cervical strain Proceedings To Reduce Ratings, Must Read...38 Cfr 5.10

[rpowell01]

I have read a ton of stuff here on hadit. What is most important about this topic is I have read about how people are locked in at the 10 year mark and 20 year mark. Well attached with this topic is the true answer, thanks to JBasser for pointing me in the right direction.

There is a 5 year PROTECTION and I have YET to read a 10 year PROTECTION in this regulation. This attachment is the REAL DEAL and it needs to be added to hadit some how some way for others to be able to find it. I have highlighted many important aspects of the 5 year protection rule and the process of the Reduction of Ratings....

I will let everybody know that that ONE C&P Exam CANNOT be a basis for a REDUCTION. By this regulation the VA must look at the OVERALL HISTORY. So, in my case the VA wants to reduce my ratings of Cervical Spine and Lowback. On the decision letter they are basing this ONLY on the C&P Exam. Sorry but this is ILLEGAL and they CANNOT proceed in doing this. They are changing my true diagnostic of Cervical Strain to Cervical DDD and Lumbar Strain to Lumbar DDD. Most people don't know the DC they put on these letters are not the real DC, a lot of times. Example: The my original DC on the Decision Letter in 1996 showed "Cervical Spine Pain" but the VA computers actually show "Cervical Strain", see the difference. So, just by this alone it shows that my issues are actually getting WORSE not better. History actually shows that just 4 years ago I didn't have these problems like I to currently have and I am not just talking about the radiculopathy. I am talking about waking up every morning and it taking me 3 hours to get out of bed because my neck and back are in a lot of pain, it didn't show me taking 3200mg of Gabapentin and 300 of Tramadol per day, it doesn't show that I was getting treated for radiculopathy in my arms and legs, ALL like it is today. Again OVERALL HISTORY.....

So, the VA MUST look at the OVERALL HISTORY of the medical issues at hand and NOT just on one C&P Exam. BTW all my previous C&P exams I have had from 2010 to now, actually 3 of them for my neck and back, didn't show anything getting BETTER....

Now let me tell you this true story that happened today. I was on the phone with JBasser and he swore up and down that there is a 5 year rule. So, after I left of delivering my NOD and Request for Hearing letters I decided to drop in over at the State of Florida Veterans Service Office. I talked with an officer there and I asked him about the 10 year rule ( I said 10 because that is what I have heard) about being locked on on ratings. His reply was "You are locked in at 20 years for ratings and 10 years for service connection." I come home and actually found the regulation online. So, this will tell you that some of these VSOs don't know much of nothing and are worse than the VA raters themselve....Oh, but he did say if I can get Dr. Bash to do a DBQ on my neck and back that should be sufficient. Well I am going to hopefully get them done by Dr. Bash whenever I fly up there and I am going to use it at the hearing. But most importantly I will have my copy of 38 CFR 5.10 "Proceedings To Reduce A Rating"

This policy might be on here but I can't find it....

Document deleted at request of admin...

Edited June 24, 2013 by rpowell01

[broncovet]

To add, the VA determines if they think the medical evidence is probative. Some factors are the C and P examiners qualifications, did he give a medical rationale, were the records reviewed etc. Except for PTSD, it should not matter if the doc is giving an opinion at a c and p exam or not.

[rpowell01]

Vync

Its based on ONE C&P exam and other evidence. The RO picks and chooses certain evidences and try to use it against you. But, the table will be turning back on them in my case. For instance, they used ONE MRI I had in the private sector in 2007 against me. But that MRI actually shows part of the progression that I am going through now. How? Because whenever I left in the Army in 1996 I had one last MRI, it really didn't show much in my neck and lumbar. The first MRI I ever had after leaving the Army was that one in 2007. I have dealt with the muscle spasms and neck adjustments all those years until headaches became a huge issue. So I see my doctor who ordered the MRI. That MRI showed mild Spondylosis throughout multiple levels of my Cervical Spine.

