Is This Possible, Propable, Definite Information Useful?

[halos2]

Was reading my SMR's for the thousandth or so time and I noted in the orthopedic clinic notes;

"Hx as noted. Occasional pulling in L thigh...Stands all day as(job) tech this aggravates pain!" Then with exam notes "mild pulling sensations and spasm and l-s strain to back"(noted sprain, strain, spasm to l-s back). Have nothing further to add except L-S corsett for work. Valium and Darvocet for pain. There are a few other notes of no relief of pain with corsett, encouraged.

Well why didn't they attempt to have me change jobs? Why didn't they attempt to cross train me in another position if standing would aggravate my painful condition?

Some prior notes in SMR (condensed for space)

This went on for months prior with rest,heat,robaxin,zactirin ordered. PT treatments ordered for 20 days with no improvement, Valium ordered prior too. Pain radiating to left leg, ROM is decreased, has had low back pain for months, persistent low back pain, still symptomatic to ortho, little or no relief with meds, PT, and rest.

My question is all this: in this documentation and is the "stands all day as a (job) tech this aggravates pain!" and they did nothing to allieviate the pain or job position, so is this the EVIDENCE that will finally show how they dropped the ball with/on me??

BTY I have presented 38+ years of medical documentation from Dr's of back treatment all these years! So far denied r/t nurse pract. and case is at BVA...same np who said I was never treated at this vamc, ever, yet the records show 3 yrs tx in the 80's...go figure, right??

Form 89 # 17 on admission statement of examinee's health in own words "GOOD " and on discharge form 89 "FAIR". Plus other discrep. on other forms previously addressed. <_<

Edited July 7, 2009 by halos2

[Hoppy]

.

The defunct nurse pract. said I had a one time injury and working years as a nurse is what made my back a disabling condition...

This is a pretty weak argument from a NP. Unfortunately, it sounds like even though you have years of treatment this NP was the only doctor who addressed etiology as it relates to the military. As such the rater had no evidence in favor of the claim.

I think there is only one issue in your claim and this is whether or not your current condition is related to service. I am not convinced that you need to show that you had a herniated disc in the military. You will need to get an opinion that the current condition is a normal progression of the symptoms in the military and the long term treatment record is indicative of the progression of the symptoms in the military rather than indicating that a significant injury occurred post service. I really think they blew it by getting an opinion from an NP. The BVA could remand this for another C&P if not then you need to get an IMO

Directly contradicting the NP' statement with an opinion that your current condition is a manifestation of the symptoms you had in the military would be good. Additionally, have that doctor state that the occupation hazard as described by the NP is not supported by any empirical studies. It is a two pronged attack. One is to discredit the NP and then add evidence in support of the claim.

To be truthful from what I have read I think you will find the BVA to be more thorough than the RO. So far you got a bogus C&P and no evidence to support the claim.

If you start reading BVA cases I an sure you will find cases similar to your that were SC'd at the BVA. Considering the amount of treatment and ongoing symptoms you have i think the BVA will be of the opinion that the NP was not qualified to write the opinion and that the C&P should have been performed by a more qualified clinician. If the BVA shoots you down without getting a C&P from a more qualified doctor, get a lawyer. The idea that a NP did your C&P makes me want to hurl.

I have told another veteran with a similar claim to your to get an attorney and he later emailed me that the attorney won his claim for service connection. I told him this same story. This is the bottom line from my point of view. 30 years ago I had the same back injury as you when I was 25 years old. The doctor who treated me at Kaiser told me at that time that I would be disabled the rest of my life. I had no diagnosis of a herniated disc. I had no MRI’s. I did try to work with a back brace. It did not work. I told the doctor that I could not work. I had to lift and move 2000 lbs of printed paper each shift. He told me to take a week off. I came back a week later and told him that was not enough time off. He told me to take two more weeks off. I came back two weeks later and told him I felt fine and was ready to return to work. To my surprise he refused to release me to work and told me to get a job doing sedentary work and not to lift more than 25 pounds. The doctor was of the opinion that my symptoms as I described them were consistent with a significant injury. I got a lawyer and I was awarded a permanent disability rating under workers comp. This was standard operating procedure. The fact that veterans are discharged without having a veterans advocate review the SRM makes military personnel second class citizens when compared to the way people were treated in civilian jobs. I agree with what you implied. If your work after the military did cause your symptoms it was because the doctors in the military failed to advise you that you had a significant back condition and that you should do sedentary work.

