Discharged 35-4 With Medical Severence But Va Denied Claim

[BasehorVet]

Hi all,

I was discharged by the USAF in 1985 under AFR 35-4, with the narrative reason for separation being "Discharge by reason of physical disability with entitlement to severance pay". The findings by the USAF PEB was the member is unfit because of physical disability and the disability is permanent. I was given a 10% rating by the board for Facet Syndrome, lumbar spine with low back pain with a VA diagnostic code number of 5299-5295.

I applied for my VA benefits right after returning home after my separation, went through a quick medical evaluation at the local VA hospital and was denied my claim because the diagnosed back condition was of a constitutional or development nature. Being young and dumb I did not appeal the decision.

On a recent VA response I received they described the application based upon spondylolysis, L1 left. I was discharged for Facet Syndrome but had conflicting medical evaluations in the USAF where depending on which doctor I saw, they diagnosed it as spondylolysis, spondylotheisis or Facet Syndrome.

25 years later I have reopened my claim using new and material evidence, I also tried in 1990 and I thought also in 1999 but they do not show that request in their records nor do I have any documents from then. In this latest round I have been using the services of the American Legion at the local VA hospital and I just had a medical evaluation of my spine (no results yet) and I have been scheduled for a MRI in 2 weeks. First time that I actually had the chance to have an evaluation in 25 years and things have really went downhill over the last 25 years, bowels and bladder not working right, cannot work due to the episodes that put me into bed for a few days at a time and I waddle like a duck when my hips start burning after walking short distances.

I have copies of all my old military records, made before the discharge. I noticed that the separation code is wrong on my DD214, it is listed as JFL and should have been JFL1.

JFL = Physical Disability - Severance pay or juvenile offender

JFL1 = Physical Disability with severance pay USAF

The VA did not notify me of my qualification for medical care through the VA because of the status of injured in the line of duty until I went to the VA hospital in 1999 because of a sever pain episode. I thought I would have to pay and I had no private insurance at that time, greatly surprised to hear that my care was covered with only a prescription co-pay. I also learned that if the correct code would have been on my 214 that I would have qualified for 6 months worth of exchange privileges.

On my DD214 there was also another error where the wrong SS# was entered on it and I applied for a DD215 to correct the SS# error but was not aware of the separation code error (there was no Internet back then).

Could the separation code error be the reason why I have all these problems over the years? Would this be a Clear Unmistakable Error (CUE)?

Any help or ideas are appreciated.

Victor

[Berta]

In the past denial did they comment on or even consider at all these records?

"I submitted copies from my medical records that I have, that show all the Doctor evaluations, physical profiles and physical therapy that I recieved while on active duty over a two year period that led up to my discharge in 1985, I had been on physical profiles during that entire time that specified that I could sit or stand for an extended period and that I could not pull or push or lift anything greater then 15 lbs."

If this was not a pre existing condition-I dont see how they could have denied- and even it was rpre-existing- your service could have aggravated it.

Do you have a vet rep?

If so has the vet rep seen potential basis for CUE?

When you re-opened the claim could you send them everything they asked for in the VCAA letter they sent to you?

"I have an in the line of duty determination (AFR 35-67) document."

"I ended up being diagnosed as clinically depressed and was place on total disability for 90 days because of the pain that I had, during this time the company fired me and I filed for workman's compensation."

Did you claim the depression as secondary to the back disability?

[BasehorVet]

I am guessing that they did not review my medical records for the original request for compensation. In the first denial statement they state that "We have carefully considered your reopened claim for service connection of hearing loss and back disability", this was the first and not a reopened claim. I am thinking that the error may exist with the fact that my DD214 was in error and reported my social security number wrong, I caught this during out-processing and submitted a request for a DD215 that day, while still in the Air Force. Again, at that time I was unaware of the wrong Separation Code on the DD215, it has JFL instead of the correct code of JFL1, I have now requested a change to the DD214 using a form called 149. On my 214 there is a block checked and initialed that says member requests copy 6 sent to KS Dir of vet affairs. So maybe they started the process using the DD214 with the wrong SS# but then received the DD215 correcting the SS# a month later, causing them to close the original with no notification and reopen a new one that has the denial. I did try to reopen the claim in 1999 asking if they used the correct SS# and they replied that they had done so.

