Back Case At The U.s. Appeals Court

[dav_marine72]

Hi Everyone,

I wanted to know if anyone has had a good experience at the U.S. Appeals court. I am not feeling good so far. The case has been there since April of this year and my lawyer has not gotten my C file yet. The VA attorney keeps telling her it's in the works. My attorney said after she gets the C file she has 45 days to find any mistakes that were made. She then sits with the VA lawyer. If they can't reach a deal I'll have to wait 18 more months for a decision. Seems insane. Anyone had luck with a deal?

My case doesn't seem crazy does it? Rated 20% for degenerative disc decease and 10% for the nerve pain in my legs from it. Although I have bent to meet only a 20% rating at times (which is why they are denying me) my condition is much worse. Three levels of DD, failed surgery in 2000 with scar tissue at two levels, oxycodene 4 times a day, nerve blocks every other month, pain doctor is recommending a spinal stimulator, I take ativan and buspar 3 times a day for the anxiety and panic attacks from the severe pain, 8 jobs in 4 years (fired from a couple and left the others because they were complaining about my performance or days off because of back), pain is always a 9 or 10, miss 6-8 weeks of work a year, can't do anything at home, can't lift anything, back brace all the time, sometimes a cane, can't sit, stand or walk very long. Seems to me I rate more than 20% but who knows with the VA. Thanks.

[john999]

DAV

If you get any more surgeries or anything invasive get it done by the best. Do you have private insurance? If you do then search for the best doctor in your area to do the implant of the stimulator or any other surgeries. You don't want anyone to mess this up any more than it already is scared up. There is a illness called "failed back surgery syndrome". It goes with chronic pain, depression and lack of mobility and all the other things you have described. I am so sick of doctors telling me that my back does not look so bad so I should not have so much pain. Pain is subjective. No one else can feel it for you.

[dav_marine72]

Hi Everyone,

I did not ask them to waive the $50 filing fee. I’ll have to look for that response form. What did they want a response to?

I don’t have any copies of responses to the appellate court because my lawyer has been handling it all. Her explanation of what is going on is she is waiting for my C file. She says she has never seen it take this long. She has never worked with the attorney for the VA and the woman wasn’t returning her phone calls. She finally talked to her and she said my folder had been sent back to Newington, CT RO for the copy to be made. My attorney is doubtful because she did not receive the normal admin letter stating the RO has so many days to comply. I told her it figures in my case. The VA seems to like screwing with me.

Sorry for the Sept 14, 2008 confusion. I imported these word docs from a PC laptop to my MAC and they lost the created dates. The first Bash letter obviously was from 2004 because that date stayed. The second letter that says posting_mriordan was the letter I included to Dr. Bash for his second letter. The actual date he wrote the second letter was Oct 2007 while my case was at the board. The last letter posting_VA Back increase was actually sent to the local RO in March 2008 after the BVA decision. Someone told me to send that in case I lose at the appellate court to get an earlier effective date. Not sure how true that is.

The secondary mental issue never made it to the BVA yet. While they were denying my increases I was fighting just for SC for the mental. They service connected me in 2005 back to July 16th 2002 for adjustment disorder. They rated me 30%. I appealed that and actually have one more exam in two weeks before it’s sent to the BVA. You can tell I have tons of faith in the rater LOL. Here is what they wrote for the 30% basis:

Report of VAMC examination on Feb. 2005 indicates that you reported experiencing feelings of anxiety associated with your back pain, which you categorize as panic attacks, as well as some minor depressive symptoms, including depressed and discouraged mood, irritability and some decreased interest and motivation for your activities. You denied any compulsive behavior. Your chronic pain keeps wakes you during the middle of the night, but you denied difficulty falling asleep or other non-pain related sleep disturbances. You take Zoloft, Neurotin, and elavin daily. One the mental status examination your effect was somewhat tense, but generally euthymic with range and mood congruent. You described your mood as “not motivated” and it appeared somewhat dysphoric or discouraged. Thought process was logical with no evidence of thought disorder. You denied suicidal or homicidal ideation. Cognition was grossly intact and insight and judgment was good. Diagnoses were impulse disorder, not otherwise specified, by history, and adjustment disorder, mixed. Global assessment of functioning was 65. The 30% evaluation is found based on medical evidence which documents anxiety, depressed mood, panic attacks, and sleep impairment do to pain.

The BVA did not mention Bash at all, which blew me away too. Here was how he was addressed by the DRO at the RO:

Report from Dr. Bash indicated he reviewed your medical records for the purpose of rendering a medical opinion considering your spine and testicular diagnostic codes. He states that in his opinion, your spine diagnostic code of 5295 should be DC 5293 in incorporate your persistent pain, surgical consequences, sciatic nerve problems, and lumbar muscle spasms, because you have imaging documenting severe multi-level lumbar spine degenerative arthritis / herniations which are out of proportion to the natural aging process.

