Good News!

[dav_marine72]

Exactly 1 1/2 years later the U.S. Court for Veterans Claims has remanded all four of my issues to include my back (30%), testicle pain (0%), left (0%) and right foot (10%). They wanted to toss the testicle pain but thanks to Dr. Bash and my attorney we took that one too. Finally some good news. Now the question is what will they rate me!!!!!!!!!!! LOL. I'll be happy for one day at least.

Thank you for everyone that helped and put up with my BS for the last 1 1/2 years. Too many names to name.

P.S. anyone have any idea what happens next?????????

[carlie]

P.S. anyone have any idea what happens next?????????

Yes, it's time to grab a fishing poll and wait.

Hope it turns out great.

carlie

[Testvet]

I have never heard of them granting a rating for "pain" I have no idea how they will rate it rofl sorry I am sure it hurts especially there in the family jewels I haven;t ever had a case at CAVC so I don't know how they handle it, but I am sure your local RO will only grant the lowest percentage they can....

Edited September 1, 2009 by Testvet (see edit history)

[dav_marine72]

Thanks everyone,

The lowest rating would be fine LOL. They would have to give me a 10 and 10 for testicle and left foot, 20 for right foot, and for the back I'm 20 and 10 so maybe 40,40,40 because I have nerve issues and atrophy of both my legs. All of that combined with my 50 (mental), 30 (asthma), 10 (hypertension), 10 (eczema), 10 (gerd) and I'm missing something else but it will take me from 80 now to either 90 at worst or 100 on the schedule at best. Not too mention the court items all go back to 2000 so I'll get a nice chunk of back pay. I'll take it!

[jbasser]

Remands from the court are always supposeed to get head of the line privledges (receive expeditious treatment) so it will not be much longer. ( According to law that is)

J

[Pete53]

You should also get rated for the pain in the ass that the VA is

Congrats

[LarryJ]

Somatoform Disorders

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

9421 Somatization disorder

9422 Pain disorder

9423 Undifferentiated somatoform disorder

9424 Conversion disorder

9425 Hypochondriasis

Edited September 1, 2009 by LarryJ (see edit history)

[dav_marine72]

Thanks J, Pete, and Larry,

Yeah that's what I thought was supposed to happen with the front of the line deal. Lets see LOL. Yeah I want combat pay for this crap. I told the RO in 2004 this crap should have been rated higher. Thanks for the pain rating code Larry. I'm not sure who posted that you can't be rated for pain but even before I saw your post I knew you could be rated for pain. It gets thrown in with the whole CFR 4.10 functional impairment arguement. In my case the pain makes me want to puke and I miss work from it. Tried telling them that from the start but they rated me under the prostate and whether I soiled myself. Dr. Bash wrote a letter stating he thought based on my records and x-rays that my pain orginated from the Ilio-inguinal nerve area. Under that I should be rated severe 10% based on puking, limping, missing work, nausea, etc. No VA doctor or examiner ever presented a different finding or disputed Dr. Bash's opinion. Yet the rater who is some puke with no medical training said she thought that I had a prostate issue LOL. I love how these VA employees start to think they are doctors!

I feel like I should be a VA lawyer now after all this crap.

[carlie]

The "expeditious" handling of my claim on remand is on it's 3rd year,

but then I'm at the BVA level and not the Court ~~~~ yet.

jmho,

carlie

[dav_marine72]

3 years? Who remanded the claim? I know it took a 2001 appeal of these issues just remanded from the court 5 years to get to the BVA. Then another 2 to get to the court. However, the BVA made a decision within 2 years. 3 years sounds nuts unless your at an RO.

[Commander Bob]

Exactly 1 1/2 years later the U.S. Court for Veterans Claims has remanded all four of my issues to include my back (30%), testicle pain (0%), left (0%) and right foot (10%). They wanted to toss the testicle pain but thanks to Dr. Bash and my attorney we took that one too. Finally some good news. Now the question is what will they rate me!!!!!!!!!!! LOL. I'll be happy for one day at least.

Thank you for everyone that helped and put up with my BS for the last 1 1/2 years. Too many names to name.

P.S. anyone have any idea what happens next?????????

Is this a remand back to the BVA or your RO for re-adjudication? This is indeed good news, and I congratulate you on your perseverance. An out right win would be better news. Of course CAVA reversals are probably fewer than 1/2 dozen a year. Can you tell us more about your remand?