In this last letter they show as evidence:

Rating decision and the evidence cited in the decision dated July 22, 1985

Notification letter dated July 29 1985 (the one in my possession is dated July 28)

Rating decision and the evidence cited for the decision date November 6 1990 (I opened it asking if they used the wrong SS# and was notified that they used the right SS# and denied the request)

Notification letter dated November 16, 1990

VA claim form 21-4138, statement in support of claim received July 28 2009

Copy of Line of Duty determination, received July 28 2009

Copy of PEB Board findings received July 28 2009 (findings were Disability is Permanent, Facet syndrome, Lumbar Spine with low back pain, diagnostic code 5299-5295, 10% disability and discharged with severance pay)

VA letter dated August 3 2009

VA treatment records Leavenworth VA medical center, from January 27 1999 through August 3 2009

VA duty to assist letter dated September 14 2009

VCAA notice response received October 30 2009

Service treatment records November 25 1980 through January 18 1985 (the PEB disposition is dated 18, Jan 85)

Military discharge document, DD214, from April 23, 1981 through April 15 1985

DD215 dated May 8 1985

VA audio examination, dated December 7, 2009 Leavenworth medical center with addendum dated February 25, 2010

VA duty to assist letter dated February 12 2010

VCAA notice response letter received March 29 2010

The claim decision letter deferring the decision on the entitlement claim for Spondylolysis, L1 is dated May 11 2010.

I really want to see my C file and was told today by my American Legion rep that I needed to send a request into the Wichita Regional office, I hope this doesn't throw them for a loop and jack up the time to get this resolved. I went for x-rays on both hips today because during the comp evaluation last Monday the nurse said my hips were really messed up and I should have the x-ray done. My thoughts were to do this now instead of waiting for a letter telling me that they were deferring again until I had hip x-rays. I am learning fast (:

I did not claim depression for secondary to the back pain, I have fought depression for so many years that I dread going there.

There is no pre-existing condition, the first incident was when I took the fall in 1982 and went to the emergency room at the hospital on base.

[Berta]

"t goes on to say that a review of your VA treatment records shows that you had been seen multiple times for complaints of low back pain. You have told clinicians that this started with your fall on the ice in the military. You have received epidural injections for relief of pain with good results. You have also undergone multiple rounds of physical therapy but do not think it has provided significant benefit. On July 8 2009, you reported to VA clinicians that you sustained a lifting injury to your lower back while working. You received workman's compensation for this injury. The VA clinician stated that your current back condition is primarily the result of this work injury.

The work injury that they are referring to happened in 1990 and was caused by lifting stacks of paper that weighed 15 pounds. I told them about this to help show that the injury sustained in the USAF had been following me throughout my life and was chronic. I ended up being diagnosed as clinically depressed and was place on total disability for 90 days because of the pain that I had, during this time the company fired me and I filed for workman's compensation."

"The VA clinician stated that your current back condition is primarily the result of this work injury." Yo would not have had the work injuty but for the inservice injury!

They say right there that you still had problems after treatment.

This is a typical VAola BS denial.

But one problem is that they have to separate the military injury from what p[ercent they feel the work injry caused.

One way around that is to say that the lifting injury (NSC) was aggravated by the SC injury.

There is a topic here on aggravation of a NSC condition by a SC condition and I think I did a SVR show on it but forget when.If you use our search feature up top and search under aggravation you will see what I mean.

"Copy of PEB Board findings received July 28 2009 (findings were Disability is Permanent, Facet syndrome, Lumbar Spine with low back pain, diagnostic code 5299-5295,"

this was listed as evidence but I dont see where -in the narrative= they even mentioned it.This didnt resovbe itself and the VA didnt cure it-I am baffled at this denial.

Then again the post service injury-is what they are using against you.

Do you have the medical records that resulted from the post service injury? Does VA have them?

"I ended up being diagnosed as clinically depressed and was place on total disability for 90 days because of the pain that I had, during this time the company fired me and I filed for workman's compensation."