Your hearing testimony and Dr. Bash’s opinion have been carefully reviewed and considered in conjunction with all other evidence of record. However the objective medical evidence does not provide a basis upon which to grant an increased evaluation. Lumbar range of motion documented on your latest VA orthopedic examination (flexion 80 degrees and combined range of motion 310 degrees in Sept 2004), does not support more than a 10% evaluation under current criteria. In addition, recent medical evidence, including examination in Feb 2005, does not document any neurological deficits, which could be separately evaluated. (overturned by BVA with a 10% back to 2002)

Your existing 20% evaluation is continued The evaluation was initially assigned under the prior criteria based on muscle spasm documented at your VA examination in October 2000. While subsequent examinations have not documented chronic muscle spasm, the existing evaluation is confirmed based on the limitation of motion shown on your most recent VA examination combined with consideration of your increased functional limitations during intermittent flare ups which involve increased back pain, radiating leg pain, and problems with endurance such as difficulty sitting or standing for very long do to the pain.

Such nice people huh? They really should have knocked me down to 10%. Funny how I’m rated more for my mental condition caused by my back LOL. The problem was I was doing yoga from 2004-2006. This made me more flexible and hence screwed me. Thanks again!

[dav_marine72]

Thanks John. I appreciate the understanding. Makes life hard with a wife and small children. Sometimes I feel like no one can understand me. It's nice to hear someone else who knows what I am going through. Thanks for the advice.

[Berta]

DAV MArine wrote that the RO said:

"Your hearing testimony and Dr. Bash’s opinion have been carefully reviewed and considered in conjunction with all other evidence of record. However the objective medical evidence does not provide a basis upon which to grant an increased evaluation"

They are obviously using only one of his IMOs-and the one I read clearly warranted a higher rating.

I am sure your lawyer will attack this and the way the I

[Berta]

DAV MArine wrote that the RO said:

"Your hearing testimony and Dr. Bash’s opinion have been carefully reviewed and considered in conjunction with all other evidence of record. However the objective medical evidence does not provide a basis upon which to grant an increased evaluation"

They are obviously using only one of his IMOs-and the one I read clearly warranted a higher rating.

I am sure your lawyer will attack this and the way the IMOs were deficiently assessed by VA.

The De Luca factor is important-as the lawyer knows-

They might well have made errors in the first VCAA letter you received that prejudiced your claim.(or failed to send the election form)But after all this time any deficiency must have been caught already so I guess that isnt the problem.

I dont know if they did or not-this is something that your lawyer would certainly consider- the VAA Notice would be the first thing I would want to see if I was an attorney representing veterans.

The BVA itself should have reviewed the Bash IMos.I sent my IMos directly to the BVA when I requested a remand- good thing- a few months later, per the VARO ,after the remand- they were gone from the C file ---AGAIN-

what better way to deny a claim then to ignore ,to 'lose',or to deficiently opine on an IMO or any other medical evidence.

Ricky made a good point- one for all to consider- the CAVC looks for legal error -it isnt the time to think they will consider new medical evidence-

they used the established clinical record-

meaning if the RO fails to send to the BVA the entire record-then the CAVC can only decide on what they have.

I told the GC atorney a few weeks ago regarding the way my initial IMO was handled-and the astonishing statement that my POA made after a DRO conference.And that I believed he Sh--canned my IMO as soon as he left the DRO conference.

It disappeared from the C file (about 10 times by now)

but I got Deputy Sec Mansfield's office to submit both of them.

They had no choice -when you gripe to a VA higher up in DC and send them attachments- they send the whole thing to your RO.

Many of my submissions to my POA appear- due to documentation I have from the POA_themselves, to have been destroyed.

I only hope that-in your case- the BVA did have the Bash IMos but from what I saw in the BVA decision you posted -they didnt.

Even if the VA rejects an IMO- sometimes the BVA will point out positive statements in it that raise to BOD -

Benefit of Doubt level for an award-

It is highly unusual for the BVA to fail to mention ANY probative evidence that the veteran has submitted.I am assuming of course that the BVA has Never used these opinions yet.

I saw a BVA case where the vet had submitted FOUR IMOS to the RO and None of them were even mentioned in the RO decision.

The BVA awarded the claim.

Edited September 15, 2008 by Berta

[dav_marine72]

Hi Berta,

I don't mean to be a thread jumper but I posted a question in the Appealing Your Claims NOD DRO BVA USCAVC forum and was asked for some more information. If you have a chance to look I have posted Dr. Bash's second letter and more evidence there. Thank you for your help and support!