tdiu 1151 And Tdiu

[theo]

I'm new to the forum. I hope I don't loose focus stating my issue.

I'd like to get some feedback regarding my experience with the Guardian's of the Gate.

I would appreciate the forums advice.

History; 1st Service Connected for TB 100% 1969 Pulmonary Cavity right upper lobe, reduced to 0 % at some point in the seventies.

Now 60% SERVICE CONNECTED

60%  TUBERCULOSIS,PULM.,CHRONIC,FAR ADV,INACTIVE

0%  ALLERGIC OR VASOMOTOR RHINITIS

Filed claim in 1998 for Service Connection on 1151 / TDIU

Post incisional pain since 1994 - Treated with medications.

Pain clinic.

Medication Oxcodone 5MG - Gabapentin 300MG

Information for previous Supplemental Statement of Cases,

2002 the Pertinent Law; Regulations; Ratings Schedule Provision:

38 CFR

§3.154 Injury due to hospital treatment

38 USC §5107 Burden of Proof; benefit of the doubt

In 2002, I was Denied entitlement to compensation for incisional hernia as a result of partial nephrectomy because this disability was caused by a failure to follow properly given medical instructions and not by services provided {38 CFR 3.800 and 3.358}

Remanded by Appeals court 2004

Entitlement to Individual Unemployability

Remanded by Appeals court 2005

38 U.S.C. 1151 for an incisional hernia as residual of partial nephrectomy.

(Ref; ANALYSIS VA EXAMINER OPINION Rating decision May 22, 2003:

"Entitlement to individual unemployability is denied because the claimant has not been found unable to secure or follow a substantial gainful occupation as a result of service-connected disabilities. The veteran is consider unemployable due to non-service-connection factors. the service connected disabilities, when considered when apart from the non-service-connected conditions, are not caused for unemployability." {38 CFR 4.16}

In the 2003 Supplemental Statement of Case, the examiner made a entry of Dr. Burstein's progress

note of August 23, 2002, wherein his opinion "Post-incisional pain is, in his opinion, one of the possible surgical complication, unrelated to the patient's non-compliance or surgical mistakes. Dr. Burstein: "I have no evidence to suspect any kind of non-compliance by the Vet that has contributed to this pain."

Note: Nowhere in the 2006 Supplemental Statement of Case does the examiner mention the awful pain associated with the Incisional Hernia has case me of the past 12 years.

How does one bring in the pain issue? are is this apart of the positive and negative evidence which does not satisfactorily prove or disprove the claim.

I looked up the 38 CFR §4.40 Functional Loss, however was able to figure out the language if applicable to my case.

New Supplemental Statement of Case dated February 7th 2006

Subject: Entitlement to compensation under 38 U.S.C. 1151 for an incisional hernia as residual of partial nephrectomy.

Except from Supplement Statement of Case

PERTINENT LAWS; REGULATONS; RATING SCHEDULE PROVISIONS:

§3.102 Reasonable doubt.

  It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. (Authority: 38 U.S.C. 501(a))

 

[50 FR 34458, Aug. 26, 1985, as amended at 66 FR 45630, Aug. 29, 2001]

DECISION:

Entitlement to compensation under 38 U.S.C. 1151 for an incisional hernia as residual of partial nephrectomy is denied.

REASON AND BASES:

There is no doubt that the incisional hernia you have, resulted from the surgical partial nephrectomy in October 1994. However, the issue of entitlement to compensation under the cited Law, rest no on the simple fact of a causative relationship. Entitle to compensation requires that the additional disability not be the result of willful misconduct, that the disability was caused by the VA treatment and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA medical center; or that the proximate cause of the disability was an event not reasonably forseeable. We agree, the surgery caused the incisional hernia.

The claim for compensation for an incisional hernia as residual of partial nephrectomy under 38 USC 1151 is considered. Compensation is payable for any disability which results from VA hospitalization, medical or surgical treatment, or vocational rehabilitation, or as the result of having submitted to a VA medical examination. However, entitlement to compensation for an incisional hernia as a residual of partial nephrectomy is denied as it is considered to be a necessary consequence or expected result of the abdominal or flank surgery.

