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

[john999]

One thing you have to do is untangle the workers compensation injury from the in-service injury. I had this problem. What my doctor said was that my work aggravated my service connected illness/injury. I got WC until I got TDIU and then I had to choose between WC and TDIU. Are you getting WC now? When you mix WC injury with in-service injury it gets complicated. The WC people will try and say you have pre-existing injury, and VA will say your injury is due to your non military work. Really, I think a doctor should review your records and say that your military injury was aggravated by your work. How long were you on WC?

[Berta]

Yes-good point John and I also feel there is a basis for a CUE claim here as long as this vet can prove chronicity.

"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,"

“The letter that I just got from the VA states that they were deferring a decision until I have a VA examination. It also states that, We previously denied your claim for service connection for Spondylolysis, L1, left, by our rating decision on of July 22 1985, because the diagnosed back condition at that time was of a constitutional or developmental nature. While there was an injury to your back during service, it was of an acute and transitory nature which resolved without residual disability. You were notified of this decision by letter dated July 29 1985, anf this decision became final after one year. Our subsequent rating decision dated November 6 1990 continued to deny service connection. You were notified of this decision on November 16 1990. “

The VA had re characterized this disability (the PEB disablity) as “of constitutonal or developmental nature.”

The CUE somehow lies in that older decision -perhaps in the diagnostic code they used.

Veterans have overturned the “constitutional or developmental” BS with new and material evidence.

“As noted above, the RO denied service connection for pes

cavus in the April 1969 RD based upon a determination that it

was a constitutional or developmental abnormality and not a

disability under the law. However, subsequent VA treatment

records have characterized the Veteran as having acquired

cavus deformity of the foot. Therefore, the Board has

determined that the Veteran should be afforded a VA

examination to determine the nature and etiology of his

bilateral pes cavus.”

http://www4.va.gov/vetapp10/files1/1008170.txt

----------------------------------------------------------------------------

This vet wa PEBed as unfit for duty due to pre existing asthma :

Service connection may be granted for a disability resulting

from disease or injury incurred in or aggravated by wartime

or peacetime service. 38 U.S.C.A. § 1131 (West 1991); 38

C.F.R. § 3.303 (1999). For the showing of chronic disease in

service, there is required a combination of manifestations

sufficient to identify the disease entity and sufficient

observation to establish chronicity at the time. 38 C.F.R. §

3.303(b) (1999). If chronicity in service is not

established, a showing of continuity of symptoms after

discharge is required to support the claim. Id. Service

connection may also be granted for any disease diagnosed

after discharge when all of the evidence establishes that the

disease was incurred in service. 38 C.F.R. § 3.303(d)

(1999).

Under 38 U.S.C.A. § 1111 (West 1991), a veteran is afforded a

presumption of sound condition upon entry into service,

except for any defects noted at the time of examination for

entry into service. That presumption can be rebutted by

clear and unmistakable evidence that a disability existed

prior to service and was not aggravated by service. Id. See

38 C.F.R. § 3.304(b) (1999); see also Monroe v. Brown, 4 Vet.

App. 513, 515 (1993); Green v. Derwinski, 1 Vet. App. 320,

322 (1991).

In view of all these findings, and after resolving any doubt

in favor of the veteran, the Board concludes that his asthma

underwent an increase in severity as a result of service.

See 38 U.S.C.A. § 5107(b) (West 1991). Therefore, service

connection is warranted for this disorder.

ORDER

Entitlement to service connection for asthma is granted.

http://www4.va.gov/vetapp99/files4/9936243.txt

========================================================================

Also the older decision clearly define diagnostic codes that are ratable-

“Both the pre-amended and amended diagnostic criteria for the

spine, Diagnostic Codes 5243 and 5295, include consideration

of radiating pain, which encompasses radiculopathy.

