Sc Denial For Lumbar Injury

[Scott D]

Here is the quote from the Statement of the Case issued recently.

"Service medical records show that you were treated on Nov of 2004 for complaints of thoracic and upper lumbar discomfort which was diagnosed by a chiropator as chronic lumbar thoracic strain."

"The evidence does not show that you had a chronic thoracolumbar condition while in service, despite the term of "chronic" on the treatment note".

Does an of this make sense or am I just not getting it? I was seperated under honorable condition in april of 2005, all of the Chiropratic treatments 6 in total, were clearly in service. I was even waived from perfoming in a physical fitness test due to re injuring my back.

How should I approach this fight?

[frosty69]

even with medical records, the RO still denies claims, for very silly reasons. I have one medical report from basic training, that states, I went into the Doctor, with pain shooting DOWN, both legs, from the lower back, the exact statement, but also right below is the word pes planus, as i also went to the doctor about my flat feet problem, so the RO, says, my pes planus was not agravated by military service, and that the pain coming shooting down from my back came from my feet. I asked the RO, what it is about the word DOWN from the back, they don't understand, but they just ignore the question, and keep denying with the same reason, but now the claim is suppose to go the BVA, so hope someone their understands english.

[Hoppy]

Whether or not a condition is chronic is a medical determination that can only be made by a doctor. At best the adjudicator is saying that more medical evidence is needed. This could be as simple as having a medical doctor review the SMR and your current records and have him write a report indicating that the condition in the military is responsible for the current condition. At worst the adjudicator is playing doctor and or not giving you proper advice as to how to advance your claim.

In any medical condition it is always necessary to get a medical statement indicating that the doctor is of the opinion that the current condition is the result of events in the military. I had this same problem and followed the advice of Clark Evans and Alex (old timers on hadit) who both told me to get this type of letter. I got the letter and I got service connected. Get the head of Ortho to write the report. If he refers you back to your primary doctor go to another VA hostital. That is what I wound up doing. It's not doctor shopping if the first doctor refuses to get involved. Each hospital administrator has the authority to tell heads of departments not to write reports. Some hospitals do and some don't.

If you have an SO and he did not tell you to get this type of letter, then he is a wishful thinker. If your SO see's this denial and has no good advice change your SO before you appeal. Once you appeal you can not change SO's until after the appeal is done. This happened to me.

[Hoppy]

I should also add that if there is a long period of time between your military experience and the reoccurance of symptoms, have the doctor include a statement that the absence of symptoms is not indicative of a full recovery and the current condition is definately related to the inservice events.

There is an adjudicational protocol that is used. They look for continuity of treatment as part of the protocol. If there is a big lapse of time with no records of treatment, find those records or like I said have the doctor address this as not indicative of a full recovery.

It sounds like good old fashioned siacata to me. I have been battling this for 30+ years. I had a doctor limit my lifting in 1976. The workers comp courts assessed a perminent disability for almost identical symptoms to yours. Do not give up. Get good medical documentation that addresses inservice, post service, continuity of symptoms and shows that the current condition is sufficiently chronic to be considered disabling.

[Scott D]

Awesome thanks for the advice.

Also when reading the VBA decsions, if the case is remanded back to the RO is this a good or bad thing?

Edited February 14, 2006 by Scott D

[Guest Berta]

Scott- I always consider a Remand a good thing for the vet- in that it is not a BVA denial at all- and the claim is still in appeals status-

The bad part is that many of these remands could have been avoided at the VARO-

Remands add much more time to claims- and no one at the VARO understands what "expedite" means.

I have been reading a lot about the VCAA- the VA is supposed to send a letter , under the VCAA, that requests what they need or that they will attempt to get other records- etc stuff like that-

I have seen some vets challenge this in their appeals- saying that the VA never told them they could obtain an independent medical opinion or one from their private physician-

They make a great point- the VARO level should be telling the vet exactly what they need to succeed-

A Remand often calls this to the VAROs attention- if they failed to get all the evidence to support the claim-

and some remands show that VAROs ignore probative stuff that the BVA feels has to be expanded on---

I read a case the other day- BVA -PTSD-(I posted a link at hadit)

The vet had two medical opinions that the VARO denied on stating that the VA opinion had more merit.

However the vet had used something from Dr. Boscarino published in the federal register that supported the veteran's PTSD to heart disea claim.

The VARO apparently disregarded this- yet BVA felt it put the claim into Relative Equipoise and the veteran succeeded.

These idiots at the VAROs do not weight evidence properly under 38 CFR 3.102.

Like I always say- even if the vet has much more probative evidence than they do, they kick Blind Justice in the knee so the vet's side of the scale tumbles.

I feel very strongly that- even with probative evidence for the claim- a vet has to aggressively suggest that they weight the evidence properly and never allow a statement that the claim was not in equipoise to go unchallenged.

I say attach the actual reg and reference in any NOD or response.

The VA sarcastically has stated that I made submissions of "magazines and internet print outs" well yeah----

along with my IMOs , I certainly sent them medical information from the ADA, John Hopkins, Cardiology today- etc etc-and even the from the VA itself in support of my claims.

The BVA recognizes medical treatises and studies yet the VAROs try to discount them.

I say dont depend on this type of evidence

(although the first VVA hepatitis fromair gun win came at the VARO level due to a medical study from Endland)but use it to support the medical evidence you have.

If some quack opinion from VA is NOT supported by the actual medical evidence, that point along with some medical treatise can help a lot to weigh the scale in your favor.

I will give an example-

I have an IMO that says my husband had diabetes mellitus which the VA never diagnosed or treated.

Also I went through every chemistry report finding values that were indicative of diabetes, along with his glucose readings-and sent these medical internet abstracts in-

I found plenty of info from the ADA that supported the IMO as well as his end organ damage and sudden death from diabetes.(peripheral diabetic neuropathic sudden death syndrome)

He had an unusual symptom- oral candidiasis- which a VA doctor told him was due to his high glucose and the doctor wanted to test him for diabetes-that test was never done-

I found some extraordinary information on this unusual condition-positively associating it with diabetes-

and in a dentistry college I found information that this symptom is a prime indicator of diabetes in anyone never diagnosed with DMII before-

stuff like that---it is in the VA's own DMII training letter too-

I am sorry that we have to become detectives, legal beagles, and 'doctors' sometimes to win our claims-

But I say argue every point you can if you get a denial. And push for Relative Equipoise or Reasonable Doubt if you feel your evidence is better then or at least equal to theirs.

[Hoppy]

Scott,

It is unfortunate that veterans have to do the VA's thinking for them. However, some disabilities are problematic. Yours is one of those. I think the reason they denied that your condition was chronic in service is because there is a rating instruction that says that any chronic condition that occurs is service must be service connected if the same condition is diagnosed post service. Somebody who has access to the regs, could probably find this.

If you could get a doctor to review the SMR and make a statement that the condition inservice was infact indicative of a chronic condition and cite the reg I stated that might be sufficient. The next question is to get your statement to tell them how to rate it.

It sounds like you are addressing an issue that was already addressed when the military doctor called it "chronic". There is also a rating instruction that a disease is not chronic just because a doctor noted it as such while in the military. That is why the additional ammo of getting a new report based on a review of the number and type of treatments in the military constitutes a chronic condition is necessary.

Reading BVA cases is a good idea. A good goal is to win your case before it goes to the BVA. To do this you have to let the RO know that you are not a roll over. Hit them with the best evidence you can get.