New Back Problems Found, How Do I File? Help Please

[Sean]

Good morning from Spokane fellow Vets! First off, I would like to share my appreciation for this site and to all the posters who contribute the best information I've found yet. I just just happened here today, so I'm playing catch-up trying to read all the posts!

A little background on me, I served from Mar 96' to Aug 05, USAF. I filed my initial VA claim before I left the Service in June and got a rating of 30% in September. Since then I have gone to the local VA hospital here in Spokane which is excellent, and requested that my Lower back be looked into further. Now I'm not hip to the lingo to much, so I'll say it word for word from the papers, since most of you understand this type of talk. My only back rating was 10% SC for Osteoarthropathy of Lumbar Spine. The report says there was there was tenderness at L-5, loss of joint space at T4-5, and the begining of facet joint osteoarthropathy of the lower lumbar region. Now, when I get to the VA hospital I am still in constant pain of 4-5 daily with flair ups to 8-10 coming on strongly as the years progress. So my Doc orders a CT of my Lower back. It reveals a herniated disc in L5-S1 and Spina Bifida Occulta. So he then orders a MRI immediately, which I go have, and here is the results: Degenerative disk disease at T12 L1 with small left paracentral disk protusion. There is a frank disk herniation at L5-S1, likely old, in a right paracentral location that descends posterior to the S1 vertebral body segment as well.

Anyhow, I sent the VA records I have from the hospital which has the CT scan results and the MRI report I got from the Civillian hospital to my Seattle DAV office and he sent it back to me with a form 21-4138, Statement in support of claim form, to fill out. My question is, do I have enough evidence to file a new claim, or do I have to appeal my original 10% back rating? And who do I sent the information to? Directly to the VA in Salt Lake that gave me my original rating, or to the Seattle VSO or NSO whatever it is.

Any feedback would be greatly appreciated.

Thanks for all who served....and who still are

Sean

[Guest Berta]

Good morning from Spokane fellow Vets! First off, I would like to share my appreciation for this site and to all the posters who contribute the best information I've found yet. I just just happened here today, so I'm playing catch-up trying to read all the posts!

A little background on me, I served from Mar 96' to Aug 05, USAF. I filed my initial VA claim before I left the Service in June and got a rating of 30% in September. Since then I have gone to the local VA hospital here in Spokane which is excellent, and requested that my Lower back be looked into further. Now I'm not hip to the lingo to much, so I'll say it word for word from the papers, since most of you understand this type of talk. My only back rating was 10% SC for Osteoarthropathy of Lumbar Spine. The report says there was there was tenderness at L-5, loss of joint space at T4-5, and the begining of facet joint osteoarthropathy of the lower lumbar region. Now, when I get to the VA hospital I am still in constant pain of 4-5 daily with flair ups to 8-10 coming on strongly as the years progress. So my Doc orders a CT of my Lower back. It reveals a herniated disc in L5-S1 and Spina Bifida Occulta. So he then orders a MRI immediately, which I go have, and here is the results: Degenerative disk disease at T12 L1 with small left paracentral disk protusion. There is a frank disk herniation at L5-S1, likely old, in a right paracentral location that descends posterior to the S1 vertebral body segment as well.

Anyhow, I sent the VA records I have from the hospital which has the CT scan results and the MRI report I got from the Civillian hospital to my Seattle DAV office and he sent it back to me with a form 21-4138, Statement in support of claim form, to fill out. My question is, do I have enough evidence to file a new claim, or do I have to appeal my original 10% back rating? And who do I sent the information to? Directly to the VA in Salt Lake that gave me my original rating, or to the Seattle VSO or NSO whatever it is.

Any feedback would be greatly appreciated.

Thanks for all who served....and who still are

Sean

Sean- I would ask VA to (on the 21-4138) for a higher disability rating based on the enclosed medical records (then enclose copies of them) and send it certified or priority to the VARO-not your SO- he could get a copy of the 4138- but the med recs should go to the VA.

Question- did they give you retro back to the day after your discharge?

If you got 30% this past September you can file this 4138 as a Notice of Disagreement on that- actually I never use this form-

I type Notice Of Disagreement or

Notice of Claim

etc- on a regular letter-

The 4138 usually cannot be typed on unless the SO does it with their PC program.

I have seen some very difficult to read 4138s because the vet wrote them by hand.

Or-what I did with a few-I opened Word, Scanned the 4138-just the top of it, scanned it into Word and copied and pasted the Word typed statement of support of claim so it looked a little better.