38 C.F.R. § 4.71a, General Rating Formula for Diseases and

Injuries of the Spine, Note 1 (2009); 38 C.F.R. § 4.71a,

Diagnostic Code 5295.

http://www4.va.gov/vetapp10/files1/1010780.txt

It looks to me that VA gave the disablity a diagnostic code in the older decision that indicated it was ratable but clearly erred in applying the code to a proper rating for a condition that was not "constitutional or developmental".

[john999]

What if you have a consitutional or developmental deformity that is aggravated by military service. In real life a person with flat feet or pes cavus would not likely be forced marched 10 miles to the point the feet become major problem with permanent aggravation. Even if a vet had some back problems before service that he was not really aware of could not very rugged military service (humping 70 lbs load, climbing mountains etc) aggravate or precipiate this existing injury. If the military said you were fit for service and then years later your back breaks down how can they say it is an pre-existing condition? They gave you the stamp of approval.

[BasehorVet]

Here is an update 7-27-10

I received my claim denial letter for service connection the same day that I went to the VA to pick up the results from my MRI. The determination to deny me my rights as a service connected disabled veteran were made before the MRI test results were entered into my C file even though the C&P examiner had ordered the MRI.

MRI Findings:

Degenerative osteoarthritis of lumbar spine. Disc desiccation is at the level of L4 through S1 and to lesser degree L3-L4 and L1-L2. Vertebral heights and signal intensities and alignment are normal. Conus medullaris at the level of T12 and appears normal in signal and volume.

Disc Levels:

T12-L1: Unremarkable.

L1-L2: Minimal disc bulging at the right side of midline without spinal canal stenosis.

L2-L3: Unremarkable.

L3-L4: Minimal disc bulging with impression on dural sac without spinal canal stenosis.

L4-L5: Right paracentral disc protrusion with impression on dural sac and decrease AP diameter of sac to 6 mm.

L5-S1: Central disc bulging without spinal canal stenosis. Mild degree disc protrusion and possible sequestration projected slightly below L5-S1 disc level. Neural vertebral foramina are patent.

Impression:

Degenerative osteoarthritis of lumbar spine. No spinal canel stenosis is seen. Neural formaina are patent.

Borderline disc bulging at the level of L1-L2, L3-L4. Right paracentral disc protrusion of L4-L5 with decrease AP diameter of dural sac to 6 mm.

Mild degree disc bulging of L5-S1. Suggestion of sequestrated disc material adjacent to midline projected below the disc of L5-S1.

Diagnostic Code #6

Preliminary Diagnostic Code: ABNORMAL, ATTENTION NEEDED

In the VA claims denial letter referred to above, it states "At your VA examination, you recounted the circumstances of your back injury in service and treatment after service. You reported more than 15 periods of bed rest have been required over the last 12 months for low back pain and you are unable to walk more than a few yards. The examiner found your gait was antalgic with longer dwell time on your left lower extremity. There was no evidence of abnormal spinal curvatures or ankylosis. There was evidence of muscle spasms resulting in abnormal contour, guarding, painful motion, and additional functional loss after multiple repetitions.

In my claim file the C&P examiner noted the following findings.

Examination of muscles of the Spine.

Thoracolumbar

Spasms left and right - yes

Guarding left and right - yes

Pain with motion left and right - yes

Is the muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour - yes

Range of Motion

Active Motion

Flexion 0 to 87 degrees

Extension 0-15

Lt Lat flexion 0-15

Lt Lateral rotation 0-28

RT Lat Flexion 0-9

RT Lat rotation 0-30

Is there objective evidence of pain on active ROM - yes

Repetitive Motion

Is there objective evidence of pain following repetitive motion - yes

Are there additional limitations after 3 repetitions of ROM - yes

What is the most important factor - Pain

ROM after repetitive motion

Flex 0-85

Extension 0-10

Lt Lat Flex 0-8

Lt Lat rotation 0-25

RT lat flex 0-9

RT lat rotation 0-27

Miscellaneous Questions

Is Lasegues sign positive - yes

Side of positive lasegue's - left

The C file shows that under the heading of Ankylosis of the spine the examiner states is there cervical spine ankylosis no, is there thoracolumbar ankylosis no. Additional comments This veteran has bilateral second finger eversion and livedo reticularis on all four extremities. These are signs commonly associated with a hereditary form of arthritis, which would explain the development of facet syndrome at the young age of 24 as noted in the veterans medical board report AF form 618. dated Nov 1984.