See that alone shows that my neck was getting worse. Then in January 2010 my neck just decided to do its own thing. After that I had MRI from the VA that they said showed bulging disc and arthritis throughout me neck. I had another private MRI in 2011 because something wasn't right with all the tingling in my hands and pain in my arms and chest muscles. I heard how the VA lowballs MRI reports a lot of times. So, that MRI actually showed 3 herniated discs causing FORAMINAL STENOSIS....

I have had TWO other MRIs since then from the VA and they do show foraminal stenosis in my neck. In my lumbar they are now reporting foraminal narrowing causing stenonsis at L5-S1....

Funny how the table it going to be turned on the Regional Office because all those MRIs doesn't show one single evidence that my neck nor my lumbar is getting better, actually they are showing to get worse. In 2010 I didn't have much problems with my lumbar, just the normal spasms but in 2012 I had to visit the ER in Tampa because I couldn't walk. My legs were in miserable pain and felt like jelly. From that time to now I currently have pain in my toes and feet...

This is just one example how I am going to turn the table on them. I am actually going through each paragraph and will pull evidence on them.

They don't realize I have a huge binder and in that binder I keep ALL my medical records, private and the VAs.

So, to answer your question, yes they can use ONE C&P Exam but only if they have other evidence. But the evidence they are using actually DON'T show improvement. Its something they are using just to use so they can use it with the ONE C&P Exam. But I have had 3 C&P Exams on my neck and back since 2010 and NONE of them show FULL ROM, which is what they are basing ONE C&P Exam on. This is a NO NO and I MUST be afforded another C&P Exam.

I hope you understand....The tables will be turned back on them in the hearing...

If you want my opinion, I truly believe they just want Dr. Bash to examine me and write a DBQ. That is my opinion....This is what I am getting out of all the reading. They are not really going against Dr. Bash, they just want him to exam me and do the DBQs...This is what I get out of read the Decision Letters. You have to see what they wrote on the decision letter. Its like they are "hinting" to Dr. Bash on the things the C&P examiner stated. I can't explain it but this is what I am getting from it. Funny but true.

Now, will say this, the C&P examiner quoted "DeLuca" which is a LAW Case in the C&P exam report. I am filing a complaint after this is over and done with her Supervisor and whoever else I can file a complaint with. She is no lawyer and she really doesn't have any right quoting a case to anybody and for her to advocate an attorney kind proves what she was doing and wasn't doing her job. She can get into trouble for doing that. You are not allowed to give ANY legal advice to anybody, that is strictly against Federal and State Laws if you are NOT an attorney. Since she wrote that on paper for the Regional Office to see, she then practiced law. Trust me, I seen people go to prison for this where I use to work at.

These C&P Exams isn't to HELP gather evidence FOR the veteran but actually they are used to gather evidence for the Regional Office against the Veterans....

Carlie,

Sorry for the document I just deleted it...Its on the internet is why I posted it...

Edited June 24, 2013 by rpowell01

[carlie]

If you want my opinion, I truly believe they just want Dr. Bash to examine me and write a DBQ. That is my opinion....This is what I am getting out of all the reading. They are not really going against Dr. Bash, they just want him to exam me and do the DBQs...This is what I get out of read the Decision Letters. You have to see what they wrote on the decision letter. Its like they are "hinting" to Dr. Bash on the things the C&P examiner stated. I can't explain it but this is what I am getting from it. Funny but true.

Now, will say this, the C&P examiner quoted "DeLuca" which is a LAW Case in the C&P exam report. I am filing a complaint after this is over and done with her Supervisor and whoever else I can file a complaint with. She is no lawyer and she really doesn't have any right quoting a case to anybody and for her to advocate an attorney kind proves what she was doing and wasn't doing her job. She can get into trouble for doing that. You are not allowed to give ANY legal advice to anybody, that is strictly against Federal and State Laws if you are NOT an attorney. Since she wrote that on paper for the Regional Office to see, she then practiced law. Trust me, I seen people go to prison for this where I use to work at.