The doctor was right. I have had lower back problems all my life. To this date I have never had an MRI or any other diagnosis. I have been flat on my back for up to two months. I have many minor re-occurrence. I do not even see doctors. I know what exercises to do and I rest in bed until the pain goes away.

Edited July 8, 2009 by Hoppy

[Hoppy]

This letter got me over thirty thousand from workers comp for my back condition.

Edited July 8, 2009 by Hoppy

[Berta]

"I had 2 imo's, years of medical info/documentation of treatments. The defunct nurse pract. said I had a one time injury and working years as a nurse is what made my back a disabling condition"

Was the "one time" injury documented in your SMRs?

Did the IMOs have a statement supporting the current disability to your service?

Was there any question -in the VA's opinion- of chronicity?

Did they list ALL of your pertinent evidence and then opine on it all?

[halos2]

"I had 2 imo's, years of medical info/documentation of treatments. The defunct nurse pract. said I had a one time injury and working years as a nurse is what made my back a disabling condition"

Was the "one time" injury documented in your SMRs?

Clearly yes along with the mths of treatment et ect as previously addressed here in this subject matter earlier military dr said pain continues radiates to left leg, stands all day as tech, and this aggrivates the pain and have nothing to add except wear a corsett for work...ordered more valium and darvocet

Did the IMOs have a statement supporting the current disability to your service?

Clearly yes

Was there any question -in the VA's opinion- of chronicity?

The va said the Dr's statements were not credible as they did not relate it to an auto accident yrs later and 2 fall s on wet floors at work...the reason they even knew about these continuance of chronic disability which originated with the inservice back condition and continued treatment within 1 yr post discharge till current, is because it was in the records the dr's sent treatments and I put it on my records of treatments too. The drs said the back condition/pain originated inservice was chronic and regressed over the years and told of further tx to back r/t the accident and falls and the structure was weakened fron military service and continued to get worse over all these yrs(condensed version here for you to get that the drs told va)

Did they list ALL of your pertinent evidence and then opine on it all? No they did not. T

They just said on form 88/89 it says "no problem from one time back injury on date)...the smr's clearly indicate it was mths and the date they have on form88/89 for a back injury is nonexistent of any injury...the records have no injury/no sick call visit/ no hosp visits at all of that date...the real injury was months later and there were 13 dr visits, 20 pt treatments, ortho eval, pain meds, valium, corsett, rest, heat ordered...and pain persists continue to wear corsett written.

Edited July 9, 2009 by halos2

[Hoppy]

halos2

I could find 100's of the types of awards I posted below. Your claim is way stronger than this one. No re diagnosis or mis diagnosis is required. All the doctor has to establish is a nexus.

I am a little confused. Did the denial say you had some slip and fall injuries post servbice and they used this as evidence against the claim. If so it sounds like they are playing doctor. The evidence against the claim was the statement that standing at work caused your current condition. If the doctors did not address the signifance of the slip and fall problems the raters had no business using it as evidence against the claim. It appears to me you clearly had a significant injury in the military. Battle them to the end.

Citation NR: 9619474

Decision Date: 07/09/96 Archive Date: 07/23/96

DOCKET NO. 93-23 682 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Phoenix,

Arizona

THE ISSUES

1. Entitlement to service connection for the residuals of

injuries to the right leg, including arthritis of the right

knee.

2. Entitlement to service connection for the residuals of

injuries to the left leg, including arthritis of the left

knee.

3. Entitlement to service connection for residuals of

injuries to the back, including arthritis and degenerative

disc disease.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Patrick J. Costello, Associate Counsel

INTRODUCTION

The veteran had active military service from September 1965

to March 1968.

This matter came before the Board of Veterans’ Appeals

(hereinafter the Board) on appeal from a January 1992 rating

decision of the Department of Veterans Affairs (VA) Regional

Office (RO), in Phoenix, Arizona, that denied the veteran’s

claim for entitlement to service connection for the residuals

of injuries to both legs and the back.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran asserts that he should be granted service

connection for multiple joint traumatic arthritis along with

disabling conditions of the lower extremities and back. He

says that these conditions are a result of being hit by an

automobile while in service. He claims that the residuals of

this vehicular accident have left him in constant pain and

discomfort. Moreover, he complains that he is unable to

participate in sporting events, and is limited in the type of

activities he may engage therein. He therefore requests that

the Board find in his favor and grant him VA compensation

benefits.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.

