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

[Berta]

Yes- it is an aggravation of pre -existing claim for sure.

Larry is RIGHT as always!

"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"

That right there (whether he documented that or not but I hope he did) is the basis for a Section 1151 claim too!!!!!

Section 1151 38 USC

1. clinical evidence of VA negligence and/or malpractice

2, documented disbility directly due to medicasl error, or omision of proper medical act'

3. equals Section 1151 award of compensation under 1151 determined as to the level of disabilty the VA incurred by thier piss poor medical care.

[bballr4567]

Thanks for the help!

I read over my Drs note from yesterday and he did state that this is more likely than not an aggravation of preexisting condition seeing how Ive never ever been seen about back pain in my life. He also stated that this has been shown on Xray results going back to Nov 2007 and was just skipped over as a possible diagnosis.

Hopefully, the decision will be what I deserve and what I feel is right.

However, after going through all this, I cant help but notice how OLD the VA rating guidelines are. I can have full ROM but pain throughout it and its not big deal but if I didnt have pain and had limited ROM then Im due something.

Here is to another year of wait on that issue.

Also, the VSO that I talked to today said that the Indianapolis office was taking 4-6 months for convalescent pay. How the hell does that happen? Just boggles the mind.

[bballr4567]

Well, I called the VSO to see if the time to pay the convalescent claims have been shortened and she said that its been knocked down to 3 months. Mine was put in on June 16th so I still have a wait to go. Just insane that its taking this long to process.

[jbasser]

I hope it goes well for you. I know another Vet on Here that went through Indy.

He had a real tough time until we Kicked them in the groin.

One Vet told me dealing with Indy was like trying to french Kiss a Copperhead.

Hang in there. Even Indy will eventually get it right.

J

[bballr4567]

Got a call today from Winston-Salem. Yes, Labor Day!!

It was an agent calling to confirm if me and my wife were still married as she is being added to my claim and for the back pay. I was a little confused and she then explained it to me a little.

Yes, I got rated for my knee. She said that just because I had surgery that they rated it instantly and will be back paying to my ETS date PLUS convalescent pay for 2.5 months. I asked what the percentage was and she said that she couldnt tell me because they havent figured it out with my earlier 10% yet.

I then asked about my back and she said that it hasnt been rated YET but its getting decided right now.

Also, she told me that everything the VA does with my record is electronic. They dont need to have my actual file on hand as it gets scanned in when it first comes in. Was she blowing smoke up my a$$?

[Chuck75]

Was she blowing smoke--

Likely not, but It's quite possible that all the "C" file records did not make it to the electronic record. I recently found this out when reviewing a complex claim with multiple NODs, appeals, DRO reviews, etc.

In this case, records known to be in the "C" file prior to 2006 were missing.

Records of defective and CUEable denials were missing.

Favorable Medical records were missing, such as VA doctor's reports/opinions that certain items were service connected (Not just more likely than not, etc.)

The original file in question runs to almost a thousand paper pages.

Got a call today from Winston-Salem. Yes, Labor Day!!

It was an agent calling to confirm if me and my wife were still married as she is being added to my claim and for the back pay. I was a little confused and she then explained it to me a little.

Yes, I got rated for my knee. She said that just because I had surgery that they rated it instantly and will be back paying to my ETS date PLUS convalescent pay for 2.5 months. I asked what the percentage was and she said that she couldnt tell me because they havent figured it out with my earlier 10% yet.

I then asked about my back and she said that it hasnt been rated YET but its getting decided right now.

Also, she told me that everything the VA does with my record is electronic. They dont need to have my actual file on hand as it gets scanned in when it first comes in. Was she blowing smoke up my a$?