would have been done with the initial submission. send the important info only to the VARO....if you can't prove the link between the current injury and the previous injury then there might be a problem. there's where you have your work cut out for you.

definitely find out what the rater meant by "impaired" & where the "ice" reference came from. impaired could mean from the previous injury and in this case, that's a good thing.

it's a lot of work to submit an airtight claim....but it can be done!

good luck!!

[danang_1969 0]

I also would also question their term "whie moderately impaired" what are they talking about. Where did that come from? There is where I think you will find the reason for the denial.

I think they do stuff like writing about thing in a decision, like the ice in May, to occupy and confuse the claim, so the vet will have to spend more time correcting their errors that are totally false, then he will have less time to just deal with the relevant things and prove the claim. The more the VA can complicate and the thicker they can make your file the longer it takes and the harder it is for the vet to put the truth together on paper.

[john999 976]

You need to get your own private doctor to review your wife's medical records and to examine her to rebut what the VA has decided. The way to fight a VA medical opinion is to get your own opinion from a board certified specialist. When you appeal you include this new medical opinion. If you are claiming that the original disability caused your wife to fall and make her condition worse that needs to be backed up by a doctor's opinion. The VA will never just accept such a claim without a medical opinion that would explain how the original injury led to the aggravation.

What proof do they have that she was "impaired"? Are they saying the accident was due to her being drunk or high on drugs? You know that anything said to any VA doctor or examiner will be used against you. If you say you had one beer they interpret that as your being falling down drunk.

[MRRRR5 17]

Phred,

Welcome to HADIT and thank you and your spouse for your service to the nation.

First, I would say that you have been given some great advice thus far.

Second, it appears to me that you (or your wife) did not keep copies of the complete claim for increase, or the initial claim submitted to the VARO. B)

Just remember to keep everything you send to the VA; all documents, and send it certified mail or with some form of tracking to know that they received it.

Good luck to you.

[Berta 4,215]

With her SC disability already established- it is higher likely that the SC caused her to lose her balance and fall- and therefore residuals of the fall should be claimed if compensable and she certainly should ask for higher rating.

The VA will make ambiguous statements to throw us off-

"impaired" could mean many things here- she already has an impairment-the SC disability.

The actual med recs and C file will tell you exactly what you need to rebutt-

I mentioned this before- but it might help-

the VARO for 3 years knocked my Section 1151 claim down many times. I had no IMO and never even thought I would need one (wrongful death claim)

The 3rd VA med opinion doctor stated -out of the blue- that the veteran possibly died due to a fatal overdose of cocaine.and not due to the malpractice I had charged.

Say what? I was livid that they would stoop that low-

Well the autopsy the RO contionually 'lost' had a full toxicology report attached as my husband was an organ donor.

I hit them with every bit of evidence I had on their cocaine statement.

I included the proven fact that my husband could not see money denominations or tell if he had a nickel or a quarter in his pocket due to residuals from his 1151 stroke.He never had more then 2-3 bucks on him,and I think drugs cost more than that.

Also he was in VA Day Treatment- whereby the van picked him up in the AM and he spent 3-4 days at the VAMC itself.

He wasnt even aroud drugs unless the VA itself had cocaine on their premises-

( this story gets longer -my point is they dropped that idea right away- and I did succeed on my claim)-

years later I spoke to the Cocaine statement doctor and he immediately sent me his actual report-

he had raised this issue but the VA had parsed his report entirely and never told this VA doc that a complete toxicology had been done for the Organ Donation people.

I checked every single venue of rebuttal at the time I got this SSOC and also called the VA director's office- and asked them if in fact the VAMC did have any cocaine on their premises-to my astonishment the director's secretary told me the Bath VA DID have cocaine-

liquid cocaine in a vault from the days when they did oral surgery-years and years ago-

My COngressman-getting this info from me-(I couldnt wait to call him on this one) called them right away as he was astonished at the fact they did have any cocaine there and would even suggest that any type of drug like this caused my husband's death.

I dont know if liquid cocaine is the same as the street drug and I do know it used to be used to stop bleeding during oral surgery but this VA didnt do oral surgery since the Civil War as far as I know .My COngressman asked them why it was there-dont know why-and I have no idea what happened to the local VA's stash.

I wonder what else is in that safe.

The VA will do, in some cases and not all, anything they can to get out of awarding SC comp.

Every negative statement they make has to be clearly rebutted with both common sense and with medical evidence.

If the VA said "Ice" was cause of fall (and not secondary to her SC problems) you could get a weather report from NOA for same date and locale and easily knock that idea down.

By the way-is she working? and does this SC prevent her from working? If so she should apply for TDIU.

Edited July 24, 2008 by Berta

[LarryJ 5]

I think they do stuff like writing about thing in a decision, like the ice in May, to occupy and confuse the claim, so the vet will have to spend more time correcting their errors that are totally false, then he will have less time to just deal with the relevant things and prove the claim. The more the VA can complicate and the thicker they can make your file the longer it takes and the harder it is for the vet to put the truth together on paper.

Or, they do this to you:

"the veteran (that'd be me, in this case) is most likely genetically pre-disposed to arthritis............"

WHAT?

Where the heck did that come from?

GENETICS?

The only thing that C&P examiner knew about me, genetically, is that I'm a JewBoy. Are Jew's genetically inclined to have arthritis?

So, I began the "battle of words" with the C&P and the RO!

Just killin time and hangin on. Hey, that ought to make a good title for a C&W song!

[Guest Vietnam Tanker]

Larry, sounds like the begining of a good movie script. LOL

[Ron II 0]

Re: "GENETICS?

The only thing that C&P examiner knew about me, genetically, is that I'm a JewBoy. Are Jew's genetically inclined to have arthritis?

So, I began the "battle of words" with the C&P and the RO!

Just killin time and hangin on. Hey, that ought to make a good title for a C&W song!"-LarryJ-

And...that song would HAVE to be sung by Kinky Friedman, an independent Texan!

Ron

[LarryJ 5]

Re: "GENETICS?

The only thing that C&P examiner knew about me, genetically, is that I'm a JewBoy. Are Jew's genetically inclined to have arthritis?

So, I began the "battle of words" with the C&P and the RO!

Just killin time and hangin on. Hey, that ought to make a good title for a C&W song!"-LarryJ-

And...that song would HAVE to be sung by Kinky Friedman, an independent Texan!

Ron

Believe it or not, I've known Mr. Friedman since his "Kinky Friedman and The Texas Jewboys" show hit the road. Good Guy.

[vaf 4]

I actually saw Kinky and the guys perform in New York City in the 70's. The club was near Washington Square Park near NYU, and had a giant statue of an iguana on the roof. The Lone Star Cafe, if anyone remembers it. I enjoy seeing his appearances on Fox News Network now and then... he is down to earth and makes a lot of sense to me, but I never thought back then I'd be watching his political commentary on Fox News Network today.

Regarding "genetic predisposal" -- if it isn't noted on the entrance physical, it didn't exist prior to service. Period.

[fanaticbooks 4]

Just a thought.....Have you requested a copy of all your VA records including the Evaluation exams and military documents? If you havent, send a letter requesting it under the FOIA (Freedom of Information Act), putting FOIA on the envelope as well as in the letter. You should then receive copies of all the VA has in your file. Take a look at my website that I just put on this site. It might offer you some additional help (not sure). It's free so you won't lose anything by looking.

Good Luck,

fanaticbooks

www.howtoassemblevaclaims.com

[Phred 0]

Thanks everyone for your comments and advice.