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.

[Berta]

DAV marine- was the back brace and cane prescribed?

Did the oxycodene prescription come after this decision?

Did you claim pain and anxiety in the claim this decision was based on?

[dav_marine72]

Hi Everyone,

Thanks for your responses. Sorry I went back and looked my notes from the lawyer. She stated they didn't do a proper Deluca work up. Then again she doesn't have my C file yet.

The references to the private evidence were note dated 1998. I did provide them with everything because I went after the back in 2000. That is the date I am serviced from. Note my back was the worst in late 1999. I had a two level discectomy and laminectomy in Jan. 2000. Once that surgery failed I went after them. I was happy to get SC because I got out in 95 and the first reference to a true back issue was 1997. I had two mentions of going to sick bay while in for back spasms. What I noticed the BVA did was exactly what the RO did. They pointed out the evidence that supported them like the 1998 not but nothing that helped me. I had a tone of evidence from 1998-2000 stating I had bilateral back and leg pain shooting below the knee. I actually have 3 levels of DD. The of the eight surgeons I saw only one wanted to operate. One made me have a disco-gram, which showed L3-4, totally desiccated and collapsed. All the surgeon basically concluded I had 3 level DD and I would only get worse down the road and surgery would not help me. A surgeon from Yale finally thought surgery would help and I went that route. Well the first few months it was hard to tell. I was laying in bed on narcotics all day. I did physical therapy and then went back to work. The surgeon noted good recovery. A month after being back at work everything came back to a more intense degree. That’s when I went back to the surgeon. He had me do another MRI and said except for some scar tissue he did all he could do. This was why I was denied a higher rating then 20% out the gate. The rater stated the surgeon said I had good recovery. This same rater had the evidence where the surgeon says apparently the patient has not had any success from surgery and is actually worse now. I of of course appealed.

So moving forward from 2002-2006 I saw everyone you could imagine, chiro, acupuncture, holistic healers, yoga everything. Nothing helped and every scrap of evidence is in the VA hands. I would miss 6-8 weeks a year of work because I would have lock ups that put me in bed for a week or more. Not to mention I couldn't run, lift, hike, or do anything I used to do. During this time I think I have 7 or so documented VA visits with locked back, a spasm, patient is angry, etc. I had been on amitripyline and other non-narcotic drugs for the pain. I had at least eight positive straight leg exams in this time but all the VA folks so no neurological deficit. I had a few bending test where I was 40 degrees or less. Taking into affect flair ups that to me would bounce me to 40% alone based on the 30 degrees rule. Just so happened because of the Yoga my bending was better at the C&P exams.

Keep in mind I spent other visits going to the ER for asthma during this time. I also went to mental health visits and podiatry for my service connected feet that always hurt.

In 2003 I finally broke and started having multiple panic attacks per day. I got put on zoloft, ativan, and buspar type meds. I am a strong man but I couldn't take the pain anymore. I had my psychiatrist and psychotherapist write letters stating my back and leg pain was causing me to have depression, anxiety, and panic attacks. I was service connected for adjustment disorder for 30%. With a little not stating it was temp because I would get better! I have an exam in two weeks for this one. Been on appeal since day 1. So the VA has known all along what my back did to my mental status. Dr. Bash wrote me a letter in 2004 to support my claim. I will post it here. He also wrote a rebuttal in 2007.

In 2006 the mental meds weren't enough. I broke down and asked the VA for painkillers. They told me drive to West Haven if you want these meds. We don't like to give them here. I couldn't even drive to Newington because I couldn't sit. West Haven was an hour away. My wife finally told me I have to see a civilian doctor. This is when I was put on narcotics and given a referral to a pain center. Since that time my painkillers went from vics to percs, to oxys. The board knew all this because I faxed them all the notes from the pain center. Including four or more nerve blocks.

The pain center doctor has diagnosed me with scar tisse and nerve entrapment at the two levels I had surgery on. My next move is to try a stimulator. The records from them have always shown the notes sharp shooting, electric pain down both legs, Lower back pain, pain constantly 9-10, can't sleep, no or little relief from nerve blocks.

I also have been seeing a chiropractor for the last year straight three times a week. I know they don't look upon their word as highly but he wrote me a letter stating I am impaired neurological and orthopedic issues at L4-5, L3-4, and L5-S1. He also did an extended work up past a VA examiner showing I could only bend to 40 degrees, positive straight leg, and positive for like three other exams for neurological symptoms. No mention of any of the record since 2006 by the VA except continued pain. Again the VA picking and choosing to screw us.

FYI the cane and back brace was not prescribed just a necessity. Although I think a couple of docs mentioned it. The VA did give me a tens unit.

Please see Dr. Bash’s attached letters.

Sorry couldn't find Bash's 2007 letter. I will post when I find. Thank you everyone. This drives me crazy.

[dav_marine72]

Sorry here are the files

posting_Bash_Letter.doc

posting_VA_Back_Increase.doc

[Berta]

I am baffled here-I have read the BVA decision 3 times but see no mention of the IMO from Dr. Bash at all-

maybe it is just me- will read it all again-

Dr. Bash clearly supported a finding of TDIU.

Question- I found your CAVC docket sheet- did you ask them to waive the 50 bucks filing fee?

Do you have any word (or copy of) the appellee (VA)'s response to the Court's order dated 8/5/08

The docket sheet indicates the CAVC received a response on Sept 3rd.This appears to by the reason the Motion to extend time was in abeyance.

I am a little confused as to your request to re-open-dated Sept 14, 2008.

Also I dont see the issue of any secondary psycological disabilities as secondary-in the BVA case-

I will read the BVA case again- but I just dont see how they accounted for Dr. Bash's medical opinions -both of them-

did they use his IMOs for any past decision you got?

It is enough to drive anyone nuts.

[Berta]

I hope your lawyer has carefully read your VCAA letter and the copy of the election response form (which I HOPE they sent to you)

ANY error in a VCAA letter is prejudicial unless the error is harmless.

If the VA fails to send a Response election form (whereby you can check box one or box two) as well as a deficient VCAA letter-

it seems that they will continue to ignore any medical evidence you send them-

and they can say you failed to respond to what they failed to send to you-(the actual response form)

I know I am singing the same song here I have been griping abput now for years- maybe this will help a newby reading this-

Not only did I receive illegal VCAA letter and NO response election form-

the medical evidence I had (3 IMos -2 from Dr. Bash)and additional clinical evidence and a past FTCA/Sec 1151 award that has probative bearing on my present claim -have YET to be addressed by the VARO-after 4 years have passed and only in AUg 2007-after countless complaints to my POA did one of their reps actually look at their copy of my VCAA letter and agreed with me it was totally deficient in every way.

I hope this was not the situation in your case-

[Berta]

Actually I meant that over 5 1/2 years have passed as I sent medical evidence with the original claim-Feb 2003.

The BVA is dealing with a Motion from my POA who wants to dump me but I heard they also got all of the files from the VARO again-so maybe they will deal with the remanded AO claim as well as the POA matter at the same time.

I am convinced that the VA can give us PTSD if we dont have it already.

Your lawyer sounds on the ball on all this.