The first problem with this is that they do not base this decision on the PEB dated Jan 1985, instead they chose to select a MEB that was conducted by a Dr. that I had never seen before because my airbase medical clinic had misfiled my original MEB and only found it after the second MEB had been conducted. The first MEB was performed by the chairman of the orthopedic medicine at the Bethesda Medical Center and and during the hearing at the Formal PEB it was determined that the second MEB had not been indicative of my true medical condition and threw it's results out and discharged me on the basis of the MEB conducted by the first orthopedic Dr. that had been treating me for 6 months.

The second issue is that I had already been scheduled an appointment with a dermatologist at the VAMC one week after the denial letter and in his report he states in a medical progress report that he see's no sign of livedo reticularis on any of my limbs.

In the C&P examination the examiner refers to Dr. POS's progress report using the following statements, Page 1, "He was seen and examined by Dr. POS, physiatrist, at the VAMC 7-08-2009 whose findings corresponded highly to the results of today's examination. Please refer to his progress note in CPRS.

The examiner also states that "There is evidence that this veteran has a hereditary form of arthritis with multiple joint involvement , including his "low back, hips and shoulders; less painful in his knees and ankles" as noted in Dr. POS’s progress note 7-8-09. It goes on to state that "Neither of his physical exams, today, nor that documented for 7-8-09, support his claim of permanent disability due to his 1982 injury"

I have filed the form to request a change to my medical progress report from Dr. POS and it starts with this.

This request is to amend the medical record which is indicated above. Reason for this request is that this progress report contains information reported by the examining physician (Dr. POS) that is incomplete, inaccurate, and malicious and which I believe could be construed as negligent. This medical progress report has caused me great harm.

It is a fact of law that I have a permanent physical disability and that this disability is evidenced within my military medical and administrative files by documents authored by the Department of the Air Force and affirmed by the Department of Defense in 1985. (See attached DD214 Certificate of Release or Discharge from Active Duty and Air Force Form 356 - Findings and Recommended Disposition of USAF Physical Evaluation Board)

10 USC CHAPTER 61 Sec.1203.(a),(b)(1)(2)(3)(4)(A)(iii). Sec.1212.(a)(1)(2)(A),(b)©(1)(B). Sec.1218.(a)(1). Sec.1222.(a)

AFI36-3212 1.1,2,3,7,9. Section 3A 3.1,2,14,18,20.1,20.2,22,22.1,24,25,28,29.4, Section 5A 5.9.5.2,13,14.1,19.1,19.2

Title 38 Part 1, Chapter 1 §101.(16), §105.(a), Part 2, Chapter 11 subchapter 4 §1131., Part 2 Chapter 17 subchapter 17 §1705.(a)(3), §1710.(a)(1),(A),(B),(2)(B), Part 3, Chapter 42 §4211.(1)(B),(3)(B),(4)(A)(B).

My disability was qualified as such by the laws and rules applied to my medical condition by the Air Force Formal Physical Evaluation Board in 1985 which placed in my medical files an AF Form 356, titled "Findings and Recommended Disposition of USAF Physical Evaluation Board".

The FPEB findings contained within this document establish that I was injured in the line of duty, that this injury caused my disability, that this disability is permanent and that this disability caused me to be found unfit for military duty with a disability rating of 10%. The medical diagnosis of "Facet Syndrome, lumbar spine, with low back pain is given in Block A under the heading of Diagnosis and the VA Diagnostic Code Number listed in block H is "5299-5295"

The DD214 that was entered into my records and presented to the VA by the Air Force in April 1985 confirms that all legal and medical standards applied by the FPEB in my case were correct and legally binding. This is evidenced on my DD214 under the headings of Separation Authority, "AFR 35-4 - Medical Discharge", and Narrative Summary "Discharged by Reason of Physical Disability with Entitlement to Severance Pay".

