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racemech

My Nod Letter For Member Review

Question

I just filed this NOD yesterday, and I wanted some input from the Hadit members. I feel that I did everything but go to the VARO and walk them through it. This is just the tip of the iceberg. I am still having issues with the VAMC ignoring me for the persistent right flank hernia and my colon. I have had my PCP, two Gastro docs, a Urologist, and a Neurosurgeon, and a Patient advocate request multiple surgical consults with the doctor that performed the hernia repair in 1/2009. After six months, I am still being ignored. As a result of the faulty hernia repair, I have an incarcerated colon and lower spine damage. The spine issue is caused by massive atrophy of the right abdominal wall and makes me lean to the left. After two epidural shots and a discectomy, the constant pain is gone...but for how long? Sorry to get off topic. Please read my letter and offer suggestions.

NOTICE OF DISAGREEMENT 3/6/2011

This is a notice of disagreement (NOD) to the VA letter/s dated 03/15/2010. I disagree with all the adjudicative determinations mentioned in the above referenced VA letter/s and any enclosed thereto, except for those, if any, that I specifically state here that I do not want to appeal. Therefore, my notice of disagreement specifically covers all the determinations made by the Regional Office unless specifically excluded. I also disagree with the RO’s failure to adjudicate issues and claims it was required to adjudicate. I am specifically referring to issues that I may not have discussed but which were reasonably raised by the evidence in my VA Claims file or in the VA’s possession that should have been inferred by the Regional Office. This appeal also includes adjudicative determinations that were mischaracterized by the Regional Office.

I have multiple daily symptoms that have failed to be addressed with the proper severity rating. These include the following:

1. Multiple (4-5) small bowel movements daily, both diarrhea and constipation. Severe cramping and pain throughout the day. During bowel movements, I have sharp burning pain at the sight of the colon incarceration. VA Medical staff have previously diagnosed me with IBC on 11/24/2009.

2. Constant acid in my esophagus. This results in persistent coughing followed by vomiting, usually 2-3 times a week. I am awakened every night with stomach acid and stomach contents in my upper esophagus, which leads to coughing and vomiting. VA Medical Staff has previously diagnosed me with Barrett’s Esophagus 01/05/2010.

3. Daily panic attacks in the morning, followed by depression and exhaustion for the remainder of the day. My wife has to tell me things over and over until I get them done. She has to be involved in decision-making, as I usually just have a complacent attitude. I have violent outbursts 2-3 times a week. It has taken me 9 months with the help of my wife and others to write this letter. VA Medical Staff has increased my current Lexapro dosage, enrolled me in Anger Management classes and a PTSD screening is currently pending.

4. I have difficulty walking, sitting, standing and laying down caused by the constant pain starting in my lower back and traveling down my right leg and into my right arm. I have numbness and tingling down to my toes and fingers of my right side. My right leg will fail to come forward while walking, causing me to fall. On several occasions I have fallen and hit my head, injured my right wrist and hand, and sprained my right ankle. I use a VA issued cane and walker for walking and getting up and down from a sitting position. I cannot lift over 10lbs without pain from my back and my right flank. My wife has to do as much of the heavy lifting as she can, or wait for friends and relatives to assist.

Duodenal Ulcer, current rating: 20%. The VARO decision failed to cover the fact that I have been diagnosed with IBS/ICS and Barrett’s Esophagus with restriction noted in my medical records by VAMC Asheville during 11/2009. According to VA regulations, my symptoms warrant the following ratings:

(7305)Duodenal Ulcer : Moderately severe; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year-40%

(7203)Esophagus, stricture of: Moderately severe; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year-30%

(7319)Irritable colon syndrome (spastic colitis, mucous colitis, etc.): Severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress-30%

Depression, current rating: 30%.Daily panic attacks, short term memory loss, confusion, staring off into space for hours. According to VA regulations, my symptoms warrant the following ratings:

(9434) Major Depressive Disorder: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships 50%