These C&P Exams isn't to HELP gather evidence FOR the veteran but actually they are used to gather evidence for the Regional Office against the Veterans....

Carlie,

Sorry for the document I just deleted it...Its on the internet is why I posted it...

rpowell,

How about posting the Reasons and Bases on the decision/s.

The Deluca ruling - from what I remember related to pain, so perhaps

that's why Deluca was mentioned.

[rpowell01]

Carlie and everybody else, don't worry about it, I have it covered. The DeLuca has to do with the pain because she said I had Full ROM and I don't have arthritis in my spine so she mentioned DeLuca. She is a doctor and not a lawyer and there is no need for her to practicing legal work.

Anyway I have overwhelming evidence from every MRI I have had since 2010 that proves that I have Spondylosis, DDD and DJD in my whole spine. Believe it or not they are ALL different. DJD is actually called Osteoarthritis. I have a book written by a medical doctor and talks about the differences of DDD, Spondylosis and DJD. They are different but the medical community kind of doesn't see them in being different. I am going to use things from this book as part of my evidence also. I know I can't diagnose myself but I am allowed to use anything already written by a doctor...

I have learned a great deal on Hadit since I first got on here back in November (I think that was the month) of 2010. You guys and gals have shown me what is needed and what is not needed.

Here is what the Decision Letter reads on the REASONS why they want to reduce me on my neck and back. I am going to write in bold letters showing you how I have evidence to disprove what they wrote. Actaully you might laugh at what they wrote because what they wrote is NOT the OVERALL HISTORY. Remember you must use the OVERALL HISTORY and Bay Pines RO isn't. This in itself is illegal.

The REASON on both the Cervical and Lumbar are the same so I will just list the ones for the cervical:

Evaluation of the Cervical Spine degenerative disc disease, which is currently 20 percent disabling, is proposed to be decreased to 0 percent.

1. Private treatment records from Dr. Callahan dated April 11, 2011 through July 19, 2011 show treatment for your cervical spine condition.

Okay so he treated me because the VA refused to, actually Bay Pines refused, to treat me for the radiculopathy I have in my arms. I had submitted an MRI report to my VA PCP in Sebring, FL that show WHY I was having pain in both my arms and tingling in my hands. Bay Pines refused to treat those symptoms and some Doctor by the name of Graham denied me to go see someone in Pain Management. So, my PCP referred me to Dr. Callahan. It was his OFFICE that did the first epidural I have ever had. The epidural did take away the CONSTANT tingling in my hands but not the pain in my arms and chest muscles and TINGLING I get whenever I raise my arms above my head...So, this is even NOTED in Dr. Callahan's records of me. He was puzzled why I was having right arm pain when the MRI showed LEFT foraminal stenosis. I am also puzzled by this myself but again MRIs are actually a THEORY and not 100% fact. Dr. Callahan also wrote a message to my VA PCP in Sebring that he thought I needed a dynamic/upright cervical MRI because he believes this would tell why I am having so many problem. He told me that the dynamic/upright MRI is a TRUE MRI because what is NOT taken into account on the incumbent MRI is the GRAVITATIONAL FORCE that pulls DOWN on the spine. So the dynamic/upright MRI is where you sit or stand while getting the MRI. He stated to me that he believes that me standing and sitting is causing a lot of my pain because whenever I lay down on my back the pain goes away after about 15 minutes. But, I have YET to receive this type of MRI and I have yet gotten my VA PCP and pain management to order this type of MRI. Its only $500 for my cervical spine and if I can come up with the money I am going to go to my private PCP to get a prescription order for it. But I first must come up with the money. I was going to have it because of backpay the VA is owes me for a dependent which was approved but I now have to use it to fly to Maryland to see Dr. Bash...

2. Private treatment records from, Florida Hospital Wauchula dated August 13, 2007 show the results of your MRI of your cervical spine.....

