Opinion Of Nod Letter, And Process-

[brokensoldier244th]

Here is my NOD letter for a decision for ED and SC for left leg radiculopathy-Thoughts?

NOD Notice of Disagreement

Department of Veterans Affairs

I received a rating decision dated10/05/2010. Consider this letter to be an official “Notice of (NOD) regarding thefollowing denied disability claims: Service connection Left extremities forradiculopathy, and service connection for Erectile Dysfunction/Sexualdysfunction. I disagree with both findings for the reasons noted below.

1) Service Connection for Left leg Radiculopathy denied due tolack of evidence per C&P examiner.

After reviewing the decision of the VA for

my claims of service connection of my left extremities, I feel that the rater overlooked substantive evidence and history of a bilateral condition(tingling/numbness in lower extremities) since my time on active duty, and that the VA rater failed to address that my right service connected extremity wasrated as 10% Radiculopathy (mild incomplete paralysis continued) with the samesymptoms as what my left extremity as had since 2003. Within the same rating decision my service right extremity is called both radiculopathy and “incomplete paralysis”, yet my claim for service connection for my left foot was denied with the same symptoms present.

I have noted below what I feel is

conclusive evidence for service connection for radiculopathy/incomplete paralysis below the knee, based on findings that Left Lower extremity radiculopathy was clinically diagnosed during military service, and was caused by a rated service connected condition (Intervertebral disc syndrome). Thesediagnoses occurred while still on Active Duty, and were a direct result of theinitial back injury, and thus I feel they fulfill the required evidence forservice connection.

Rating Decision

2010

“Service connection for Radiculopathy of the left lowerextremity, claimed as secondary to your service connected intervertebral discsyndrome, lumbar spine, is denied because there is no evidence showing thatleft lower extremity Radiculopathy has been clinically diagnosed, as well as noevidence indicating that the claimed condition otherwise began during or was caused by military service....” [1]

Reasons for Disagreement:

-11JUL2001 Battalion Aid, Ft.

Lee, VA clinic screening notes " that all 10 toes felt numb"and acute lower back pain [2]

-12JUL2001 Dr. so and so Army

notes "b/L parasesthesias" in his exam notes, also lower back pain [3]

-08AUG2001 MRI findings/neurological

narrative notes (my history of Bilateral Radiculopathy was the reason for the MRI in the first place) [4]

-Medical board proceedings were for

back pain/degenerative disc disease/bilateral dysesthesias (NarrativeSummary 1OCT2001)[5]

-VA Exam 17JAN2003 indicates

decreased reflexes bilaterally [6]

-2003 VA Ratings decision grants

service connection for Radiculopathy 10% right leg based on decreased sensationof right great toe, but not left leg, yet same symptoms are present in bothlegs. Treatment medication at that time included 800 mg ibuprofen 4x’s daily,Ultram, and Flexaril.

-Dr. notes both right and

left leg symptoms in her examination notes 6AUG2010. She did SLR’s, sensory,reflexes, and physical manipulation at that time.

“Strength is slightly diminished on the right leg

compared to the left. He is able to toe and heel walk although he does thiswith some difficulty. He has limited amount of toe raises that he can do rightfoot and left foot but can’t initially do them. The patients gait is antalgic” [7]

-C&P Examiner notes “decreased vibratory sense, left great toe” during 2010 exam. 1

These are symptoms that have beenpresent in my left leg (radiating pain, numbness, decreased sensory) sincebefore I discharged from the Army. I used the terminology “radiculopathy” basedon the VA’s usage of that description for my right extremity, but regardless of whether it’s called “radiculopathy”, “pins and needles”, “bilateral dysesthesias”, it is the same thing. I’m simply using VA’s own description ofthe condition as my basis for calling it radiculopathy. Since my right leg is rated 10% for Radiculopathy (or “incomplete paralysis, Mild”) based onmy lower back condition, I feel that my left leg should be granted 10% and bilateral, on thepresentation of the same symptoms (note current C&P finding of “decreased vibratory sense, left great toe” )1

This itself is consistent with a 10% rating for “mild incomplete paralysis” as used by the VA for my 10% rating in my Right lower extremity. The Examiner notes a lack of clinical evidence. I feel I haveprovided more than enough over a long period of time (since active duty) to indicate chronic pain and numbness is due to my back injury.

2) Service Connection Erectile Dysfunction denied due to lackof evidence from Examiner. I disagree.

