Can Claimed Conditions Be Ammended? Or Do You Have To File A New Claim?

[gwvet90]

I have may have a big uuuhhhhoooo - I filed for a claim for L4-L5 fusion with sever back pain. I was also diagnosised w/degenerative disc disease (DDD) in service. I thought they were all the same thing - back pain.... but after researching - found they are very different....

I have sent in evidence & statements that included the the DDD = but after looking over my claim - I didn't specifically claim DDD....... I claimed L4-L5 fusion & back pain - which got denied because my surgery records are missing........... I just noticed this last night while reviewing my claim stuff that I hadn't actually listed DDD on the claimed conditions.

My claim has been in process for almost 2yrs - I don't want to miss the retro to my original filing date if I don't have too, but I don't want another denial - since all SR are missing on my L4-L5 surgery, however, the DDD IS in my records & easier to prove S/C & continued pain/disability.

So my delima/question -

1-Do I need to file a new claim specifically for DDD ?

2-Can I ammend my original claim to include DDD with the back pain L4-L5 fusion as a claimed condition?

3-Should I send a letter explaining I ment for them to all be in the claim - as I thought they were all the same thing?

Thanks,

gwv90

Edited August 14, 2006 by gwvet90

[Hoppy]

gwv90,

Do you have a service officer. This is the type of stuff service officers can handle. If you are afraid an SO will screw up your claim then hadit is a good way to go.

Did you get a VCAA letter? It would be interesting to see if this is another case of no VCAA letter or exactally what they told you to do to advance the claim.

I am not sure we have much experience here on this matter. I did something similar. I ammended a claim to include to different names for the same condition. What was the reason for the surgery? Did the DDD degenerate to the point of needing surgery. That is what I would claim.

If you had DDD for fifteen years then got in a car accident and needed surgey a month after the car accident, my bet is that the VA will rule an intercurrent injury.

I think the big question is why did they do the surgery and can the need for surgery be related and linked to the DDD that was diagnosed in the military. If you can establish that link then the exact condition that you put on the application might not be important. One way or the other you will need to show a link between the surgery and post surgical symptoms to the DDD that was diagnosed in the military to get a rating. If it is linked you could be elidgible for a convelescent rating while recovering from surgery and the subsequent degradation of the DDD that you had in service.

Continuity of pain post service is good to show, However, there aree other issues such as post service injuries. And would the DDD be expected to degrade to the level of needing surgery after discharge. This might be the type of evidence they need.

[Berta]

I would immediately send them this information- send it priority with tracking slip and state Re: and then use the person's initials on the last letter you got regarding your claim-

You could State at the top Further Support for Notice of Disagreement of (date)

and attach any medical info you can to support this-

Try to explain this like they are 10 years old-

could one be a secondary disability to what you are trying to get SC for?

If so claim it as secondary- hard for me to tell here-

It would pay to access the Schedule of Ratings in 38 CFR to make sure

1. they give you the right diagnostic codes,

2, they rate you properly according to those codes-

sounds like the fusion is secondary to me- and if they SC it to an SC condition - you could be eligible for temp hospital benefits at 100% due to the surgery -hard to say though-

others will help here---

[Hoppy]

Berta,

We hit the post button about ten seconds apart. What do you think about the VCAA on this. It does not sound like he got one.

[gwvet90]

Thanks for your replies, I do not have a VSO,

The surgery was done in the military - but they have no records of it... - after a fall, I had continued pain & went in to Dr. They did x-rays (which I have) & found the DDD. The surgery was done to fuse the L4-L5 - for pain? I'm not sure - I thought it was all related..... my memory is GONE.

I filed a claim 2 yrs ago, they sent me a letter denying S/C for the L4-5 surgery - couldn't find any records of it & actually told me " it didn't happen " etc.. They called me a lier - I was so offened about about the wording on this one....... If I didn't have the scars I probably would have believed them.... Anyway - I send NOD & picture of the scars, & copies of SMR of the DDD diagnosis & VAMC records w/degenerative changes of the spine - thinking they were all related - but maybe they are not...

The DDD was diagnosed in service when they did the x-rays after my fall. I have gone in the the VAMC several times over the years in extream pain - but there is nothing they can do except give pain med. They did do a IV contrast - which showed degenerative changes of the spine - but do not show the fusion - (it was done 13 years ago). When I got the VAMC recd's it also showed several orders for MRI, and then they canceled the request - they don't have a machine & have to send it out - I guess it was to expensive...

Anyway = I think they did the surgery because of the DDD which was aggervated after my fall, but there are no records about the surgery - just DDD.

I would rather forget about the surgery claim & just ammend to DDD - since it is much easier to prove & that is where my pain/disability comes from - so can I do that? Or do I need to open a new DDD claim?

[Berta]

Probably not-

after spending time looking over all the remands at BVA- I bet most vets don't get one-

If the lack of receiving a VCAA is not prejudicial- and the vet can succeed at the RO level with their evidence- it doesn't matter-

but if a vet gets a denial- or as I understand the VCAA- and posted this yesterday at hadit- if a claim had been in appeals, filed before the VCAA but yet in appeals after enactment of the VCAA- that claim deserves a VCAA letter also-

I think any vet who did not get a VCAA letter- the real Notification that Jangrin posted -with the boxes to check on it- and then gets a denial- they should write to Chairman Larry Craig

Chairman Larry Craig

U.S. Senate Committee on Veterans Affairs

412 Russell Ave

Senate Office Building

Washington, D. C. 20510

Say it is regarding the Backlog-give him your c file number and the specific RO that has your claim and explain that you were denied without a VCAA letter.

Within 5 days after writing to him my RO got his Senatorial request as an inquery-

Congressional and Senate Inqueries can hold up a claim- but heck- if you dont get your DTA rights -

from the git go- the VA can deny and not abide by VCAA and tell you what you need to succeed.

Your claim will be in limbo for month after month anyhow-

Hoppy check this out- I had to get my RO to clarify my issues many months ago as they had it all screwed up-

In their response to me they said I would get VCAA letters on my 2 CUE claims-

I told Chairman Craig the whole story-

these RO dopes do not even know -they do NOT send VCAA letters on CUE claims-38 CFR, M21-1

but I did ask the VARO recently (with a copy of their VARO promise) for those two CUE VCAA letters (just for spite)

Men and women we are dealing with two types of people at the ROs- those who do their jobs and are excellent at it and those who are incompetent idiots who are just hanging on for their federal employment retirement-FERS.

and sameo sameo for these vet reps.

They do not tell us who is who-

nor do we know what docs they have who might be quacks and which ones are real.

A vet here asked some time ago if anyone ever reported a VA doc to the AMA_

I just got a very interesting response from the AMA on that question-

I

[gwvet90]

Oh- What is a VCAA?

I got a letter (after a rude one I sent them for calling me a lier) & it said they didn't request hospital records - because they didn't know I had any (hello - where do you get surgery done???) And they needed exact dates to request them - which I don't know......

I haven't sent a reply to their letter yet. They have assigned me for 4 C&P's - but not for my back & not for my seperate 1151 claim.

I think they are waiting on my reply to move forward on that claim for my back - but the letter only addressed my surgery & didn't address the DDD - which is why I got to thinking I may need a new claim for DDD.... Can I just send a letter saying I thought they were all one thing & if they are not then tell them to also consider that letter a formal request to open a new claim for DDD?

Since I've sent in evidence & letters about my DDD - is that considered an informal claim? I really hate to lose 2 yrs of reto, but am really desperate to get this approved. I'm on SSD & it isn't much with a family.