[pacmanx1]

I am not a doctor and I am not a lawyer but on your claim for testicle pain did VA give a rating code of 7599-7525 pain in testicles. I don't think there is an evaluation for it, at least it is not one I can find. What did doctor bash say was the cause of your testicle pain. Normally VA only gives a rating of 0% to make it service connected but I am not sure if it is compensable. I do hope the best for you please keep us informed

[dav_marine72]

Hi Commander Bob,

I'm waiting to hear from my attorney where it is going but it will either be the BVA, the RO, or the Appeals Management Center. I'd rather have the appeals management center personally because the RO and BVA have screwed my claims up over and over.

As far as the remand go my left and right feet were service connected in 95 after I left the Marines. I did 4 years and got honorably discharged. I broke my right foot in boot camp and my left in Marine combat training. They now believe because I have high arch feet that all the stress of humping and running up the mountains of Camp Pendleton went to my lower back instead of my feet. So when I got out in 95 they gave me 10% for my right and 0% for my left foot. I also received 0% for asthma which I developed in service. At the time it didn't seem like a big deal because I could lift and run and life was good. Oh they also connected me for a chronic prostate infection which really is chronic testicle pain.

So in 1997 my back went out and I had an MRI done. It showed that my three lower levels were basically spent. So I tried everything for the next 3 years to cure my back. Everything failed including a surgery in 2000 on my L3-4 and L4-5 discs. At that point I went after the VA. Everyone said it's been too long you'll never get service connected for it. I also filed for an increase for the testicle pain and my right and left feet. I had a foot surgeon wanting to operate on me at the time because he said every time I walk I make my back worse. I declined because of the failed back surgery. Anyway they service connected me for my back at 20%. They denied the increases for my feet and gave me a new service connection for my chronic testicular pain and rated me 0%. I appealed and went to a DRO. I then started to have panic and anxiety attacks from the severe pain in my back. So I went after a mental claim secondary to my back. I also had high blood pressure ever since the back pain started. I had a DRO hearing in 2004 and she said oh it sounds like they went out of their way to rate you the lowest possible rating for everything. These 4 items ended up at the BVA.

In between I was service connected for the mental adjustment disorder for 30% secondary to the back, hypertension 0% secondary to the back, and ezema 0%. Since then my adjustment disorder went up to 50% and the HBP and Ezema went to 10%. The BVA pretty much ignored all my evidence inclduing 2 independent medical evaluations for my back and testicle pain. They did open the flood gate and gave me 10% for a neurological condition of my back. Well both my legs are in constant pain and have numbness, etc. So right there they should have rated both legs some %. They also had in their possession all of my treatments, chiropractors, pain clinics, injections, nerve blocks, vicoden, perocet, and Oxycontin. All of this and they never rated me higher than 20 and 10 for the back. Needless to say I wasn't suprised when the remands came back.

Hopefully someone will finally rate me correctly. I am already 80% so I have a chance at getting 100% schedular.

Here was the memo that got my issues remanded without having to go in front of a judge:

The Court issued an order on August 4, 2009, in which it scheduled a pre-briefing conference in the subject appeal for September 1, 2009. The order requires the undersigned to submit a summary of the issues Appellant (“Mr. Doe” or “Veteran”) intends to raise on appeal, along with citations to the relevant authorities and the record. This memorandum responds to the Court’s order.

On March 14, 2008, the Board of Veterans’ Appeals (“Board”) issued a decision denying Mr. Riordan entitlement to an initial rating in excess of 20 percent for a back disability, involving lumbar strain and degenerative disk disease; to a compensable rating for residuals of a fracture, left 3rd metatarsal; to a rating in excess of 10 percent for residuals of a fracture, right 3rd metatarsal; and to a compensable initial rating for a disability manifested by chronic testicular and groin pain. Set forth below is a summary of the Board’s errors we intend to argue to the Court. In sum, we believe Mr. Doe's case should be remanded to the Board for further adjudication and are amenable to a Joint Motion for Remand.

Issue 1: Entitlement to an initial rating in excess of 20 percent for a back disability, involving lumbar strain and degenerative disk disease.