§ 7104 (West 1991 & Supp. 1995), has reviewed and considered

all of the evidence and material of record in the veteran’s

claims file. Based on its review of the relevant evidence in

this matter, and for the following reasons and bases, it is

the decision of the Board that the evidence is in equipoise,

and thus service connection for disabilities of the lower

extremities and back is granted.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable

disposition of the veteran’s appeal has been obtained by the

agency of original jurisdiction.

2. During the veteran’s three years of military service, he

suffered from injuries and conditions of both lower

extremities and the lumbar spine.

3. The veteran has been diagnosed as suffering from

degenerative disc disease and arthritis of the lumbar spine.

He has also been diagnosed as having arthritis of the knees.

These conditions have been etiologically linked with his

military service.

CONCLUSIONS OF LAW

1. The veteran’s right leg disability, including arthritis

of the right knee, was incurred in active service.

38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1995).

2. The veteran’s left leg disability, including arthritis of

the left knee, was incurred in active service. 38 U.S.C.A.

§ 1110 (West 1991); 38 C.F.R. § 3.303 (1995).

3. The veteran’s lumbar spine disability, including

arthritis thereof and degenerative disc disease, was incurred

in active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.

§ 3.303 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In December 1967 the veteran was struck by an automobile

while returning to his post. Because of that accident, the

veteran was initially treated for bilateral sprained ankles.

Shortly after that incident, the veteran was released from

active duty. Prior to his release, he underwent an end-of-

service medical examination. See SF 88, Report of Medical

Examination, January 31, 1968. There were no physical

defects or diagnoses noted on that examination report. The

Board would also note that when the veteran completed a SF

89, Report of Medical History, in January 1968, he failed to

declare any problems with his lower extremities or his back.

The veteran did not file for VA benefits immediately after he

was released from active duty. In fact, he did not file for

VA compensation until September 1991, twenty-three years

after he was discharged. Upon receiving the veteran

application for benefits, the RO reviewed the veteran’s

folder, and in January 1992, it denied his claim. VA Form

21-6796, Rating Decision, January 14, 1992. The veteran was

notified of this decision and subsequently appealed that

decision to the Board.

The veteran claims that as a result of the accident he

suffered from while in service, he has now developed a

bilateral knee condition. He further maintains that while in

service he experienced pain and discomfort in his lower back.

As a result of that pain and discomfort, he avers that he

developed a more debilitating condition from which he now

suffers. He has therefore asked for VA benefits for these

three conditions.

When a claim for service connection comes to the Board, we

must first determine whether the claim is well-grounded. A

well-grounded claim requires more than mere allegations; it

must be plausible and with merit. 38 U.S.C.A. § 5107 (West

1991); Tirpak v. Derwinski, 2 Vet.App. 609 (1992); Murphy v.

Derwinski, 1 Vet.App. 78 (1990). In this regard, the

veteran’s service medical records show treatment for

conditions of the lower extremities and the back as do his

post-service medical records. It is plausible that these

conditions are etiologically related. Therefore, we find

that the veteran has presented a well-grounded claim.

Additionally, the facts relevant to this appeal have been

properly developed and the obligation of the VA to assist the

veteran in the development of his claim has been satisfied.

Id.

Under 38 U.S.C.A. § 1110, 1131 (West 1991), compensation will

be provided if it is shown that the veteran suffers from a

disease or injury incurred in or aggravated by service. In

addition, service-connection may be granted for any disease

diagnosed after discharge, when all of the evidence,

including that pertinent to service, establishes that the

disease was incurred in service. 38 C.F.R. § 3.303(d)

(1995). Moreover, per 38 C.F.R. § 3.310 (1995), a disability

that is proximately due to or the result of a service-

connected disease or injury shall be service-connected. When

service connection is established for a secondary condition,

the secondary condition shall be considered as part of the

original decision.

Upon receiving and reviewing the claims folder at the Board,

we concluded that additional information was needed before we

issued a final decision on the merits of the claim. Thus, in

May 1994, we remanded the claim. Board Remand, May 3, 1994.

In that remand, we asked that an orthopaedic specialist

review the claims folder and examine the veteran. Once these

two items were accomplished, the examiner was asked to

express an opinion as to whether the veteran’s current

maladies were related to his military service or to injuries

that occurred before or after service.

In response to our remand, the veteran was seen at the

Phoenix VA Medical Center in August 1994. See Joints Exam,

August 23, 1994. Upon completion of that examination, the

veteran was diagnosed as suffering from degenerative

arthritis of the lumbosacral spine and both knees. He was

also classified as having degenerative disc disease of the

lumbosacral spine. Additionally, the examiner expressed the

following:

Based on Mr. M.’s history together with

the findings on today’s examination, it

would appear that there is a definite

cause-effect relationship between the

vehicular accident that Mr. M. was

involved in . . . during his period of

time in the service and his current

symptoms and findings related to the back

and lower extremities.

