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Back Case At The U.s. Appeals Court

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dav_marine72

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  • HadIt.com Elder

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.

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dav_marine72

If your claim was opened in 2001, then you should read the bold print in the case below.

You should be rated with the old and new criteria and be given the one with the highest rating, more than likely the old one. My case is similar to yours, I filed in Nov 2001.

If I were you, I would see a mental health practitioner for depression, a neurologist, for the leg pain. Do you have any bladder/bowel problems or sexual dysfunction. These are all possible secondary issues related to your back disability.

On appeal from the

Department of Veterans Affairs Regional Office in Columbia,

South Carolina

THE ISSUES

1. Entitlement to a an increased disability rating for

failed back syndrome with a history of fusion of L2 to L5,

currently evaluated as 60 percent disabling.

2. Entitlement to a total disability rating due to

individual unemployability resulting from service-connected

disabilities (TDIU).

REPRESENTATION

Appellant represented by: The American Legion

WITNESSES AT HEARING ON APPEAL

Appellant and his spouse

ATTORNEY FOR THE BOARD

D. L. Wight, Counsel

INTRODUCTION

The veteran served on active duty from March 1953 to February

1957.

This case initially came to the Board of Veterans' Appeals

(Board) on appeal from an April 1996 rating decision rendered

by the Columbia, South Carolina, Regional Office (RO) of the

Department of Veterans Affairs (VA). In this decision the RO

denied the veteran's claim for a rating in excess of 10

percent for his back disability.

The veteran testified at a hearing before a hearing officer

at the RO in August 1997 and before the undersigned Veterans

Law Judge in Washington, D.C., in July 1998. Transcripts of

both hearings are of record.

In September 1998, the Board remanded the case to the RO for

further development. In a rating decision dated in March

1999, the RO granted the veteran a 100 percent convalescent

rating based on surgical or other treatment necessitating

convalescence for the service-connected lower back condition

from November 3, 1995, to June 1, 1996, when a schedular

evaluation of 60 percent was assigned; another 100 percent

convalescent rating was assigned for the period from August

26, 1998, to March 1, 1999, when the schedular 60 percent

rating was restored.

The RO returned the case to the Board in February 2003.

REMAND

There has been a change in the pertinent rating criteria

during the course of this appeal. The criteria for

evaluation of intervertebral disc syndrome under Diagnostic

Code 5293 were amended effective September 23, 2002. See 67

Fed. Reg. 54345-54349 (August 22, 2002). Those rating

criteria are substantially different from the previous

criteria. Under the revised version of Diagnostic Code 5293,

intervertebral disc syndrome (preoperatively or

postoperatively) is to evaluated either on the total duration

of incapacitating episodes over the past 12 months or by

combining under Sec. 4.25 separate evaluations of its chronic

orthopedic and neurologic manifestations along with

evaluations for all other disabilities, whichever method

results in the higher evaluation. A 60 percent evaluation is

warranted with incapacitating episodes having a total

duration of at least six weeks during the past 12 months. An

incapacitating episode is a period of acute signs and

symptoms due to intervertebral disc syndrome that requires

bed rest prescribed by a physician and treatment by a

physician. "Chronic orthopedic and neurologic

manifestations" means orthopedic and neurologic signs and

symptoms resulting from intervertebral disc syndrome that are

present constantly, or nearly so. When evaluating on the

basis of chronic manifestations, orthopedic disabilities are

to be rated using evaluations criteria for the most

appropriate orthopedic diagnostic code or codes. Neurologic

disabilities are to be evaluated separately using evaluation

criteria for the most appropriate neurologic diagnostic code

or codes. If intervertebral disc syndrome is present in more

than one spinal segment, provided that the effects in each

spinal segment are clearly distinct, each segment is to be

evaluated on the basis of chronic orthopedic and neurologic

manifestations or incapacitating episodes, whichever method

results in a higher evaluation for that segment.

The Court has held that for the purpose of appeals, where the

law or regulation changes after a claim has been filed or

reopened but before the administrative or judicial appeal

process has been concluded, the version most favorable to the

appellant should be applied unless provided otherwise by

statute. Karnas v. Derwinski, 1 Vet. App. 308, 312-313

(1991). When a provision of the Rating Schedule is amended

while a claim for an increased rating under that provision is

pending, VA should first determine whether the amended

regulation is more favorable to the claimant; however, the

post amendment criteria may not be applied prior to the

effective date of the change. VAOPGCPREC 3-00 (April 10,

2000). Thus, the new version of Diagnostic Code 5293 is

applicable only from September 23, 2002.

While the RO addressed the amended criteria in the December

2002 supplemental statement of the case issued in this

appeal, the Board is of the opinion that further evidentiary

development is required in light of the change in the rating

criteria. Specifically, a new neurological examination in

necessary to determine the nature and extent of the veteran's

neurologic symptomatology related to his service-connected

low back disorder. In this regard, the Board notes that the

VA physician that examined the veteran in April 2002 stated

that his clinical examination revealed no evidence of any

lumbosacral radiculopathy. Despite that finding, subsequent

private medical records show radiculopathy and steroid

injections for pain.