The Board of Veterans' Appeals, (The Board) remanded this claim for a VA examiner to review the entire claim file and provide an opinion regarding the claimed issue. On December 30, 2005, that examiner, following the complete review of the claims file, to include evidence received since our last Supplemental Statement of the Case, and interview and examination of you, stated that the incisional hernia was a residual of the surgery. He stated that the incisional hernia was a residual of the surgery. He stated that an incisional hernia is a relative common complication of abdominal or flank surgery and is not an unforeseeable consequence of the surgery performed. He stated further that the claimed conditions were not the result of carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of the VA in providing care.

In the absence of evidence showing that the claimed incisional hernia is the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA medical center is not a reasonably foreseeable consequence of the treatment, entitlement to compensation under the provisions of 38 U.S.C. 1151 must be denied.

The remanded issue of the TDIU is still unresolved at the AMC

:P

[Guest Berta]

I see that you were initially SC for tuberculosis-

then reduced to "0" -----then now at 60 % for this condition.

What was the reduction based on?

I could be wrong but I thought that even if the TB was inactive, it's ability to cause residual disability is what they would continuously rate on---

This seems to be the key issue to argue with them on:

"Nowhere in the 2006 Supplemental Statement of Case does the examiner mention the awful pain associated with the Incisional Hernia has case me of the past 12 years" but this is a difficult claim under 1151----

The TDIU- has any doctor told you you are unemployable due to your SC TB condition? Do you get SSA disability benefits for this?

This BVA case is similiar to your claim in many ways-

http://www.va.gov/vetapp05/files5/0530554.txt

It seems that the TB regs changed in the late 70s- maybe that is why they dropped you to "0" ???

Why do you take the Gabapentin? Is that for any condition that could possibly stem from service?

[theo]

Greetings Berta:

Thanks for responding. I'll try to answer your questions.

Berta: What was the reduction based on?

The reduction was based on inactive TB

Berta: I could be wrong but I thought that even if the TB was inactive, it's ability to cause residual disability is what they would continuously rate on---

Theo: When I developed the TB, I had a cavity the size of a fifty cent piece, 3 month of hospital, a shot of Streptomisin every day. I have complained to doctors about the Pleurisy or the pain from something that was there. Something about the wall between the lung and the chest cavity. Doctors have mentioned ghosting pain.

Yes I've have Asthma, and continue to be treated for it. This is how the 60% came into play, plus 0% for Rhinitis.

"Nowhere in the 2006 Supplemental Statement of Case does the examiner mention the awful pain associated with the Incisional Hernia has case me of the past 12 years" but this is a difficult claim under 1151----

Berta: The TDIU- has any doctor told you you are unemployable due to your SC TB condition?

YES... I have a two doctors statement regarding unemployability:

Doctors statement: "The Veteran has been a patient under my care in the neurology clinic for chronic pain syndrome associated with degenerative disk disease in the lumbosacral spine, sciatica, and chronic left L5 radiculopathy. In addition to this condition he is suffering pain from an incisional hernia as a complication from a left nephrectomy operation. It is my determination that this patient's disability form these conditions is permanent and stationary, and the pain from these conditions is sufficient severe enough to make him unemployable."

Another doctor, a who is chief of Pulmonary:

Doctors Statement: "This letter is to certify that the Veteran is unable to perform the breathing maneuvers required during pulmonary function testing. Forced exhalation causes severe pain related to a large abdominal incisional hernia and he is unable to per the test adequately."

Also, I went into the Independent Living Program in 2002 through VOC Rehab.

A Counseling Record - Narrative Report was submitted to the AMC indicating their position as unable to rehabilitate. Placed on Independent Living Status.

My concern is in the Non-service connection of the hernia. How does all this tie together to bring a service connection?

Berta: Do you get SSA disability benefits for this?

The only compensation I receive is the 60% VA @ 58 years.

This BVA case is similiar to your claim in many ways-

http://www.va.gov/vetapp05/files5/0530554.txt

It seems that the TB regs changed in the late 70s- maybe that is why they dropped you to "0" ???

Berta: Why do you take the Gabapentin?

The neurology doctor put me on the Gabapentin to work with the pain meds.

He suggested that this type of medication would decrease the other meds.

Is that for any condition that could possibly stem from service? I don't believe so that I can think of.