The Secretary’s statutory “duty to assist” requires the secretary to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C. § 5103A. To satisfy this statutory duty, the Secretary must provide an adequate examination if it is necessary to decide the claim. 38 U.S.C. § 5103A(d)(1); see 38 C.F.R. § 3.159© (2008). An adequate medical examination is a “thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Green v. Derwinski, 1 Vet.App. 121, 124 (1991). If an examination report does not contain sufficient detail, the Secretary must “return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2 (2008); see Bowling v. Principi, 15 Vet.App. 1, 12 (2001).

Voluminous evidence of record raised the issue of functional impairment. R. 1362-1475, 1525, 1640-1646, 1656-1660, 1664-1693, and 1722. The Board recognized this issue and cited 38 C.F.R. §§ 4.40 and 4.45 and the seminal case DeLuca v. Brown¸8 Vet. App. 202, 206-07 (1995). R. 7. However, the Board put the cart before the horse—the VA never provided Mr. Doe with an adequate examination that “in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person’s ordinary activity.” 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); see also Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). The VA examinations conducted in October 2000 and September 2004 did not evaluate the effects of Mr. Doe’s back disability upon his ordinary activities. R. 383-385, 1477-1478; Schafrath, 1 Vet. App. at 595 (citing 38 C.F.R. § 4.10). Thus, the Board rushed to its own unsubstantiated medical opinions regarding functional loss due to pain, but no other DeLuca factors, and labeled Mr. Doe’s back disability as moderate. R. 7. “Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing.” Stefl v. Nicholson, 21 Vet. App. 120, 123-124 (2007) (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may only consider independent medical evidence and may not substitute its own medical opinion.)).

Furthermore, in evaluating back disabilities, the VA is required to evaluate neurological manifestations. VA Training Letter 02-04. The Board recognized “DCs 8522 – 8530 [were] potentially applicable” and concluded that the evidence “demonstrate[d] mild neurologic manifestations,” but then admitted the “medical evidence does not specifically state which nerves were affected by the veteran’s low back disability.” R. 11-12. Therefore, the Board again provided its own unsubstantiated medical opinion due to the lack of an adequate VA medical examination to assist the Board in its decision.

Issue 1 and Issue 4: Entitlement to an initial rating in excess of 20 percent for a back disability, involving lumbar strain and degenerative disk disease and to a compensable initial rating for a disability manifested by chronic testicular and groin pain.

In addition to these errors regarding the Board’s evaluation of Mr. Doe’s back, the Board never discussed the private medical opinions Mr. Doe submitted from Dr. Bash. R. 1520-1522, 1738-1740. Dr. Bash provided opinions regarding the neurological manifestations of Mr. Doe’s back disability as well as his chronic testicular and groin pain and the etiology of such. Dr. Bash opined Mr. Doe’s groin and testicular pain originated from the ilio-inguinal nerve—another neurological manifestation of Mr. Doe’s back disability. However, the Board never discussed Dr. Bash’s opinions in its decision. “Fulfillment of the reasons or bases mandate requires the BVA to set forth the precise basis for its decision, to analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant in support of the claim, and to provide a statement of its reasons or bases for rejecting any such evidence.” Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).

Issues 2 and 3: Entitlement to a compensable rating for residuals of a fracture, left 3rd metatarsal and to a rating in excess of 10 percent for residuals of a fracture, right 3rd metatarsal.

To date, the VA has only evaluated Mr. Doe’s bilateral foot condition based upon the diagnostic codes for musculoskeletal foot conditions. R. 16-19. The VA has overlooked the following: On May 15, 2000, Dr. Ali Hashmi diagnosed Mr. Doe with Tarsal Tunnel Syndrome bilateral feet. R. 326. Tarsal Tunnel syndrome is “[a] syndrome characterized by pain and numbness in the sole, caused by entrapment neuropathy of the posterior tibial nerve.” Stedman’s Medical Dictionary, 2001 edition. Dr. Hashmi also described Mr. Doe’s pain as over the medial aspect of the foot radiating down to the toes. R. 326. The Board did not consider evaluating Mr. Doe’s bilateral foot condition under a diagnostic code for this type of neurological condition or consider whether Mr. Doe’s bilateral foot pain could be linked to the neurological manifestations of his back disability. DC 8530 allows up to a 10% rating for an ilio-inguinal nerve disability. Considering that neurological manifestations are part and parcel of a proper evaluation of a back disability, Issues 2 and 3 are inextricably intertwined with Issue 1 and should be remanded to the Board for further adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).



