Filing An Appeal But Have Some Questions

[bballr4567]

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This was a BDD claim that took almost 120 days. I ETS'd 29 May 09 and had all my exams and paperwork turned in 12 Mar 09.

Please ignore the left knee. This isnt a problem anymore but was included in my claim as it was a problem during active duty.

My problem is my lumbar spine and right knee.

Start with the knee. The part that worries me is that the VA predischarge doctor flat out lied. I have pain throughout my whole ROM. I get random swelling at least 2 weeks out of the month. I have weakness when climbing stairs and have to use a hand rail. Also, my Xray results were NOT normal. As long as 3 years ago Ive been getting abnormal results with edema and bony abnormalities. Recently, two weeks ago, I finally received a CT scan of my knee and it confirmed that I have arthritis consistent with a 55-60 y/o.

This is all documented through out my active duty time going all the way back to when the first injury occurred in basic.

My back is the worst though. Again, the predischarge doctor lied about the no pain, no spasms, no tenderness and so on. I certainly have all 3 of those and more as it has been documented since the original injury happened in 2006. Xray reports were NOT normal showing lumbarization of L5-S1 after I redeployed from Iraq. I have since had an MRI that showed a circumfrential bulging disc (not the minimal bulging that the VA said in the letter, I have NO IDEA where they got that) at L5. This has caused intense pain day to day and severe stiffness at night and morning. I also get random right leg spasms throughout the day. It also makes it difficult to sit down or stand for too long. Im constantly having to move to stay "comfortable". As it says, I have nerve problems on my right leg as a result. It started out small and has grown in severity and size over the past 3 years. The EMG technician reported that I do have nerve damage but the EMG is the wrong test for me as it only test if the nerve is there and intact. My problem is at my lumbar which is difficult to test.

Im planning on appealing this as its completely wrong. Im barely active (I walk with my wife) and this injury has basically limited my standards of living a lot. My worry is about the predischarge doctor and the fact that HE lied on his reports. There are YEARS of other medical sources claiming the exact opposite of this one doctor. Will this mess me up on the appeal?

Also, what exactly should I appeal on? Should I do my nerve issue as a primary condition rather than being secondary to the lumbar?

Sorry for the long post but Im at a loss here and how the VA came up with this decision. Thanks in advance for all the help!

Josh

[bballr4567]

Well, seeing how its been 6 months I should update this.

Im undergoing surgery for my right knee. I had an MRI done in Jan 2010 that showed I had medial plica syndrome and possible lateral syndrome. I have arthroscopic knee surgery on the 21 May to correct this issue. My ortho doc stated that had an MRI been done after the last complaint that the issue would of been seen and addressed with physical therapy and most likely gone away. However, seeing how it had not been addressed correctly that surgical intervention is needed due to the extent of damage.

I have an appt on May 21st with my ortho to address my back. Having ETS'd the VA wanted to do the whole range of exams AGAIN so Im finally getting back to an ortho. I have to get him to write a NEXUS letter due to the VA finding my back condition NOT chronic due to no diagnosis. I will push my ortho to actually diagnose my back and to have him state that it is 100% service connected.

Is there anything else that I need to do? This is very exhausting to fight the VA.

Also, is there a place where I can find a VSO to help me with my claim?

Thanks in advance,

Josh

[Berta]

If the ortho is going to write an IMO =he/she needs to follow the IMO criteria in the forum here .

"I will push my ortho to actually diagnose my back and to have him state that it is 100% service connected." Good luck on that- any doctor can only rely on medical rationale that is based on documented fact.

You did indicate your SMRs will support the claim- the ortho doc will need to review them and then he can make a strong nexus opinion.

He will need to make a statement on chronicity too- and make sure the VA has all treatment and medications records as they can prove chronicity.

Your state probably has a Veterans service division or county veterans agency- the VA web site also lists all the VSO orgs which havce vet reps.

"Should I do my nerve issue as a primary condition rather than being secondary to the lumbar? "

What is the diagnosis of the nerve issue?

It could possibly be claimed as both primary and secondary-hard to say here- if they award for it they will choose only one way to award.

It depends on the diagnosis and if there is a secondary link to a primary SCD condition.

[bballr4567]

I will be printing out the example and bringing it up to him.

I had no back issues when entering the service and have ALL documentation going back to the originl injury while in service. The issue is that VA said that because it was no diagnosed as a chronic issue that it is not service connected.

Is there a form I can give him so he can follow the example for the chronicity of my back issue? Its a EVERY day issue that never goes away. It bothers me 100% of time

[john999]

The main thing is to get the back service connected. You can work on the percentage in time. If you get even 10% that opens the door to many other potential secondary claims. Depression and chronic pain disorder for instance. Work on service connection first and then worry about percentage and potential retro next. Service connection is the lever that you can use to pry open all doors at the VA. I started at 10% 40 years ago and now I am TDIU for the last 9 years. It all started with a 10% rating which I am working on right now to have a retro increase.

[bballr4567]

Figured I would update this again.

Ive since had knee surgery and it was successful. Recovery is coming along but its only been 3 weeks. I talked to a OIF/OEF social worker today while at the VA clinic and she informed me of temporary disability rating increase for my knee. I had no clue that existed and it would be great to get it. I talked to my Drs. nurse and she said that he has wrote letters in favor of that seeing how I wont be able to work for 3 months.

Second, Ive finally been diagnosed with my back. He said I had a form of spina bifida and was pretty angry that it was not picked up earlier during medical testing while in active service AND while going through the VA medical system. He told me that the injury to my back while in service aggravated the scar tissue my body had formed around the areas where my vertebra had not formed correctly and was sure that the injury was tied to my service. I asked him to write a NEXUS letter and he declined at this time due to the overwhelming medical evidence and informed me that his medical diagnosis will say that although it was a congenital defect that due to it not effecting my daily life until the injury it will not be a problem to get it service connected.

I have made an appt with a VSO in my city and will be putting my appeals through him. Hopefully, I get what I rightfully deserve rather than this 0% and non-service connected BS.

[LarryJ]

You will definitely want to do your current spinal disability as an "aggravation, in service, of a condition existing prior to military service.....". And, seeing as how this pre-existing condition had not affected you in any way prior to your entrance in service, then they will not have a "reference point" of the percentage of disability existing prior to service, so any percentage of disability that they come up with NOW, will be the total disability from which you should be compensated. In other words, they don't know how much you were disabled BEFORE service, so they will have to comp you for the whole nine yards.