I've been on many meds:

Codine sulfate 60 mg

Omeprozole 20mg

Osycodone 5 mg

Gabapentin 300

Fluticasone

Azmacort

Atrovent puff

montelukast 10mg

Loratadine

Desipramine

Flonase nasal spray

Flunsisolide nasal

Disphenhrdramine 50 mg

Diazepam

Albuterol Inhalation

Albuterol Sulfate

Nebulizer machine.

[Guest Berta]

"My concern is in the Non-service connection of the hernia. How does all this tie together to bring a service connection?"

This medical statement you have:

"This letter is to certify that the Veteran is unable to perform the breathing maneuvers required during pulmonary function testing. Forced exhalation causes severe pain related to a large abdominal incisional hernia and he is unable to per the test adequately."

This is a case of "aggravation" of service connection due to NSC condition-

We don't discuss these situations too much but should.

I feel that -in addition to the 1151 claim- you should file a claim under this reg:

Pursuant to

38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310, when aggravation of

a veteran's non-service-connected condition is proximately

due to or the result of a service-connected condition, the

veteran shall be compensated for the degree of disability

(but only that degree) over and above the degree of

disability existing prior to the aggravation. Allen v.

Brown, 7 Vet. App. 439, 448 (1995) (en banc).

I feel the above doctor's statement would support that type of claim.

It might be a much stronger claim than the 1151 claim.

Also- I would apply for SSA if I were you- they have application info on line---the two doctor's statements will help alot there as well as the following report-make sure you have copies of this to submit to the SSA- it is excellent evidence.

"Also, I went into the Independent Living Program in 2002 through VOC Rehab.

A Counseling Record - Narrative Report was submitted to the AMC indicating their position as unable to rehabilitate. Placed on Independent Living Status"

Did this report specifically state that the SC condition made you unable to rehabilitate?

If so-excellent evidence of TDIU and VA needs to know this-

SSAs total disability criteria is different from the VA's . VA focuses only on SC conditions- and in your case the one doctor stated that the SC is aggravating the NSC hernia yet still this is valid reason to support the TDIU claim.

[theo]

I feel that -in addition to the 1151 claim- you should file a claim under this reg:

Pursuant to

38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310, when aggravation of

a veteran's non-service-connected condition is proximately

due to or the result of a service-connected condition, the

veteran shall be compensated for the degree of disability

(but only that degree) over and above the degree of

disability existing prior to the aggravation. Allen v.

Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Would this be considered a new claim, or would it tie in with the pending claim?

Did this report specifically state that the SC condition made you unable to rehabilitate?

If so-excellent evidence of TDIU and VA needs to know this-

Yes, the Counseling Record Narrative Report a box is checked:

Does the Veterans service connected Disability Materially contribute to this impairment of Employability? [YES]

Another box indicate:

Does The Veteran have an employment handicap? [YES]

Has the Veteran overcome the effects of the impairment of the Employability? [NO]

This information was acknowledged as Evidence in the 2006 Supplemental Statement of the Case: Notice of Vocational Rehabilitation and Education Service feasibility determination and vocation plan dated November 21, 2002. Also the two Doctors statements we included in Evidence.

Apparently the RO did not take any doctors letters under consideration due to the none service connection.

Berta, how should I reply to the SSOC? Of course I will check the box indicating dissatisfaction with the SSOC, however the remanded issue regarding the TDIU is yet to be determined.

I'm looking for the correct language to use in my reply to the DRO in St Petersburg. The BVA will have the final decision as you know.

[Guest Berta]

"Berta, how should I reply to the SSOC? Of course I will check the box indicating dissatisfaction with the SSOC, however the remanded issue regarding the TDIU is yet to be determined. "

Do you mean a box on the I-9 form?

dont understand that part---

I feel you should respond to the SSOC and include in the formal appeal all of the important facts you listed here-

be sure to state that

"I believe VARO clearly decidied my claims incorrectly because although the VA referred to the "Notice of Vocational Rehabilitation and Education Service feasibility determination and vocation plan dated November 21, 2002. Also the two Doctors statements we included in Evidence. ' you could add-

'The VA however, failed to consider this important evidence in relation to the claim and provided no rationale for not finding it highly probative.'

