Old Vet - New To The Va System Needs Advise

[JHawks]

WOW, where to begin. I was discharged from the USAF in 1978 (long time ago) after a Medical Board with 6 years in-service. I was given a rate 0f 20% at that time and moved on with my life even though I didn't want to be discharged. The reason for the Medical Board was a massive fracture to my left ankle that required 2 surgeries while on active duty. Now I am 59 years old and beginning to realize I have screwed up by not pushing for a higher rate until now. I never realized there were forums like this until after I filed for an increase in May of 2009. I did receive an higher rating but I appealed it. My current combined rating is 40%. I appealed due to having a mal-union and having to wear a brace. After reading these forums I discovered that 40% is the highest rating allowed for an ankle. So, my appeal is obviously a waste of time for me and the VA. Now to my situation..... Like I said above, I didn't know about these forums. I have learned so much from everyone. I didn't know about secondary claims at all. Due to my ankle and wearing a brace (instead of having a bone fusion) my knees hurt all the time and my right ankle is also in pain as well as the right achilies (sp) tendon from shifting my wight. I have also gained a whole bunch of weight since my physical activities are severely limited and I get little to no exercise. With that comes sleep apnea and the need for me to use a machine to breath while sleeping. Would someone please take the time to give me some guidance and what I should do? I don't want the VA to think I am trying to "milk the cow" with trying to claim all this at one time. Am I crazy to think they would consider these issues in my health as secondary? I would just like an honest opinion. I am new to all of this. Thanks

[free_spirit_etc]

Old Vet needing advice,

Thank you for your service!

Another thing you might want to consider is doing some research of BVA decisions, and how they treat weight gain, secondary conditions, sleep apnea, etc.

I would recommend just checking out some decisions to notice the patterns. Don't look so much for that one case that was granted, or that one case that was denied - but what was the pattern that you noticed in the decisions of how they reached whatever conclusions they did.

I certainly didn't do enough research to determine any pattern yet - but just typing in weight gain secondary - I found these cases interesting:

This is interesting where they discuss "proximate cause"

http://www4.va.gov/vetapp09/files3/0917744.txt

"The Board acknowledges that there is some indication in the

record that excessive body weight is a contributing factor,

and that the Veteran reports weight gain secondary to an

inability to stay active due to back problems. See, e.g., VA

History and Physical Note dated May 7, 2002 (recommended that

Veteran lose weight). However, any relationship between the

Veteran's service-connected back disability and obstructive

sleep apnea, including aggravation due to weight gain, is

tenuous and does not show that his back disability is the

proximate cause of his sleep apnea or the proximate cause of

any aggravation of such disease. See 38 C.F.R. § 3.310. See

also Dorland's Illustrated Medical Dictionary, 1530 (30th ed.

2003) (proximate is defined as the immediate or nearest). As

such, service connection is not warranted under such theory

of entitlement."

That was surprising to me, because I thought they would develop the chain a bit further back. But here they seem to focus just on the "proximate cause" part - saying it has to be the closest or nearest. Of course, that could be because he didn't have strong medical evidence tying up links in the chain.

Another one was:

http://www4.va.gov/vetapp09/files3/0925552.txt

"Although the medical evidence of record establishes an

indirect link between the service-connected PTSD and weight

gain, a separate grant of service connection for weight

gain/loss on a secondary basis is not warranted, as there is

no indication that the weight gain is a disability in and of

itself. Moreover, according to 38 C.F.R. § 3.310(a), when

service connection is established for a secondary condition,

the secondary condition shall be considered a part of the

original condition; and, significantly, the Veteran's

service-connected PTSD is already rated as 100 percent

disabling. Thus, inclusion of weight gain as a symptom of

the service-connected PTSD, would not result in a higher

disability rating because the Veteran is already in receipt

of the maximum allowable scheduler rating for that

disability.

Moreover, the medical evidence of record has never shown that

the Veteran has a separately ratable disability manifested by

weight gain/loss and the symptom of weight gain/loss has been

attributed to a known diagnosis, service connection for a

disability manifested by weight gain is not warranted."

The interesting part to me is the part where though they acknowledge an indirect link, with the weight gain being attributable to the meds taken for his SC PTSD, they say the secondary condition is considered part of the original condition, and that he was already rated at 100% for the original condition, and thus had already received a maximum rating for that disability. I am not sure if they would have rated it separately if the weight gain was, in and of itself, disabling - or resulted in other disabling conditions.

I just kind of skimmed a few. But I think you might need a VERY strong IMO to connect the sleep apnea. However, they do seem to acknowledge weight gain as being attributable to treatment meds and sedentary lifestyle from the SC disability.

I know I read several cases quite some time ago that were successful in getting secondary connections for back problems, other leg besides the injured one, etc. from injury to one leg.

It doesn't take a rocket scientist to understand that a disabling condition in one leg often does effect the other leg, back, etc. especially over time. It changes your gait, your balance, and everything.

Anyway - you might want to check out the BVA site. http://www4.va.gov/vbs/bva/

and search some of the decisions http://www.index.va.gov/search/va/bva.html and see what patterns you find for some of your questions.

I wish you much luck!

Free

Edited December 28, 2009 by free_spirit_etc

[free_spirit_etc]

Ah.. here is one for the other leg:

http://www.index.va.gov/search/va/bva.html

"The Veteran underwent a VA examination for his right ankle in

October 2005. The examiner diagnosed mild arthritis of the

right ankle by use of radiographs from February 2005. The

examiner opined that it was certainly reasonable to believe

that the Veteran's right ankle pain has been exacerbated by

previous injury to his left ankle. The examiner qualifies

the opinion by adding that he cannot say definitively that

the problems with the right leg are due to the problems with

the left leg without resorting to mere speculation. The

examiner's opinion is enough to grant service connection on a

secondary basis. As the Veteran argues and the examiner

notes, the Veteran has been limping on his left ankle for 30

years, which causes pain to the right ankle. There is no

medical opinion contradicting this or offering any

alternative reason for the Veteran's right ankle problems.

Thus, the Veteran must be given the benefit of the doubt, and

the claim is allowed."

[JHawks]

Ah.. here is one for the other leg:

http://www.index.va.gov/search/va/bva.html

"The Veteran underwent a VA examination for his right ankle in

October 2005. The examiner diagnosed mild arthritis of the

right ankle by use of radiographs from February 2005. The

examiner opined that it was certainly reasonable to believe

that the Veteran's right ankle pain has been exacerbated by

previous injury to his left ankle. The examiner qualifies

the opinion by adding that he cannot say definitively that

the problems with the right leg are due to the problems with

the left leg without resorting to mere speculation. The

examiner's opinion is enough to grant service connection on a

secondary basis. As the Veteran argues and the examiner

notes, the Veteran has been limping on his left ankle for 30

years, which causes pain to the right ankle. There is no

medical opinion contradicting this or offering any

alternative reason for the Veteran's right ankle problems.

Thus, the Veteran must be given the benefit of the doubt, and

the claim is allowed."

This ruling is exactly what I am going through with my right ankle. My left is almost useless and all my weight has been shifted to my right x 30+ years. Thanks for posting it