[LarryJ]

And, do not forget, you can also claim "loss of a re-productive organ", which, without me looking it up (you can do that, I'm too lazy) will garner you more % than the Somatoform Disorder #9422.

[carlie]

3 years? Who remanded the claim? I know it took a 2001 appeal of these issues just remanded from the court 5 years to get to the BVA. Then another 2 to get to the court. However, the BVA made a decision within 2 years. 3 years sounds nuts unless your at an RO.

dav,

The BVA remanded to the AMC and the AMC has remanded to the RO --

St.Petersburg RO no less.

Also onSept. 18th I have another hearing set with the BVA Judge that is now over my claim,

the original judge I had,is no longer with the BVA.

carlie

[carlie]

Here was the memo that got my issues remanded without having to go in front of a judge:

The Court issued an order on August 4, 2009, in which it scheduled a pre-briefing conference in the subject appeal for September 1, 2009. The order requires the undersigned to submit a summary of the issues Appellant ("Mr. Doe" or "Veteran") intends to raise on appeal, along with citations to the relevant authorities and the record. This memorandum responds to the Court's order.

On March 14, 2008, the Board of Veterans' Appeals ("Board") issued a decision denying Mr. Riordan entitlement to an initial rating in excess of 20 percent for a back disability, involving lumbar strain and degenerative disk disease; to a compensable rating for residuals of a fracture, left 3rd metatarsal; to a rating in excess of 10 percent for residuals of a fracture, right 3rd metatarsal; and to a compensable initial rating for a disability manifested by chronic testicular and groin pain. Set forth below is a summary of the Board's errors we intend to argue to the Court. In sum, we believe Mr. Doe's case should be remanded to the Board for further adjudication and are amenable to a Joint Motion for Remand.

Issue 1: Entitlement to an initial rating in excess of 20 percent for a back disability, involving lumbar strain and degenerative disk disease.

The Secretary's statutory "duty to assist" requires the secretary to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C. § 5103A. To satisfy this statutory duty, the Secretary must provide an adequate examination if it is necessary to decide the claim. 38 U.S.C. § 5103A(d)(1); see 38 C.F.R. § 3.159© (2008). An adequate medical examination is a "thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet.App. 121, 124 (1991). If an examination report does not contain sufficient detail, the Secretary must "return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2008); see Bowling v. Principi, 15 Vet.App. 1, 12 (2001).

Voluminous evidence of record raised the issue of functional impairment. R. 1362-1475, 1525, 1640-1646, 1656-1660, 1664-1693, and 1722. The Board recognized this issue and cited 38 C.F.R. §§ 4.40 and 4.45 and the seminal case DeLuca v. Brown¸8 Vet. App. 202, 206-07 (1995). R. 7. However, the Board put the cart before the horse—the VA never provided Mr. Doe with an adequate examination that "in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person's ordinary activity." 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); see also Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). The VA examinations conducted in October 2000 and September 2004 did not evaluate the effects of Mr. Doe's back disability upon his ordinary activities. R. 383-385, 1477-1478; Schafrath, 1 Vet. App. at 595 (citing 38 C.F.R. § 4.10). Thus, the Board rushed to its own unsubstantiated medical opinions regarding functional loss due to pain, but no other DeLuca factors, and labeled Mr. Doe's back disability as moderate. R. 7. "Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing." Stefl v. Nicholson, 21 Vet. App. 120, 123-124 (2007) (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may only consider independent medical evidence and may not substitute its own medical opinion.)).

Furthermore, in evaluating back disabilities, the VA is required to evaluate neurological manifestations. VA Training Letter 02-04. The Board recognized "DCs 8522 – 8530 [were] potentially applicable" and concluded that the evidence "demonstrate[d] mild neurologic manifestations," but then admitted the "medical evidence does not specifically state which nerves were affected by the veteran's low back disability." R. 11-12. Therefore, the Board again provided its own unsubstantiated medical opinion due to the lack of an adequate VA medical examination to assist the Board in its decision.

Issue 1 and Issue 4: Entitlement to an initial rating in excess of 20 percent for a back disability, involving lumbar strain and degenerative disk disease and to a compensable initial rating for a disability manifested by chronic testicular and groin pain.