And I don't see the Regional Offices point in this one. This was the very first MRI I had since I got out of the Army in 1996. I was actually getting treated by my private PCP and a chiropractor from 1996 to 2008. I had a lot headaches from the time of the injury in the army and I had to see the chiropractor a lot because of them. In 2006 and 2007 I started having worse headaches and I couldn't figure out why. My neck was tighter than a 2x4 and something was just right in my neck. My private PCP ordered an MRI on my neck and the results of it showed Spondylosis on multiple levels on my neck and bulging discs on multiple levels. So why did the RO mention this ONLY ONE MRI is beyond me. I am think the C&P Examiner DIDN'T read my other FOUR to FIVE MRI results I have had since 2007 that shows the conditions were PROGRESSING. Yep you heard it hear first, the radiologist just in September 2012 stated that my Cervical, Thoracic and Lumbar spine were in fact PROGRESSING. The medical term for PROGESSING/PROGRESSION means "getting worse"...Any way, every MRI actually shows Spondylosis, DDD, DJD (Osteoarthritis), bulge disc or THREE herniated discs. Each MRI is different depending on the radiologist. If you ever had MRIs you know that every Radiologist is actually different. One might say yes he has a broken bone while the next MRI the radiologist states no he doesn't have a broken bone. But all these radiologist are actually concurring that I have arthritis one form or another. BTW those THREE herniated discs were into the foramina causing stenosis but since they were not into the spinal cord surgery was out of the question and still is. So, just by the MRIs alone shows that my contentions of my Cervical, Thoracic and Lumbar are getting worse, not better. BTW the C&P examiner stated that I don't have Arthritis whatsoever in my spine. This for one tells me she didn't even read ALL the MRI reports and these MRIs reports actually should discredit her whole C&P report because she stated 1. I don't have arthritis. 2. which is why she said I have FULL ROM....This will show that she didn't do HER homework in class nor on this C&P report. Next...

3. VA outpatient treatment records from, Bay Pines VA HCS show complaints of and treatment for cervical spine pain.....Okay so not once did they mention the treatment I am CURRENTLY receiving from the Tampa VA and NOT once did they mention the treatment I am currently receive from Tampa VAs Pain Management. Why did they state this is beyond me. I have no clue. I do know that the Pain Management in Tampa TRIES to tilt me neck to the left and right but I have pain that shoots down my arms. I also have A LOT of pain in my neck whenever they do this. Heck I can't even bend my neck backwards anymore and have a hard time at home in doing this. The bones fill stiff for some reason trying to bend my neck backwards. The Doctor who treats me is ONLY an anesthesiologist not a NEURO Doctor and he even had to get the Neurosurgeon to look at me whenever I showed them I can't bend my neck backwards. Any way I am getting off course here. So, I have treatment records from the Tampa VA and from Bay Pines SYSTEM. I use to see my PCP in Sebring and after that Dr. Graham REFUSED for me to have any type of treatment for my radiculopathy I filed a complaint with the Patient Advocates Office in Tampa. After they told me who Dr. Graham was and that he was a Neurosurgeon in ATLANTA because Bay Pines didn't have ONE Neurosurgeon on staff at Bay Pines and that was the reason why I was getting denied. Didn't make sense to me, you got Neurologist in Bay Pines because the one there was the first to diagnose my radiculopathy in my arms. So, I WON my case by filing a complaint with Patient Advocates Office and WE all agreed to the VA paying for Physical Therapy. I was wanting to try something and anything at that point. The pain was God awful in my arms and chest. The Physical Therapy went on for 4 weeks, 3 times a week in December 2011. In February 2012 my neck began to sound like "Rice Krispies" and sand or a bag of little rocks. Today it still sounds like that and it constant "pops". If you were next to me and heard it you would probably have a tear come out of your eye and you would cringe because its that bad. So, why would they even bring Bay Pines but NOT Tampa? BTW I had another EMG in 2011 that showed a diagnosis of Cervical Radiculopathy in my arms....