Copy 3 of this is DD214 was sent to the VA Data Center, Austin, TX. (214) and copy 6 was sent to the Kansas Veterans Commission, State, KS. Copy 5 was sent to USIDC, Baton Rouge, LA.

I discovered an administrative error with my social security on my DD214 while out processing and signed a form that allowed a DD215 to be processed to correct the administrative error and replace it with my correct social security number. Since my social security number is also used as my VA File number, I assume that the incorrect social security number stated on my DD214 caused a false VA file number under my name to be generated upon receipt of my DD214 by The Veterans Affairs.

I received my DD215 dated May 1985 and it shows the incorrect social security number was changed to my correct social security number. Copy 3 of this is DD215 was sent to the VA Data Center, Austin, TX. (214) and copy 6 was sent to the Dept. of Veterans Affairs, copy 5 was sent to Dept. of Labor Baton Rouge, LA.

My original claim for disabled veteran benefits was denied by the Veterans Administration in a letter dated 7-1985. In this letter it refers to my original claim as a re-opened claim, which I assume means that at some point the administrative error with the incorrect VA file number (social security number) had been corrected and that my original claim had been closed without notification to me and then re-opened without notification to me and after which, the re-opened claim for service connection was then denied.

I have on file with the State VARO a request open since 9-2009 requesting a copy of my C file to see if I can determine the exact chain of events that happened in 1985 to justify the VA's decision not being bound by my service departments FPEB disability determination, and what the damage to the claim was, if any, from the process that the Veterans Affairs used to adjudicate my claim for service connection as a denial.

A second administrative error on my DD214 was not discovered until June 25, 2010 and an application for a correction to my military records, (DD Form 149) dated that same day the error was found and was submitted to the Department of the Air Force, Review Boards Office. I was notified of receipt of this request in a letter dated July 1, 2010 and received an assigned docket number of BC-2010-******. The reason stated for the request to change my DD214 was that the Department of Veterans Affairs keeps denying my service connection because of the incorrect separation code listed on my DD214.

The DD149 attempts to correct the error with the separation code (block 26) listed on my DD214. The incorrect separation code on my DD214 is stated as JFL. This separation code pertains to a separation from the US Navy or Marines. The DD149 requests correction of my DD214 to reflect that my service organization was the US Air Force (not the Navy or Marines) and to issue documentation using the correct separation code used by the US Air Force, which is JFL1.

The incorrect separation code of JFL, currently on my DD214 refers to a determination that is used by the Navy or Marines to allow them to administratively discharge, without disability benefits, personnel who have disabilities, are found fit by PEBs but are deemed unsuitable by their commands for operational service.

The correct separation code of JFL1, missing from my DD214 refers to a determination that is used by the Air Force to allow them to honorably discharge, with disability benefits, personnel who have disabilities and are found permanently unfit by PEBs.

My disability is also evidenced in my VA files from 1999 when the VA accepted my enrollment for medical health care and placed me into Priority Group 3 – Defined as "Veterans who are former prisoners of war; have received the Purple Heart; have service-connected conditions rated 10 percent or 20 percent disabling; were discharged from active duty for a disability incurred or aggravated in the line of duty; and veterans who were injured as a result of VA treatment or participation in a VA vocational rehabilitation program". An additional service connection disability rating of 10% was awarded for Tinnitus by a claim opened by the VA, to which I was notified of in a letter dated in 2010.