Painful Scar, current rating: 10%. VA rating decision failed to address lower back injury caused and or aggravated by surgery, to include persistent hernia, major muscle atrophy and colon incarceration, sciatic nerve damage. Back injury secondary to Right Nephrectomy 7/1994 and Right Flank Hernia Repair 1/2009-MRI from 11/05/2009 clearly shows posteriolateral lumbar hernia that includes part of the ascending colon. VA is currently providing a cane and a walker to assist in walking. VA prescribed pain medication does not have a significant effect on pain. A private Neurosurgeon has performed two spinal injections in an attempt to relieve the pain. Pain is constant, day and night since 10/03/2009. VAMC Asheville is currently evaluating my current condition for possible corrective surgery of the persistent incisional hernia and incarcerated colon. Corrective surgery for Invertebral Disc Syndrome was performed on 12/13/2010, with additional surgeries required in the future. According to VA regulations, my symptoms warrant the following ratings:

Group XIX. Function: Support and compression of abdominal wall and lower thorax; flexion and lateral motions of spine; synergists in strong downward movements of arm (1). Muscles of the abdominal wall: (1) Rectus abdominis; (2) external oblique; (3) internal oblique; (4) transversalis; (5) quadratus lumborum. Severe-50%

Group XX. Function: Postural support of body; extension and lateral movements of spine. Spinal muscles: Sacrospinalis (erector spinae and its prolongations in thoracic and cervical regions).Cervical and thoracic region: Severe-40%

Severe disability of muscles —(i) Type of injury. Through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring.

(ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph © of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements.

(iii) Objective findings. Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability:

(A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile.

(B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle.

© Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests.

(D) Visible or measurable atrophy.

(E) Adaptive contraction of an opposing group of muscles.

(F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle.

(G) Induration or atrophy of an entire muscle following simple piercing by a projectile.

(Authority: 38 U.S.C. 1155

[62 FR 30238, June 3, 1997]

Intervertebral disc syndrome-MRI from 11/05/2009 clearly shows damage to L1 and L5 discs caused by posture misalignment as a result of muscle defects and displaced colon as residual from both Right Nephrectomy 7/1994 and Hernia Repair 1/2009. A more current MRI performed 09/13/2010 by VAMC Asheville supports this evidence, and reveals a worsened condition, requiring additional surgeries to at least stabilize my health. 60%

I request my claim be afforded a de Novo review by a Decision Review Officer and a Statement of Case (SOC) be prepared and forwarded to me.

Thank you.

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"As a result of the faulty hernia repair, I have an incarcerated colon and lower spine damage. The spine issue is caused by massive atrophy of the right abdominal wall and makes me lean to the left. After two epidural shots and a discectomy, the constant pain is gone...but for how long? Sorry to get off topic. Please read my letter and offer suggestions."

Is the claim filed under Section 1151, 38 USC?

Has the incarcerated colon been directly linked to the faulty hernia repairs as well as the atrophy of the abdominal wall?

What medical evidence do you have that indicates "faulty" hernia repairs? if you have solid documentation of this:

"I have had my PCP, two Gastro docs, a Urologist, and a Neurosurgeon, and a Patient advocate request multiple surgical consults with the doctor that performed the hernia repair in 1/2009."

that documentation would indicate there has definitely been problems regarding the hernia surgery.

Are those consult requests in your med rec file?

"Intervertebral disc syndrome-MRI from 11/05/2009 clearly shows damage to L1 and L5 discs caused by posture misalignment as a result of muscle defects and displaced colon as residual from both Right Nephrectomy 7/1994 and Hernia Repair 1/2009."

Is that clearly stated in the MRI narrative just as you stated it here?

"A more current MRI performed 09/13/2010 by VAMC Asheville supports this evidence, and reveals a worsened condition, requiring additional surgeries to at least stabilize my health. 60%"

Is that clearly stated in this MRI narrative?

Did the VA consider this evidence at all in their denial?

Can you scan and attach here their Reasons and Bases for denial? (cover personal stuff)

How much time do you have left to file a timely NOD?

The NOD is written well but I don't know if this is a Section 1151 claim or not.