I would also add 'Since my evidence of unemployability based on the above reports and medical statements

is due to service connection ,as the Counseling Report notes,and you have medical information that my service connected condition is aggravating my hernia condition, I feel that I am well within the realm of Relative Equipoise and the Benefit of Reasonable Doubt (38 CFR 3.102)for an award under TDIU.

(This is great-

Yes, the Counseling Record Narrative Report a box is checked:

Does the Veterans service connected Disability Materially contribute to this impairment of Employability? [YES])

I am a little confused- are you responding to the SSOC on the formal I-9 form?

If so I would state at the beginning or the end of your statement that :

I take exception to and preserve for appeal all errors the VARO may have made or the Board hereafter could make in deciding this appeal. This includes all legal errors, factual errors, failure to follow M21-1 ,all due process errors and any failures to discharge the duty to assist as volation of basic VA laws and regulations within 38 CFR and 38 USCS.

I would put that all in under the boxes under 9 A and B ( it fits in arial type)

If this is in regards to both the TDIU and the hernia issue I would refer to this medical statement

Doctors Statement: "This letter is to certify that the Veteran is unable to perform the breathing maneuvers required during pulmonary function testing. Forced exhalation causes severe pain related to a large abdominal incisional hernia and he is unable to per the test adequately."

And add that not only do you feel this is a Sec 1151 ratable condition but also that this is a condition (the pain from the NSC hernia) that is aggravating your service connected condition, as the medical evidence reveals, and could be rated properly under 38 CFR 3.310 if not Section 1151,38 USC.

They dont want attachments to be provided with the I-9 but it is your chance to restate emphatically what evidence the VA has that proves your claims and what they have failed to consider.

Did this help? Is your remand published yet at the BVA web site?

Edited February 25, 2006 by Berta

[theo]

Berta, this is the 1151 issue only, the TDIU is yet to be rated. However it was remanded int 2004 and the 1151 was remanded in 2005.

I sent the reply to the AMC via registered mail regarding my SSOC. I wished I'd gotten your reply to my last post before I sent out the reply, however I missed it.

Nonetheless below is the reply along with the signed SSOC Expedited Action Attachment. There was no 1-9 form attached, only the Supplemental Statement of the Case and the attachment. I did attached this information in the package in answer to the denial.

What I need to know is, will the information sent be attached to the SSOC for the BVA's review since I 've agreed to waive and forward my SSOC on to the BVA for final rating?

Can you give me a read on the language used in my reply.

Thanks again for you help

Theo

PS; This is the decision on the remand to the BVA being rated by AMC. The 1151 and TDIU remand is under

04-0835

A copy of the doctors letters was attached as well as the Voc Rehab Evaluation Report.

----------------------------------

Dated February 28, 2006

Response To Supplemental Statement Of the Case dated 2/7/06

Issue: Entitlement to compensation under 38 U.S.C. 1151 for incisional hernia as residual of partial nephrectomy.

To: VARO Department of Veterans Affairs

Appeals Management Center Resource Unit

PO Box 417

Bay Pines, FL 33744-0417

In Rely:

Statement: This is to acknowledge that I am not satisfied with the decision regarding my appeal and will waive the 60 day waiting period on the Supplemental Statement Of the Case, so my case may be forwarded immediately to the Board of Veterans' Appeals (BVA) for their decision.

Attached is my rebuttal to Reason and Bases for Decision.

DECISION:

AMC: Entitlement to compensation under 38 U.S.C. 1151 for an incisional hernia as residual of partial nephrectomy is denied.

REASON AND BASES:

AMC: There is no doubt that the incisional hernia you have, resulted from the surgical partial nephrectomy in October 1994.

ANSWER: I agree that the Incisional Hernia resulted from the surgical procedure performed by the VA in 1994, as well as the pain associated with the Incisional hernia which you neglected to mention in your Reason and Bases.

ANSWER:The issue of pain was addressed by two doctors as stated in the evidence:

Statement: Dr. M.D. neurologist West LA VAMC dated May 12th, 2004 and October 26, 2005: "The Veteran has been a patient under my care in the neurology clinic for chronic pain syndrome associated with degenerative disk disease in the lumbosacral spine, sciatica, and chronic left L5 radiculopathy. In addition to this condition he is suffering pain from an incisional hernia as a complication from a left nephrectomy operation. It is my determination that this patient's disability form these conditions is permanent and stationary, and the pain from these conditions is sufficient severe enough to make him unemployable."

