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Ankle Claim Denial Amc


MikeR

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  • HadIt.com Elder

Hello everybody, Hope all is well. I recieved a SSOC in the mail yesterday in regard to my ankle condition which is in fact denied. This is the second time this has happened as I appealed the AMC denial to the BVA last summer, and this was their remand instructions:

Entitlement to service connection for residuals, fracture of left ankle. In its August 2005 remand, the Board noted that there was evidence of a left ankle injury in service. The AOJ was instructed to schedule the Veteran for an examination of his left ankle to determine if he had any current left ankle disorder, and, if so, to render and opinion whether such disorder was likely related to his active service. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159©(4) (2007) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Therefore, an examination and opinion are needed before the Board may make an informed decision concerning this claim. In September 2008, a VA contract examiner provided a

diagnosis of left foot and ankle injury. X-ray evidence showed calcification at the os calcis which would be a residual from surgery and/or torn tendon. However, no

etiological opinion was provided. In February 2009, the AOJ requested another VA examination for obtaining a nexus opinion and consideration of evidence which had been received since September 2008. A VA examiner in May 2009 diagnosed the Veteran with left Achilles tendonitis, but a provided no opinion as to the likelihood that the current left foot/ankle disorder was related to the Veteran's military service.

In a July 2009 Appellant's Brief, the Veteran's representative contended that the issue requires a remand for an etiological opinion. The Board agrees.The Board's remand instructions relating to the left ankle were not complied with, and another remand is needed in order to ensure compliance. See Stegall v. West, 11 Vet. App. 268,

271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance].

They are now indicating that my ankle issues although well documented did not happen in service as I claimed that I had an "Ankle Fracture." I am but a lay person and did not know what to call my foot problem and they are hinging their argument on this wording. They are also discounting the IMO from Dr. Greg Berlet Board Certified in Orthopedic Surgery as well as Foot and Ankle Surgery Chief at Ohio State University. He is one of the foremost ankle replacement and surgical experts in the country and is my actual treating MD. They are claiming that I am not even allowed the Benefit of the Doubt rule. I could pull my hair out if it were not for the PTSD drugs I take. Also they are claiming that I since I only occasionally brought up the complaints that it must not have been an issue, of course I was taking 3200 mg Motrin daily for my right arm condition so the residuals of the pain meds had effected my foot as well. I need to respond to this by August 2nd. Any ideas would be welcome. Thanks Mike.

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"They are claiming that I am not even allowed the Benefit of the Doubt rule. "

Did they mention as evidence your IMO at all?

How did the weigh that opinion against their VA opinion?

Did your IMO doctor follow the IMO criteria here and also did he give them a Curriculum Vitae or mention his expertise in the IMO?

This is ridiculous.

How did they word the rationale for Not extending Benefit of Doubt to you?

How did they question his IMO in the decision?

Can you cover personal info and scan and attach the decision here?

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  • HadIt.com Elder

Berta,

Thank you for looking at this. I will see what I can do about scanning. I spent several hours last night digging through documents. I will post this as soon as possible.

Thank you

Mike

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  • HadIt.com Elder

Hello everybody, Hope all is well. I recieved a SSOC in the mail yesterday in regard to my ankle condition which is in fact denied. This is the second time this has happened as I appealed the AMC denial to the BVA last summer, and this was their remand instructions:

Entitlement to service connection for residuals, fracture of left ankle. In its August 2005 remand, the Board noted that there was evidence of a left ankle injury in service. The AOJ was instructed to schedule the Veteran for an examination of his left ankle to determine if he had any current left ankle disorder, and, if so, to render and opinion whether such disorder was likely related to his active service. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159©(4) (2007) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. Therefore, an examination and opinion are needed before the Board may make an informed decision concerning this claim. In September 2008, a VA contract examiner provided a

diagnosis of left foot and ankle injury. X-ray evidence showed calcification at the os calcis which would be a residual from surgery and/or torn tendon. However, no

etiological opinion was provided. In February 2009, the AOJ requested another VA examination for obtaining a nexus opinion and consideration of evidence which had been received since September 2008. A VA examiner in May 2009 diagnosed the Veteran with left Achilles tendonitis, but a provided no opinion as to the likelihood that the current left foot/ankle disorder was related to the Veteran's military service.

In a July 2009 Appellant's Brief, the Veteran's representative contended that the issue requires a remand for an etiological opinion. The Board agrees.The Board's remand instructions relating to the left ankle were not complied with, and another remand is needed in order to ensure compliance. See Stegall v. West, 11 Vet. App. 268,

271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance].

They are now indicating that my ankle issues although well documented did not happen in service as I claimed that I had an "Ankle Fracture." I am but a lay person and did not know what to call my foot problem and they are hinging their argument on this wording. They are also discounting the IMO from Dr. Greg Berlet Board Certified in Orthopedic Surgery as well as Foot and Ankle Surgery Chief at Ohio State University. He is one of the foremost ankle replacement and surgical experts in the country and is my actual treating MD. They are claiming that I am not even allowed the Benefit of the Doubt rule. I could pull my hair out if it were not for the PTSD drugs I take. Also they are claiming that I since I only occasionally brought up the complaints that it must not have been an issue, of course I was taking 3200 mg Motrin daily for my right arm condition so the residuals of the pain meds had effected my foot as well. I need to respond to this by August 2nd. Any ideas would be welcome. Thanks Mike.