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I have a suggestion, meant to help:

Shorten it up. Reason: The VA loves to use OUR words against us. Fewer words means less of a chance to say something that will hurt us. Remember the VA wont rate us on our medical opinions anyway so I would refer them to medical exams made by medical professionals. Its okay to state your symptoms...especially the ones for which the RO had failed to adjuticate but I would state them like this:

On June 21, 2010 Dr. Smith, in a VA exam reported the Veteran had...(list symptoms in the report). Make sure you have all three things necessary for an informal/inferred claim:

According to the VBM there is a 3 prong test for an inferred claim. Get all 3.

1. It has to be written. (VA docs exam is fine) 2) It has to demonstrate the Veteran intended to apply for a benefit and 3) You have to "specify the benefit sought". This assumes, of course, YOU HAVE ALREADY FILED A FORMAL CLAIM FOR BENEFITS. (But you only have to file ONE formal claim)...the rest can be informal or inferred.

If you are missing "one of the legs of the claim stool" it will fall over. There are some exceptions, like if you are 100 percent disabled eligibility for SMC is inferred, and you do not need to show intent to apply for "SMC S" housebound..its automaticly inferred, and you dont need to show intent. when you are 100 percent, for example.

Edited by broncovet

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I agree with Broncovet but I need to see the Denial letter.

I can see your frustration when dealing with a denial as I too have been through the same situation.

In order to do this you dont have to mention the fact that you dont want to go to the BVA, This just gives the Ro ammununition to drop you a shotgun denial SOC and you could be left out in the cold. Keep all appeals options open. They are there for your benefit.

Please scan the details so the folks here can review and help you.

Keep this NOD as simple as possible.

Make a chart to keep for yourself. I have a template if you need it.

On the chart list A: Medical condition: B chronicity or treatment in service and post service: C Nexus: Did a Doctor map the current condition back to the in service illness, injury .

I disagree with the following decision or decisions:

Item 1:

reason:

Item 2:

Reason:

The evidence listed on the Statement of case is actually of benefit to you. It will detail the evidence used and how they used it.

I would also consider contacting an experienced VA only Law firm to help you.

If you want a strong referral, shoot me a PM.

JBasser

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Berta,

No, this is not an 1151 claim. I have contacted two law firms, but both of them say that I do not have a case at this time. The incarcerated colon and muscle atrophy were discovered in an MRI from 11/2008, prior to the 1/2009 hernia repair. I have documentation in my medical record where the surgeon states in numerous follow ups that no hernia is present. However, there are multiple entries from the radiologist stating the exact opposite, hernia is present...includes incarcerated ascending colon...muscle atrophy and fat replacement in the lower right quadrant. The radiologist also references two other MRi's performed in 2010 and states that no changes have occurred since the original pre-surgical MRI. This is my reasoning for using the term "faulty". If I had hernia repair surgery, but the hernia and colon incarceration and muscle atrophy still exist, then what did the surgeon do? The other doctors that have examined me and requested surgical consults are being vague and only acknowledge that I have a hernia. I know that it is way past time to get an IMO. I cannot seem to find a doctor to get an IMO.

I have until 3/15 to file a NOD. I can fax it to my VSO. When he gets it, he hand carries it upstairs to the VARO usually within an hour. There is so much more to this case that I have not even begun to tell anyone. I need to find a lawyer that will help. Sorry, but when I start talking about this stuff, my moderate depression becomes severe. Bear with me if my responses are delayed.

Thanks

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"I have contacted two law firms, but both of them say that I do not have a case at this time. The incarcerated colon and muscle atrophy were discovered in an MRI from 11/2008, prior to the 1/2009 hernia repair"

I did some research on your conditons last night.And found that either condition could predate the other and not necessary involve any finding of "fault."

The lawyers are correct.

"I know that it is way past time to get an IMO. I cannot seem to find a doctor to get an IMO.

The NOD has a deadline but you sill have time to obtain an IMO to use as a rebuttal to the SOC.

"If I had hernia repair surgery, but the hernia and colon incarceration and muscle atrophy still exist, then what did the surgeon do?" An IMO doctor could figure that out.

If we could read the decision here (cover personal stuff) we could advise better.

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