In addition to these errors regarding the Board's evaluation of Mr. Doe's back, the Board never discussed the private medical opinions Mr. Doe submitted from Dr. Bash. R. 1520-1522, 1738-1740. Dr. Bash provided opinions regarding the neurological manifestations of Mr. Doe's back disability as well as his chronic testicular and groin pain and the etiology of such. Dr. Bash opined Mr. Doe's groin and testicular pain originated from the ilio-inguinal nerve—another neurological manifestation of Mr. Doe's back disability. However, the Board never discussed Dr. Bash's opinions in its decision. "Fulfillment of the reasons or bases mandate requires the BVA to set forth the precise basis for its decision, to analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant in support of the claim, and to provide a statement of its reasons or bases for rejecting any such evidence." Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).

Issues 2 and 3: Entitlement to a compensable rating for residuals of a fracture, left 3rd metatarsal and to a rating in excess of 10 percent for residuals of a fracture, right 3rd metatarsal.

To date, the VA has only evaluated Mr. Doe's bilateral foot condition based upon the diagnostic codes for musculoskeletal foot conditions. R. 16-19. The VA has overlooked the following: On May 15, 2000, Dr. Ali Hashmi diagnosed Mr. Doe with Tarsal Tunnel Syndrome bilateral feet. R. 326. Tarsal Tunnel syndrome is "[a] syndrome characterized by pain and numbness in the sole, caused by entrapment neuropathy of the posterior tibial nerve." Stedman's Medical Dictionary, 2001 edition. Dr. Hashmi also described Mr. Doe's pain as over the medial aspect of the foot radiating down to the toes. R. 326. The Board did not consider evaluating Mr. Doe's bilateral foot condition under a diagnostic code for this type of neurological condition or consider whether Mr. Doe's bilateral foot pain could be linked to the neurological manifestations of his back disability. DC 8530 allows up to a 10% rating for an ilio-inguinal nerve disability. Considering that neurological manifestations are part and parcel of a proper evaluation of a back disability, Issues 2 and 3 are inextricably intertwined with Issue 1 and should be remanded to the Board for further adjudication. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).



Looks like more C&P exams will be heading your way.

jmho,

carlie

[dav_marine72]

Yes I claimed loss of a special reproductive organ already at the RO for erectile dysfunction based on my back. I'm sure they will send me to new exams.

The good thing is that I have a claim for TDIU at the regional office outstanding and I had a recent back exam. They used to always rate me 20% because I could bend. On the latest exam I could only do 0-0, 0-10, 0-10, 0-0. I also have been prescribed a cane by my surgeon and told I can't lift anything, leave the house without assistance, take public transportation, sit, stand, or walk more than 40 minutes per an 8 hour day for the next 1-2 years.

I had another civilian back specialist do a low level back exam. He measured my leg muscles and four groups were not symmetric showing atrophy. He also did the reflex test which I pass with the VA because they do one hit. He did one hit it worked then every hit after it decreased until hit 5 when the reflexes went dead. That was the norm on almost every reflex. He mapped it all back over to my fused L3-S1 nerve roots. He also said I needed 1-2 years of significant rehab and that I was significantly impaired. That even with my 3 level fusion surgery I have multi-level lumbar intervertbral disc syndrome conditions with clear cut neuropathy changes of pain, significant lower extremity muscle weakness which he diagnosed first in August 2007 and there have been no changes on this exam on May 26, 2009.

Continuing monthly medical records from my pain clinic I have been at since 2006, which show I am on 3 30mg Oxycodones and 3 40mg Oxycontins per day.

I had my VA psychiatrist say I shouldn't be working based on my pain, all the drugs I am on, and my problems remembering and with authority.

The VA mental examiner said he couldn't say that my mental problem made me unemployable alone. however, my back pain combined with my anxiety / depressive symptoms and substance dependence when viewed in total, are the cause of my significant impairment.

My civilian psychotherapist said "I believe his disabilities have resulted in a significant impairment on his ability to hold a job. He frequently spoke of how difficult and frustrating it was to function effectively at his job while in pain. In addition, he has had to manage acute anxiety and guilt because of the significant amount of time he has been out sick trying to manage his pain. Moreover, the stress of trying to hold a job and balance the responsibilities of his home life, while in acute pain, has been a source of great anxiety and stress."

None of this evidence has been viewed by anyone for the purposes of rating my back. It's only been viewed for my pending TDIU claim.