In determining whether service connection is warranted, the

VA must determine whether the evidence supports the claim or

is in relative equipoise, with the veteran prevailing in

either event, or whether the preponderance of the evidence is

against the claim, in which case service connection must be

denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v.

Derwinski, 1 Vet.App. 49 (1990). Here there is probative

evidence that reasonably demonstrates that the veteran’s

three conditions may have had their onset in service. The

Board, in accordance with Thurber v. Brown, 5 Vet.App. 119,

122 (1993), Hatlestad v. Derwinski, 3 Vet.App. 213, 217

(1992) (Hatlestad II), and Colvin v. Derwinski, 1 Vet.App.

171, 175 (1991), naturally gives due weight to the opinion

expressed by the VA examiner in August 1994. The Board

therefore finds that the evidence is at least in equipoise

and that the veteran is entitled to the resolution of any

doubt in his favor. It is felt that to conclude that the

veteran’s disabilities of the lower extremities and the back

did not have their origins or onset during service would,

quite simply, not withstand scrutiny by the Court. In view

of the foregoing, the Board finds that the evidence supports

the veteran’s claim. 38 U.S.C.A. §§ 1110, 5107 (West 1991);

38 C.F.R. § 3.303 (1995).

ORDER

1. Entitlement to service connection for the residuals of

injuries to the right leg, including arthritis of the right

knee, is granted.

2. Entitlement to service connection for the residuals of

injuries to the left leg, including arthritis of the left

knee, is granted.

3. Entitlement to service connection for residuals of

injuries to the back, including arthritis and degenerative

disc disease, is granted.

JACK W. BLASINGAME

Member, Board of Veterans’ Appeals

The Board of Veterans’ Appeals Administrative Procedures

Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741

(1994), permits a proceeding instituted before the Board to

be assigned to an individual member of the Board for a

determination. This proceeding has been assigned to an

individual member of the Board.

NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West

1991 & Supp. 1995), a decision of the Board of Veterans’

Appeals granting less than the complete benefit, or benefits,

sought on appeal is appealable to the United States Court of

Veterans Appeals within 120 days from the date of mailing of

notice of the decision, provided that a Notice of

Disagreement concerning an issue which was before the Board

was filed with the agency of original jurisdiction on or

after November 18, 1988. Veterans’ Judicial Review Act,

Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The

date which appears on the face of this decision constitutes

the date of mailing and the copy of this decision which you

have received is your notice of the action taken on your

appeal by the Board of Veterans’ Appeals.

- 2 -

DDD - copied and pasted from a med site.

If you have chronic back or neck pain, you may have degenerative disc disease. It commonly occurs in your low back (lumbar spine) or neck (cervical spine). Developing degenerative disc disease is a gradual process…… there are even many stages and states your discs can go through as part of DDD. They can bulge, herniate, or thin. Because of disc changes, your vertebrae can be affected-you can see this in the illustration, too. For example, bone spurs (osteophytes) can form as your spine tries to adjust to the intervertebral disc changes.

Edited July 11, 2009 by Hoppy

[Hoppy]

The va said the Dr's statements were not credible as they did not relate it to an auto accident yrs later and 2 fall s on wet floors at work...the reason they even knew about these continuance of chronic disability which originated with the inservice back condition and continued treatment within 1 yr post discharge till current, is because it was in the records the dr's sent treatments and I put it on my records of treatments too.

It sounds to me that the doctors who wrote the report that associating your current condition to service were aware of the car accident and slip and falls. The VA would have denied the claim saying that they did not review these documents concerning the car accident and slip and falls. Failing to relate the the symptoms to the accident does not appears to be the issue. Relating the symptoms could be the same as saying the car accident caused your current condition. What I really think the are saying is that the IMO did not discuss or consider whether or not the post service accidents were or were not the cause of the symptoms.

If you can go back to the IMO doctors and get a clarification on this issue that is favorable that would be really strong evidence. By saying the IMO was not credible they are saying that there is no evidence in favor of the claim.

This is all bogus. What they really should be doing is scheduling ongoing exams to resolve these issues. They are dening the claim rather that properly developing the claim. The injuries you had in the military should justify full development of your claim. RO'S are notorious for this type of BS. They did it to me. I won on appeal.