hypertension P&t Appeal

[dav_marine72]

Hi Everyone,

I am currently appealing to try and get P&T. I know the best evidence is to have a doc say you can’t work again. I don’t have that exact statement but I am looking for opinions to see how strong my evidence is.

I am TDIU 100% from March 2009. I am 80% scheduler, which should either end up at 90 or 100 within a year or two from appeals.

I am 40% back / 10% lower extremity weakness (both jointly remanded from the CAVC on 12-09 from 2000), 50% mental (on appeal), 30% asthma, 10% right foot injury (jointly remanded from the CAVC on 12-09 from 2000), 0% left foot injury (jointly remanded from the CAVC on 12-09 from 2000), 0% chronic right testicle pain (jointly remanded from the CAVC on 12-09 from 2000), 0% hypertension (On appeal from 2002), 0% eczema (On appeal from 2002), 0% residuals of an appendectomy.

The TDIU even though the VARO concludes it’s from multiple service connections based on a statement from a mental examiner is from my back. Both feet were broken in service. My back appeared in 1997. L3-S1 showed up as spent on a 97 MRI. I had my first surgery in 2000 an L3-4 and L4-5 hemi-discectomy and hemi-laminectomy. I was service connected in 2000 for my back at 20%. From 2000 to 2006 I went to chiropractors, acupuncturists, holistic healers, and the VA. It got so bad in 2006 I went to a civilian pain center. It ended up that in addition to the 3 discs being spent I had scar tissue from the 2000 surgery that was entrapping the nerve roots at each level. From 2007 – 2009 I was still working full time in severe pain. I took opiates 3 times a day in addition to ativan, buspar, and Zoloft for my mental.

In March 2009 I had an L3-S1 fusion and ended up coming out with my pain increased by 2. I also started having more numbness and weakness in my legs resulting in many falls. I basically am only a little comfortable in my bed. I have been on oxycodone and oxycontin since 2008. Prior to that I was on vicodin and perecet. In a September 16th decision by the VARO I was awarded temp 100% for the surgery, etc., TDIU, SMC, and TDIU. This decision was never mailed to me but the VARO made me a copy. I received a September 18th decision with temp 100%, temp SMC, TDIU, and no P&T. So after review they yanked my P&T and SMC. I appealed both and never received an anser about the P&T but was told that I didn’t qualify for SMC (s) because my TDIU was based on multiple service connections. Days later I was turned done for A&A based on non-service connected disabilities that I don’t have. I am appealing everything and here is my evidence:

1. A denial letter from VA voc rehab stating the Veteran was denied chapter 31 benefits based on being currently unable to work competitively and an achievement of a vocational goal not being feasible.

2. The VA’s first rating awarding me P&T. I am asking for resolution of the benefit of the doubt based on the fact the rater who had intimate knowledge with my case awarded my P&T and then a review of VA employees who could not have had the detailed knowledge the rater did took it away.

3. A social security denial stating I could not work in the IT Security field anymore. I had 14 years in that field after the Marines. Even though all I did was sit at a desk or stand in front of computers I was told I could not do this anymore. They did however state I could do something else. This is on appeal and I have my hearing in July. So hopefully I’ll be able to add social security benefits by the time the appeal is decided.

4. Two social security forms (physical) filled out by my surgeon and civilian PCP basically saying the same thing. No driving, no lifting, no leaving the house alone, no walking over rough surface, need for a cane, no sitting, no standing.

5. A social security form (mental) stating my condition has worsens since first starting to see me in 2002. I have major depression and generalized anxiety disorder. I have a serious problem with using appropriate coping skills to meet ordinary demands of a work environment, handling frustration appropriately, and performing work activity on a sustained basis (8 hrs a day, 5 days a week), an obvious problem with caring for physical needs, asking questions or requesting assistance, and getting along with others without distracting them or exhibiting behavioral extremes. They were all noted as daily issues. He also wrote in comments that I was significantly physically disabled from my back. This was filled out by my regular VA psychiatrist.

6. A letter from current therapist stating he had been counseling me for issues related to severe back pain, leg pain, panic and hypertensive attacks related to his military service. He stated he believed that my disabilities have resulted in significant impairment on his abilities to hold a job. He stated I frequently spoke about how 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 home life, while in acute pain, has been a source of great anxiety and stress for me. I am aware the patient is on high doses of narcotics, anti-depressants, and tranquilizers and yet his symptoms continue to be severe. While I am not a physician I believe this is likely to an increasing tolerance to those medications. The PT has related to me how very frustrating it has been to struggle at work, and as a husband and father. This frustration shows up as depressive episodes and angry outburst that put a strain on him and those relationships. The therapist has a PH.D.

7. The medical records and history of a back condition for the last 13 years with 2 failed surgeries.

8. A recent aid and attendance exam at the VA. The examiner concluded that the Veteran was in need of 24/7 supervision from his wife because of the dangers of his environment and that his spine aliment has mod/severe functional impairment as a result of decreased range of motion and subjective complaints.

9. A 2008 VA mental exam stating the Veteran describes a worsening of symptoms compared to his presentation at his last exam. He continues to experience anxiety and panic symptoms and some depressive symptoms, which have been already causally linked to his service connected back condition. Further confidence in diagnostic formulation at this time is limited by the Veteran’s chronic, heavy use of prescription narcotics, tranquilizers, and alcohol. It is more likely than not that chronic pain, his underlying psychiatric condition, and medication effects are all contributing to increased irritability and impaired judgment. In total the Veteran is suffering from mild to moderate impairment in vocational function and significant impairment in social function.