A July 2002 treatment record from Dr. Nathan H. Brandon

indicates that the veteran had undergone EMG and nerve

conduction studies, performed by Dr. Williams on June 28,

2002. Dr. Brandon noted that the studies showed bilateral

chronic-appearing multilevel lumbosacral polyradiculopathy

involving the right L5 and S1 with no evidence of generalized

peripheral neuropathy. A September 2002 treatment record

from Dr. Brandon notes findings of lumbar radiculopathy.

These private treatment records note that the veteran was a

fall risk, walked with a straight cane, used a motorized

scooter and walker, and was prescribed a TENS unit. In

September 2002, Dr. Brandon stated that the veteran was to be

referred to Dr. Dennis Williams for EMG and nerve conduction

studies of both lower extremities to rule out diabetic

peripheral neuropathy versus radiculopathy. A copy of the

studies done in June 2002 are not associated the claims

folder. In light of the potential probative value of the

studies done in June 2002, as well as any subsequent EMG and

nerve conduction studies, they should be obtained.

In light of the foregoing, the Board is also of the opinion

that a new examination would be probative in ascertaining the

nature and severity of all present orthopedic and neurologic

manifestations of the veteran's service-connected back

disability.

Accordingly, this case is REMANDED for the following action:

1. The RO must review the claims file and

ensure that all notification and

development action required by the VCAA is

completed.

2. The RO should obtain copies of the

EMG and nerve conduction studies done in

June 2002, as well as any subsequent

studies, from Dr. Dennis Williams or the

facility that performed the studies.

3. Thereafter, the RO should schedule

the veteran for VA neurological and

orthopedic examinations by physicians

with appropriate expertise. The veteran

should be properly notified of the date,

time, and place of the examination in

writing. The claims file must be made

available to and be reviewed by the

examiners. The examiners should describe

the severity and extent of any present

neurological or orthopedic manifestations

of the veteran's service-connected failed

back syndrome. In addition, the

examiners should offer an opinion

concerning the impact of the veteran's

service-connected lumbar spine disability

on his ability to function.

4. The RO should then review the claims

files to ensure that all development has

been conducted and completed in full. If

any development is incomplete,

appropriate corrective action is to be

implemented.

5. Thereafter, the RO should

readjudicate the issues on appeal. In

evaluating the veteran's service-

connected failed back syndrome, the RO

should ensure that both the former and

revised diagnostic criteria are

considered (as noted before, the

effective date of the revised criteria is

September 23, 2002). If any benefit

sought on appeal is not granted to the

veteran's satisfaction, the RO should

issue a supplemental statement of the

case (SSOC) and afford the veteran and

his representative an appropriate

opportunity to respond.

Thereafter, the case should be returned to the Board, if in

order. The Board intimates no opinion as to the ultimate

outcome of this case. The appellant need take no action

unless otherwise notified.

The appellant has the right to submit additional evidence and

argument on the matter or matters the Board has remanded to

the regional office. Kutscherousky v. West, 12 Vet. App. 369

(1999).

This claim must be afforded expeditious treatment by the RO.

The law requires that all claims that are remanded by the

Board of Veterans' Appeals or by the United States Court of

Appeals for Veterans Claims for additional development or

other appropriate action must be handled in an expeditious

manner. See The Veterans' Benefits Improvements Act of 1994,

Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),

38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory

Notes). In addition, VBA's Adjudication Procedure Manual,

M21-1, Part IV, directs the ROs to provide expeditious

handling of all cases that have been remanded by the Board

and the Court. See M21-1, Part IV, paras. 8.44-8.45 and

38.02-38.03.

_________________________________________________

GARY L. GICK

Veterans Law Judge, Board of Veterans' Appeals

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  • HadIt.com Elder

Thanks hurryupandwait,

Both the RO and BVA did consider the earlier ratings for me. My service connection goes back to 2000. It didn't leave the RO until 2005. I should be rated under the old DC 5293 intervertebral disc syndrome. Dr. Bash wrote 2 IMO letters for me explaining why I should be backed with my evidence and how he disagreed with the RO rater.

All I have seen from the RO and BVA since 2000 for my 8+ service connections is evidence addressed in SOCs, etc. that help them rate a VET lower. I have never actually seen them balance the evidence and make a decision based on that. Probably because if they put all the pertinent evidence on the table they would look even more ridiculous denying us. It’s easier to lie and pretend it’s not there.

As far as mental goes I have 30% SC for adjustment disorder secondary to my back. This is on appeal still for the original rating. It’s kind of funny I rate more for my mental condition than my back. As far as a separate connection for the sexual dysfunction I can still get an erection but I can’t have sex because the pain is so bad. I don’t know if that rates or not. I figured it was only if you couldn’t get it up. Then again how do they know? Thanks.

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