Yet I feel you should file this as a letter stating Notice of Disagreement on the Sept decision because if this is from the 30% disability-which it seems to be- I could be wrong-

That way the NOD will preserve your effective date.

maybe the 4138 would too- just dont like to use them- someone else will add to this idea-too

[Sean]

Sean- I would ask VA to (on the 21-4138) for a higher disability rating based on the enclosed medical records (then enclose copies of them) and send it certified or priority to the VARO-not your SO- he could get a copy of the 4138- but the med recs should go to the VA.

Question- did they give you retro back to the day after your discharge?

If you got 30% this past September you can file this 4138 as a Notice of Disagreement on that- actually I never use this form-

I type Notice Of Disagreement or

Notice of Claim

etc- on a regular letter-

The 4138 usually cannot be typed on unless the SO does it with their PC program.

I have seen some very difficult to read 4138s because the vet wrote them by hand.

Or-what I did with a few-I opened Word, Scanned the 4138-just the top of it, scanned it into Word and copied and pasted the Word typed statement of support of claim so it looked a little better.

Yet I feel you should file this as a letter stating Notice of Disagreement on the Sept decision because if this is from the 30% disability-which it seems to be- I could be wrong-

That way the NOD will preserve your effective date.

maybe the 4138 would too- just dont like to use them- someone else will add to this idea-too

Berta, I received my first payment on in October for September, they said since I was Active Duty for 5 days in August, that I was not entitled to disability pay for that month, not even pro-rated. I had a letter typed up originally when I sent it to the DAV representitive, so I guess I'll just tweak it a little bit and send it with my documents back to the main Salt Lake office who rendered the original decision then. Is there any example of a good letter to go by as a guide that might increase my chances?

Thanks for your time.

Sean

[Guest Berta]

Sean- the VA might be right on the first month's check-

I believe there is a NOD format here at hadit somewhere-

I suggest clearly state NOTICE OF DISAGREEMENT at top of letter-under the addresses etc-

put your c file and any other Referral numbers that are on the right hand top of the VA decision,

clearly state each point that you disagree with-

(remember-if you fail to mention something the VA will consider that you accepted it)

Attach and refer to in the NOD any evidence that you feel they have failed to address or any new stuff in support of the claim-

add that you fully intend to continue to appeal until the benefits you seek are granted.

A good NOD can alter a decision.

I know because that has happened to me personally and other vets I have helped.

It is your first strategic and tactical means of laying down some fire lines in the war of the words that VA claims are.

By all means if they have failed to extend your basic rights under 38 USC 5107-

Duty to Assist - make sure they know this and tell them how they failed to apply these fundmental rights to your claim.

I did that twice already with SOC responses.

If the VA has medical evidence and/or IMOs and they fail to consider this evidence -as the narrative and Evidence list shows-on the decision- they have violated your rights to a fair assessment of all evidence.

By doing this men and women- they dont even have to consider your claim properly under Relative Equipoise (Benefit of Doubt regs) because they ,in essense, are making sure that they have nothing to put on your side of the scale-

they will then give some piss poor statement that the merits are not equally for and against the claim so no Benefit of doubt but the reality is

as long as they can ignore evidence and the veteran fails to challenge that point- they have successfully rigged the scale in their favor.

When some vet rep or SO just quickly prepares a NOD for you with limited statements of disagreement-

sure they might cover the whole decision- but this is

your initial opportunity to attack the reasons and bases of what they said-I would never trust some vet rep to do that-

I cannot imagine a vet giving up a chance to tell them specifically why they disagree.

My two Chapter 35 NODs- well one was my daughters-got decision reversals in 3 weeks or less-

Other instances-one a letter from VA on a CUE they made on my old claim and another on some error in a past decision- a CRITICAL error for many reasons- both of these I got reversed on the NOD in abut 3 weeks or less-

The NOD -if detailed enough can also draw them out further and the chance is good they could put their foot in their mouth too- in the narratives.

I have old narratives of past denials here -claims I did win eventually- that are being used in my present claim.

If VA says it and I like it-I use it-I didnt like these medical statements at the time 7 years ago but now it is Golden Medical Evidence.

Save every single piece of VA stuff you get- I am using SOCs from 1996 -1997 to add to the "clear and undisputable medical evidence" (I used that phrase to) in order to succeed in my present claim (s).

Edited January 7, 2006 by Berta

[gunner]

SEAN,

THIS IS A PIECE OF CAKE. JUST SUBMIT YOUR NOD AND IT SHOULD BE A CAKE WALK FROM THERE. I HAD A SIMILIAR PROBLEM ABOUT 10 YEARS AGO AND GOT IT SQUARED AWAY SHORTLY THEREAFTER. MINE WASN'T QUITE AS BAD AS YOURS BUT THAT'S IRREVELANT. GOOD LUCK AND DON'T GIVE UP.