Vet Needs Help With Bva Case

[Charleese]

Hi all,

For the past 3 days I have been looking through BVA cases for a higher rating of 40% for a sc knee injury. The Vet that I am helping has 60% rating for his sc knee injury and was fitted for a hinged knee brace by VA, that he wears for stabillity, etc. The VA is saying that his hinged brace is not required and he does not have nonunion and loose motion. The decision to deny him 40% states that: "A higher evaluation of 40 percent is not warranted unless a brace is required because of nonunion and loose motion. As the evidencve does not show nonunion the tibia and fibula with loose motion requiring a brace; or,knee extension that is limited to 30 degrees, or ankylosis of the knee in flexion between 10 and 20 degrees, assignment of a higher evaluation is not warranted at this time."

I have looked through BVA cases and found a number of cases where vets have been granted the 40% rating for a sc ankle injury, some with an ankle brace and some without an ankle brace. Cases that were granted were because of chronic pain, stiffness,and instabillity. This Vet has chronic pain, stiffness, instabillity, etc.

However I can't seem to find any cases pertaining to the granting of knee injury. I don't know whether I am using the right words or not to bring up such a case.

My questions: Could someone please look up a BVA case(s) pertaining to the granting of a knee injury with a brace or without a brace and post the case here at hadit, so that I can help this vet get a 40% rating. Also, if there are no BVA cases found granting without knee brace required, should I use an Ankle case in its place stating that this is a similar case.

Your replies to the above is greatly appreciated.

[Berta]

This vet had 20, probably wanted 40 and got 30%

In order to qualify for a higher rating there must be

nonunion of the tibia with loose motion. 38 C.F.R. Part 4,

Code 5262. The knee X-ray revealed the staple without any

mention of nonhealing. Nonunion was not reported on this

X-ray.

ORDER

A 30 percent evaluation for post-traumatic osteoarthritis of

the left knee with postoperative residuals of meniscectomy

and tibial osteotomy is granted, subject to the law and

regulations governing the award of monetary benefits.

http://www4.va.gov/vetapp92/files2/9214785.txt

Have you tried to access the BVA decisions by using the diagnostic code he has for this in their search browser.

BVA decisions can be a great tool to get an understanding of the way the BVA lawyers think ( differently from RO raters)regarding many disabilities but the VA will say that -of a BVA decision is used in support of a claim-that the BVA decision only applies to the specific veteran it was rendered for.

I noticed too in BVA decisions that the evidence is not always expanded on at all. I wish it was- because some decisions there do not reflect all of the actual medical evidence that supported the claim.

If he has documented medical evidence of the whole criteria that warrants a higher rating, then he should be able to obtain the higher rating.

I don't understand the part about his 60% rating.

Are you sure they have addressed documentation of the brace that VA fitted for him?

[Charleese]

Berta,

The 60% rating is for his right knee 30% recurrent subluxation, and 30% residuals of fracture right tibial tubercle with osteoarthric changes and chronic chondromalacia of the knee.

Yes I tried 5262 and all I come up with is the ankle.

It is well documented in VA medical records that he wears a hinged knee brace. However, they keep denying him saying brace was not required and there is no nonunion and loose motion. He has sent them a copy of the initial request for brace in 2007 as well as VA doctor updating this request in 2008 stating that this brace is required. VA failed to acknowledge this evidence. He intends to send it again.

Do you think he can use the ankle case in place of his knee injury.

Thanks!

[Berta]

"He has sent them a copy of the initial request for brace in 2007 as well as VA doctor updating this request in 2008 stating that this brace is required. VA failed to acknowledge this evidence. He intends to send it again."

Good idea to send it in again-

They would probably ignore any BVA cases too-but send the case if you think it will help and tell them why they should consider the BVA case.