The request the goes on to point out such things as:

"This is obviously reflected in his lack of knowledge of the etiology of my disability as reflected in the notes included in the progress report, especially in his determination stated in the addendum dated 7-12-09, which he reiterated that my problem seems to be more "work-related". Dr. POS also erred in this addendum in which he stated that he had ABSOLUTELY nothing to do with getting my back disability recognized by the VA for "service-connection". (Note he went back in to the report and tried to cover his but)

"I was attempting to explain to him that the injury, which caused me to be medically discharged from the air force in 1985 had continued and worsened to the point that I became 100% disabled by the pain and was diagnosed as clinically depressed. He elected to state in his progress report that I sustained a "lifting" injury in a work related accident and impart that I had negotiated an exchange of life-time medical coverage for a one-time cash settlement."

"Dr. POS attempts to cover and present the facts of three years of history of continuous medical care from my Service Department (Air Force), the fact that I was medically discharged by a FPEB for a permanent disability to my lumbar spine and its determination of a service connected injury by stating in a single paragraph within the progress report, under this heading that "In retrospect, he says he had also injured his back in the military, and that he was given a disability award from the US Air Force, but he was denied comp-pen coverage".

"Dr. POS incorrectly states in this section that "his workman's comp physician had given him an opioid, and though he cannot recall its name, it helped and he'd like something like that. I did not make this statement. If Dr. POS had taken the time to listen to me and develop the history of my medical care he would have most likely not made this statement, because in the state of depression that I was at that time due to my back pain and due to the fact that I was taking psychotropic medications and attending psychotherapy 3 times a week, that I would not be prescribed any kind of opioid."

"He physically abused me on purpose and later during the conclusion of the exam Dr. POS stated to me that he was attempting to hurt me."

"-Impression: Low Back Pain, This veteran's wants are two-fold:

1) Primary, is to get assist in getting this condition counted as "service-connected" and then to get disability payments for it.

2. He'd like an effective analgesic (an Opioid, which he can take if/as needed"

I am unable to find a job that I can do because of my established "service connected" injury and I strongly feel that I have the right to ask the VA to follow the law's established above and help me by providing the disability compensation payments that I am entitled to."

"Dr. POS had asked me what I wanted from him and I told him that I wanted an MRI conducted on my lumbar back so that the damage that I have from the service connected injury could be determined. He refused this request and got upset and stated that he would be happy to conduct painful tests on me, he described one as injecting air into the disc and puffing it up to see what kind of reaction would be gained. He told me that it would be very painful and all I had to do was provide an electronic signature on a device that was sitting on his desk and which he turned towards me as he said this. He then told me that he had tried to cause me pain during the exam and that if I wanted, he could also do some other tests that would be even more painful."

Plan:

I have nothing to offer at this time (which the patient is willing to accept). His exam findings are amazingly benign/unrevealing.

This statement causes me a great deal of anxiety and is self evident of his neglect. The findings from the C&P examination and the MRI reflect major problems that are far from "amazingly benign/unrevealing".

In closing I want to state that I want in my progress report to state the facts as they are presented from my past and current medical condition. I also want notification to be made to the necessary authorities within the VA that will cause my C&P file to be changed so that Dr. POS's findings are removed from my C file. I would also like to request that a letter is presented to me from the VA that apologizes for the pain and suffering that I have endured and am subject to continue to suffer from because of the situation that Dr. POS's medical progress report has placed me into.

The war has started! I will keep updating as the years go by. );

[sharon]

4.9 Congenital or developmental defects.

Mere congenital or developmental defects,

absent, displaced or supernumerary

parts, refractive error of the

eye, personality disorder and mental

deficiency are not diseases or injuries

in the meaning of applicable legislation

for disability compensation purposes.

I may be wrong, but this is what they are referring to in the decision. You need to get a nexus letter showing that it is as least likely than not that the current condition started with the fall. Otherwise you have despute the fact that they are calling this a congenital disorder. There must be medical proof. I would say that you can file a CUE if there is evidence of a fall while you were in the military. The fall would have had to occur before the first complaint of back pain. Otherwise you could claim aggervation. Hope this help.