Was the company aware you were a disabled veteran and does the company come under the ADA? Did you sue them?

I feel you need a good service officer or vet rep to help you, and you might definitely have to get an independent medical opinion and they can be very costly.

I also feel you should file for TDIU, and tell them that the aggravation of the on the job injury was due to the service connected injury and it caused you to become unemployable.

Was the inservice injury mentioned in detail as part of any therapy notes when you were diagnosed with depression?

Did the VA medicate the inservice injury and could the medication itself have caused the depression?

"The VA clinician stated that your current back condition is primarily the result of this work injury."

I Never believe them on this stuff. Do you have a copy of the actual C & P exam? Make sure the examiner actually referred to your SMRS (which I bet he/she didnt even do that.

I hope others chime in here. I read decisions like this and am flabbergasted by them.

The mil said you had a disability and Pebbed you out.

Then the VA says that is all a fantasy? I dont know what to suggest on the hearing loss claim.What was your MOS inservice?

Did you wear protective hearing gear? Was any audio problems noted in your SMRs or discharge physical?

Was the back injury noted on the discharge physical?

[BasehorVet]

Berta,

I do not remember a discharge examination, I do have a form 88 Report of Medical Examination dated 2 August 1984 that was conducted for the MEB which states Recurrent back pain, 1981 to present, 2 to fall, treated with back brace and physical therapy, diagnosed as facet syndrome with myofascial chronic pain pattern. This was submitted but is not showing up on the medical list of evidence that they sent to me in May, I actually sent in a two inch stack of past medical examinations and physical profiles dealing solely with the back problem, I made copies of them 25 years ago 1 week before I was discharged and have carried them around since then.

The only pain medication that they ever gave me was Valium right after the accident at the hospital.

The hearing loss is denied because I blew out my eardrum in a water skiing accident in the 90's and there was major damage to the inner ear. They did add on the tinnitus without my requesting them to do so and awarded me 10% on that but I owe for past medications and the checks will stop until I repay the $300.

I am and have been bewildered by this for 25 years, cannot understand how I could be medically discharged by the AF and then denied by the VA for a non-existent injury two months later.

I will update if and when I can get copies of my Claim records, I asked for copies of the medical records in April of 2009 and still have never received copies of them, I thank God that I made copies of and kept my medical records so long ago.

Victor

[Berta]

"I thank God that I made copies of and kept my medical records so long ago."

YES !!! The Mil makes sure now(I think) that all newly discharged leave with their med recs.My daughter would ask for a copy of her med recs as they occurred (USAF 7 years)and checked what she had before she was discharged.They also have good transition briefings now a days as well.

Do I understand you did get continuous treatments and/or medications for this disability since leaving the service?

I dont get it. My neighbor 20 years USAF retired had a back injury in service and then it didnt bother him much until he obtained VA employment.About 15 years had passed with no major problems.

After getting an MRI the VA doctor immediately told him it was as likely then not due to the inservice injury.He only got 10% and of course they deduct the VA comp from his retirement check. His claim only took 9 months.

I believe that as in his case, and also hopefully in your case, the MRI will reveal medical evidence that would warrant an award.

Any medical records that resulted from the work related incident as well as any treatment records for the depression would be helpful to you-in my opinion-if the pain of this injury was the etiology for the depression.I feel the depression should be claimed- actually I thinki if yo are still unemployed you should file for TDIU .I even wonder if this is degenerate disk disease resulting from the initial injury bt I dont know much about spine injury claims. There is a Spinal depository blog here available under search feature with more info.

Are there any past X rays of your back that were done before leaving the Mil?

[carlie]

Hi all,

I was discharged by the USAF in 1985 under AFR 35-4, with the narrative reason for separation being "Discharge by reason of physical disability with entitlement to severance pay". The findings by the USAF PEB was the member is unfit because of physical disability and the disability is permanent. I was given a 10% rating by the board for Facet Syndrome, lumbar spine with low back pain with a VA diagnostic code number of 5299-5295.

Victor

Perhaps this is the reason the VA referred to the claim as "Re-opened" ?