10. A 2009 mental examiner states it is as least as likely as not that your mental condition alone keeps you from working, but when combined with your anxiety/depressive symptoms and viewed in whole, you suffer major impairment.

11. A May 2009 letter from my employer stating I was being fired because I could not come back to work. They understood it was my back and because they thought it was unlikely I would be able to return in the unseen future.

12. A 2006 letter from an employer stating that during a 1 year six month contract I missed 12 weeks of work.

I am also in the ILP of voc rehab is that is worth anything.

[Berta]

never received an anser about the P&T but was told that I didn’t qualify for SMC (s) because my TDIU was based on multiple service connections."

Whip out Bradley V Peake on that one and send it to them.

"Days later I was turned done for A&A based on non-service connected disabilities that I don’t have. I am appealing everything and here is my evidence:"

"1. A denial letter from VA voc rehab stating the Veteran was denied chapter 31 benefits based on being currently unable to work competitively and an achievement of a vocational goal not being feasible."

Did the VA Voc Rehab person say unfeasible solely due to SC disabilities?

I read this over carefully-you have excellent evidence here.

I sure hope they read it ALL.

As far as I know the VA hasn't come up with cures yet for any of your conditions.In my opinion that means you deserve P & T.

Did they define what the NSC disabilities you dont have- were?

[dav_marine72]

Yeah I through out Bradley vs. Peake. I think I have enough evidence including my A&A exam to get A&A and SMC (L). I'm thinking I'll have a hearing with a DRO just to lay out all my evidence and ask them about the non-service connected aliments. I truly believe it will take the BVA if not higher to get this resolved.

Here is what they wrote for the non-service connections:

Active problems list includes several medical conditions for which you are seen and treated (incudes both service connected and non-service connected), which will not be individually listed here.

Awfully nice of them not to include the issues. They go on:

You have been seen and treated for your spinal condition (service-connected), as well as impaitment involving your lower extremity weakness (you are service connected for residuals of a fracture of your right and left 3rd metatarsals and weakness of the right lower extremity), however, you are not service connected for your right knee, left ankle sprain, fracture, left foot, and neurological condition of the bilateral legs.

First off I have no problem or medical evidence or diagnosis of ever being treated for a knee condition. I was seen in service for this and orginally filed for service connection in 95 but got shot down and since I had no active problems I dropped it. The left ankle sprain occured in service and again I filed in 95 because I was told to file for everything. I dropped the claim after it was denied because I had no problem with it. I did recently tell VA podiatry that I have had ankle sprains over the years because of my feet. My feet which I had no problems or diagnoses prior to service yet when I came out I had Pes Cavus and Equinus. Both of these issues have become severe and have been documented since 1996 less than a year after leaving the Marines. I fractured my right foot and got a stress fracture of the left in service. They service connected both in 1996. I don't know what fracture, left foot means. However, I am serviced connected for residuals of a stress fracture of the left foot. As far as the neurological condition of the bilateral legs goes that is from my back. I have a well documented exam in 2007 and 2009 stating all the muscle groups in my lower extremities are unsymmetrical, I have muscle wasting and atrophy and he tied it all back to my L3-S1 discs respectively. I also happen to be service connected for lower extermity weakness in both legs LOL. See my BVA case where they awarded it to my second to my back.

http://www4.va.gov/vetapp08/files1/0808584.txt

So all the non-service connected disabilities are a bunch of crap. The only thing I might need to do is go after them for service connection for Pes Cavus and ankle equinus. Both showed in 1996 and prior to going to boot camp in 1991 I had no conditions in my feet.

They also finished off the denial of A&A by clouding it with the so called non-service connections:

You do not meet the schedular requirement for consideration of this benefit, as you are not rated service-connected disabled at 100%. (First off you don't even need to have 100% rating for A&A. I'm sure they don't give it out without it but you don't need it per law. The worst part is I am TDIU 100%!)

While there is evidence that you currently require assistance from another person (I.E. your wife) to help you perform some daily activities of living this is both due to service connected and non-service connected disabilities (lower extremity weakness problems, some of which are service related and some that are not, as previously described.) Since your level of impairment requiring aid and attendence is not soley attributed to your service connected conditions, when your case is considered as a whole, your case is not being referred for extra-schedular consideration of entitlement to this benefit.

So they didn't see I was 100% (TDIU) and they didn't read my service connection from the BVA properly. Once again I must do the job for the VARO. I don't even see where they could have screwed up since right in the rating it says bilateral straight leg raises. All my VA records show service connection for lower extremity weakness not lower extremity weakness on the right side. The neurological condition is on appeal too. I don't even want to get started on that.

[dav_marine72]

To answer your question about the examiner quoting service connections for my A&A in her diagnosis she only states chronic pain secondary to my failed back fusion surgery, talks about the side effects from the opiates I take for only my back, talks about being housebound because of chronic pain and panic attacks (service connected), and then states I have mod/severe functional impairment of my back because of reduced range of motion and subjective complaints. No mention of non service connected issues...............

[john999]

I would get a medical opinion to refute the NSC crap and to say you need A&A for basic chores of living. MD opinions carry weight where the vet's pointing out that you were never treated for the knee carrys no weight.