“Service connection for erectile dysfunction (also

claimed as sexual dysfunction) , claimed as secondary to your service connectedintervertebral disc syndrome, lumbar spine, is denied because there is noevidence showing that any erectile dysfunction has been diagnosed, as well asno evidence that the claimed condition otherwise began during or was caused bymilitary service….” [8]

Reasons for disagreement:

-17JAN2003 difficulty with erectionsnoted by VAMC PA, progress notes

“Genitourinary-he reports urinary urgency sometimes has to sit tourinate since back injury. Genitalia-he admits to some problems with erections,which again is secondary to his back injury.”6

-Diagnosis/prescription Paxil for

premature ejaculation noted in letter as secondary to my lower back injury, Dr.so and so

“I have reviewed Mr. X service medical record

pertaining to his back injury that he sustained while in the service in 2002. Isaw him on August 6^th and we went through the history and currentissues involved with his low back pain and radiculopathy. At that time he told me that he has had issues with erections and premature ejaculation since that injury was sustained. Therefore it is my opinion that his current symptoms appear to coincide with the injury in the service. We have started him on Paxilas that does tend to help delay ejaculation and hopefully improve hissymptoms.” [9]

-No C&P was scheduled for

erectile dysfunction, no examination given for this condition. Why would aC&P for peripheral nerves be addressing sexual dysfunction? My own doctorhas examined my service records in their entirety, and examined me independently of those records. She has diagnosed premature ejaculation/sexualdysfunction being secondary to my service connected injury, and prescribedmedication for it.

I believe this clearly supports that there is erectile difficulty that is a direct result of my lower

back injury and that a 0% rating (for deformity) with SMC-K should have been granted. I have no priorhistory of sexual dysfunction before my injury during military service. Dr.so and so reviewed with me my entire service medical file and my C-file, inaddition to making her own assessment of my genital issues, and prescribed medical treatment for it, that is ongoing and under continual review. The VAMCvisit on 17JAN2003 where erectile problems were noted was also within one yearof my leaving the military (26FEB2002) and determined at that time by the VAmedical personnel to be secondary to my back injury that is service connected.The C&P Examiner notes no 'clinical' evidence of ED, yet complaints persist from 2003, and further clinical evidence of erectile difficulty was provided in 2010.<

am requesting a “De Novo Review”by a new Decision Review Officer.

Edited October 12, 2010 by brokensoldier244th

[brokensoldier244th]

Okay, here we go-high points first;

Denied for Left Leg radiculopathy; I guess now they are calling it 'incomplete paralysis'. my Rt leg is already service connected for 10% but it was called radiculopathy, though no EMG was ever done. The C&P from that time never used the word 'radiculopathy' in it, anywhere, nor did my treatment notes from service (bilateral dysesthesias is in there, once, but the rest of my notes from various exams use generic terms such as "pins and needles", "bilateral radiculopathy" or "radiating pain and numbness". )

I feel that I should be rated 10% for radiculopathy, left leg-but what do I call it? Bilateral dysesthesias? Incomplete Paralysis?

Is it separate claim, i.e. do i refile and call it something else using the same evidence that I have now (past and present), or do I do an appeal of the same claim pointing out the inconsistency?

Denial for Erectile Dysfunction-in the list of what was considered, my 'statement of support' (clinical visit notes) are listed for my Dr. but I sent in a nexus letter that specifically says "erectile dysfunction" but it is not listed on the decision letter. Maybe its listed as 'statement in support of claim', but ive attached it below and it seems pretty straightforward to me. The Decision letter also states that the examiner found no evidence of ED, but she never examined me for ED at all-she asked a few questions and spent the rest of the time on my PN tests.

I feel that with my letter from my doctor, her clinical notes, and a 2003 complaint of erectile problems to a VAMC PCP where he states " also have a VAMC report from my PCP in 2003 where he states " Genetalia-he admits to some problems with his erections, which again is secondary to his back injury.....".', and prescription for gabapentin, that I should have met the criteria. I submitted both of these, though the doctor's letter was after the claim had been sitting for a bit. I'm figuring the VAMC report from 2003 may have gotten buried. It happens.

So-my questions are:

-Do I refile for "What, exactly?" for my left leg service connection, or appeal/reconsider? If the pain and numbness, and sensory loss in my toes isn't radiculopathy, then what do I call it? Incomplete Parlysis (since those are the words that they used)? My right leg original decision from 2003 has the same symptoms listed by the C&P examiner and is called "radiculopathy", and no EMG was done that time.

-Do I appeal with my letter from my Doctor for ED since it wasn't included in the list of evidence considered, or just ask them to reconsider, with the letter?

Reasons for Decisions are attached.

VA pg1.pdf

VA pg2.pdf

VA page 3-4 .pdf

Edited October 11, 2010 by brokensoldier244th

[jbasser]

Clinically diagnosed would mean that you need to get an EMG and Nerve conduction study.

I would get that done before the NOD and ask for reconsideration.

J

[brokensoldier244th]

Ive had one. It said I didn't have any abnormality in my left leg.

My right leg never had an EMG either, yet the physical diagnosis of decreased sensation of the right great toe was enough for 10% for incomplete paralysis.

They symptoms persist in my left toes, and have for years. My contention is that they call my right leg radiculopathy in one part, yet in the same decision then call it 'incomplete paralysis', and then deny the left leg for the same symptoms as the right-when those symptoms are noted by the C&P during her physical examination. Im taking neurotnin 1200 MG a day for the tingling and what not-It helps, but I can't make an EMG show nerve impingement if the drugs im taking help with it. I suppose I could stop taking them and go get another one. *shrug*.

Thanks for weighing in, Jbasser! :-)

Clinically diagnosed would mean that you need to get an EMG and Nerve conduction study.

I would get that done before the NOD and ask for reconsideration.

J