Statement: M.D. Chief of Pulmonary dated May 24, 2004:

"This letter is to certify that the Veteran is unable to perform the breathing maneuvers required during pulmonary function testing. Forced exhalation causes serve pain related to a large abdominal incisional hernia and he is unable to per the test adequately."

AMC: However, the issue of entitlement to compensation under the cited Law, rest not on the simple fact of a causative relationship. Entitle to compensation requires that the additional disability not be the result of willful misconduct, that the disability was caused by the VA treatment and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA medical center; or that the proximate cause of the disability was an event not reasonably foreseeable. We agree, the surgery caused the incisional hernia.

ANSWER: In a letter dated May 24, 2004, the Pulmonary Specialist describes exhalation breathing maneuvers aggravated by the Incisional Hernia. This not only represents a causative relationship, it supports without a reasonable doubt an aggravation of the Service Connection. Pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310

AMC: The claim for compensation for an incisional hernia as residual of partial nephrectomy under 38 USC 1151 is considered. Compensation is payable for any disability which results from VA hospitalization, medical or surgical treatment, or vocational rehabilitation, or as the result of having submitted to a VA medical examination. However, entitlement to compensation for an incisional hernia as a residual of partial nephrectomy is denied as it is considered to be a necessary consequence or expected result of the abdominal or flank surgery.

ANSWER: Also, 38 U.S.C. § 101(16) only requires a disability and a temporal relationship between that disability and active service. The definition does not mention any requirement for a diagnosis of an underlying malady or condition. Court decisions have held that "'disability’ as used in § 1110 refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated." Allen v. Brown, 7 Vet. App. 439, 448

AMC: The Board of Veterans' Appeals, (The Board) remanded this claim for a VA examiner to review the entire claim file and provide an opinion regarding the claimed issue. On December 30, 2005, that examiner, following the complete review of the claims file, to include evidence received since our last Supplemental Statement of the Case, and interview and examination of you, stated that the incisional hernia was a residual of the surgery. He stated that the incisional hernia was a residual of the surgery. He stated that an incisional hernia is a relative common complication of abdominal or flank surgery and is not an unforeseeable consequence of the surgery performed. He stated further that the claimed conditions were not the result of carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of the VA in providing care.

ANSWER: 38 U.S.C. 1151 also provides: “Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, [or] medical or surgical treatment, . . . and such injury or aggravation results in additional disability to . . . such veteran, disability . . . compensation . . . shall be awarded in the same manner as if such disability, [or] aggravation . . . were service-connected.” (February 2, 2001 VAOPGCPREC___4-2001 )

ANSWER: The examiner erred in the Supplemental Statement of the Case when failing to consider the incisional hernia as “an aggravation of an injury” as cited in 38 U.S.C. 1151. Yet acknowledges proximity . The Veteran has and have conditions related to upper respiratory conditions. Over the years and before the Partial Nephrectomy, the veteran has been taking steroidal medication: (Triamicinolone Acetonide -Azmacort) Albuterol Sulfate, and Provental for Asthma, Chronic Bronchitis and Rhintis. The Pain and Incisional Hernia has caused problem from normal daily life. As such,"disability as used in § 1110 refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition... shall be compensated." Allen v. Brown, 7 Vet. App. 439, 448

AMC: In the absence of evidence showing that the claimed incisional hernia is the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA medical center is not a reasonably foreseeable consequence of the treatment, entitlement to compensation under the provisions of 38 U.S.C. 1151 must be denied.

ANSWER: As provided earlier, 38 U.S.C. 1151 states compensation “shall be awarded” “where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, [or] medical or surgical treatment, . . . and such injury or aggravation results in additional disability to . . . such veteran, disability . . . compensation . . . shall be awarded in the same manner as if such disability, [or] aggravation . . . were service-connected.”

Veteran's Statement: The remanded issue of the TDIU is still unresolved.

Edited March 1, 2006 by theo