All that I can make of what you have posted here so far, is that the Board agrees with your representative that the issue requires a remand for an etiological opinion. This doe not mean that the Board has denied your appeal, just that their original remand was not complied with on any level. The Statement Of the Case that you received when you received your denial from your Regional Office will most likely not hold water when the Appeals board finally receives a true and correct and complete compliance with their remand.

Ah, my lad, do not become discouraged.................for the truth will out (eventually). (a VERY "loose" quote from, if I remember correctly, "Macbeth", but, I could be wrong, it could have been "A Mid-Summers Night Dream"...........HEY! Don't knock it, an English Lit degree and a job at McDonalds. :rolleyes:

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  • HadIt.com Elder

Berta,

I should be able to scan the new SSOC denial from the AMC tommorow morning, but for background this is the IMO from the Doc:

Gregory C. Berlet. M.D.

300 Polaris Parkway, Suite 2000

Westerville, OH 43082

June 18, 2009

To Whom It May Concern,

Mr. XXXXX has been a patient of mine since 2006 when he presented for evaluation of chronic left foot pain and decreased mobility.

Past Medical History:

Mr. XXXXX stated that he had been a runner prior to joining the army and had no history of foot pain or injury until a helicopter accident. Since that time he has been unable to walk without pain or to have full mobility in his foot.

A review of his certified medical records from the United States Army indicates that this condition was first reported following a fall out of a helicopter in 1993. He was treated by a medic at the time of the injury. An examination performed at Tuttle Army Health Clinic at Hunter Army Airfield in Georgia on June 28, 1993 found that Mr. XXXX had sustained trauma to the calcaneous of his left foot. A follow-up examination on July 1, 1993 conducted at the same facility confirms the diagnosis of trauma to the calcaneous. Treatment of this injury had included antiinflammatories and use of a cane due to the loss of normal function of the left ankle.

On physical examination on February 16, 1998, immediately prior to his discharge from the Army, Mr. XXXXX was noted to have a painful left ankle and left Achilles tendonitis. This shows that there were chronic and recurrent problems with his ankle during his remaining time in service.

Because of continuing pain and loss of function, Mr. XXXXX consulted with Dr. XXXX in September 2000 who found that the calcaneous had been fractured years earlier and had healed in an incorrect position. Because this was not repaired at the time of the injury while in the Army, the incorrect alignment of the calcaneous was causing inflammation around the Achilles tendon. If left untreated eventually the irregular calcaneous resulting from his injury would cause tearing of the Achilles tendon. As his condition continued to worsen he would need surgery to remove the calcaneous.

Physical Exam Findings when referred for surgery:

Mr. XXXXX showed markedly decreased range of motion in his left ankle. He had decreased muscular strength, inflammation, and pain on standing and palpation of the Achilles insertion. He walked with a noticeable limp. MRI exam confirmed the changes to the calcaneous. The Achilles tendon was found to have 25 – 50% cystic necrosis due to continual pressure.

Due to the chronicity of his ankle dysfunction, I recommended surgery to remove part of the calcaneous that was putting pressure on the Achilles tendon. This surgery was intended to be palliative because there is no treatment that can return the joint to normal function.

Surgery was performed on November 3, 2006. Since that time Mr. XXXXX has not regained any joint mobility and in fact has continued to lose mobility. He still walks with a limp and has pain in his left ankle. There are no further treatments that will aid in regaining this lost function so this is considered to be a permanent disability.

Veterans Administration Physical Examination Findings:

On September 16, 2008 Mr. XXXXX was examined by Dr. James Risko for the Veterans Administration. He confirmed that there is an area of numbness measuring 20 cm vertically and 9 cm horizontally from the surgical site. The foot has dorsiflexion from zero to 6 degrees, plantar flexion from zero to 2 degrees, inversion zero to 10 degrees, and eversion from zero to 14 degrees. Rocking back on his heels causes pain.

A second Veterans Administration exam on May 22, 2009 by Michael Pritchard confirmed that there was pain in response to palpation of the Achilles tendon insertion. The foot's neutral position is 40 degrees plantarflexion. Mr. XXXXX was only able to actively move the foot 5 to 7 degrees. Active dorsiflexion is only 3 degrees.

Summary:

Mr. XXXXXX suffers from a degenerative condition that is secondary to trauma sustained while on active duty in the United States Army. This condition has caused considerable loss of function of Mr. XXXXX left ankle. At this time he is unable to walk or run without pain. He can not climb stairs without using a railing for support. This condition is not curable and must be considered a permanent disability. In his case I believe that it was directly caused by the prior trauma described by Army doctors in 1993 that led to his current disability

So far as I read the SSOC they are saying that since I did not have any complaints from 1993 to 1998 then I was silent on the problem and of course I did apply for the disability in 1998 they don't consider it a problem as I did not seek treatment until 2000 which is 2 years after I got out. Also since I called it a fracture they are saying it was not a fracture so I don't have a problem either. At the time I filed the claim I did not know what to call it, I just knew something in my foot felt broken. My achilles tendon was being sawed in half by the growth on the back of my foot.

Edited by MikeR
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  • HadIt.com Elder

Mike, I'm in agreement with Berta. I really do look forward to their SSOC. Their denial is bound to be astounding.

I didn't even come close to having such a GOOD, favorable, statement, either from my IMO or from the VA's own C&P doc (although it was the VA's own C&P doc that got me my claim award). BTW, my original claim was for a screwed-up left ankle, and a broken tibia that the Navy did not find on x-ray (because they didn't take the x-ray but except for the ankle, not high enough to show the fractured tibia so now I walk with my left leg twisted, what's left of it anyway).

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