4. C&P Exam I had in May 2013. The C&P examiners stated I had NO limitations of motion or painful motion of my spine whatsoever. The examiner confirmed your diagnosis of mild DDD without ARTHRITIS. The examiner opined that your condition does not impact your ability to perform physical or sedentary types of employment. Then it goes on and talks about the ROM and the 38 CFR 4.40 and 4.45.

I could be wrong here but doesn't this appear as if I HAD TDIU already because the "The examiner opined that your condition does not impact your ability to perform physical or sedentary types of employment."? Me being able to work on not shouldn't have ANYTHING to do with a reduction of ratings if I am NOT currently receiving TDIU. There is NO legal ground to use this against anybody who does not receive TDIU. Yes I applied for IU and this should have ONLY been for IU and NOT my current cervical and lumbar ratings. Why? Because the DBQ forms for cervical and lumbar doesn't have ANYTHING on them about if a person can work or not. Its only on the TDIU DBQs that have this. They are basically saying they want to reduce my ratings because the C&P examiner stated I can work. Sorry Charlie but this is illegal and you cannot reduce a rating on somebody because the C&P examiner stated you can work if the Rating is NOT TDIU. Ratings are based on certain things and anything other that TDIU has nothing to do if a person can work on not. Even 100% scheduler has nothing to do if a person can work or not. If this is the case then all those raters/workers at the VA who are 100% needs to have their ratings reduced.

Here is the fun part. She mentioned DeLuca which is the DeLuca vs Brown which is the functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups as cited in DeLuca v. Brown. So, NOT once, I will state this again did she even ask or even mention to my about having any flare-ups or about pain or weakness. Funny thing is I have a limp 24/7 because of the pain in my back. Whenever the back "flares-up" my limp because huge. This is called GUARDING because people have to walk like this to guard their backs and its a way so you can walk without causing it to hurt even worse. In 2010 I had C&P examiner who stated that I have a "limping gait". I also walk like this because of the pain in my right leg, feet and toes. Now that I have pain in my left leg, feet and toes I can't even walk a straight line anymore. So, where ever I go I limp and as my back hurts worse so does my limp. There are days I get out of bed and my back (actually) my whole spine is in terrible pain and if I measure the pain they are a 12 on a scale from 1-10. Yes 12 because that is how bad the pain is. So, whenever I had my C&P exam this day it was just one of those mornings where my back was really bad. I limped into the exam room and I limped out and to my car. Now, I do know they have video recorders in the lobbies and outside that VA center because its brand spanking new. Maybe I should see if I can get them to get me a copy of that video of that day but I guess I would need a judge to sign off on it? Any way, this lady is basically saying with the DeLuca that I don't have pain or flare-ups of any type. So, i am going to present my 3 previous C&P exam plus whatever Dr. Bash does to disprove this C&P examiner was "inaccurate" in her data reporting. I am also going to present my wife as a witness because she was in the room and she knew was being done and what I was able to do and what I was NOT able to do.

So, there you have it, these are the reasons why they are "proposing to reduce".....I have done my homework and I have pulled out the ole' binder and I writing my rebuttal to the C&P Exam. The biggest thing I am intrigued about is how the C&P examiner stated that I DON"T have ARTHRITIS and the Regional Office believed that statement. Sorry, but ONE C&P Examiner isn't the GOD of Doctors and Radiologist who have stated otherwise on reports...I find it very funny that there are people at Bay Pines Regional Office who actually believed her in saying I don't have arthritis...Sorry for restating that, I am tickled by it....

Again, I have learned a lot from all you guys and gals. I have done my homework since last Friday and I am still doing my homework. I have learned to use that energy of anger and redirect it in doing my homework. I keep ALL my records, VA and private. I have a binder of everything with backup copies on two hard drives. I was told in the Army before I got out to make copies of all my medical records because things do "disappear" and I did just that. I haven't stopped since then. Heck I use to make copies of my file at work and realized one day that there wasn't nothing in it for me to make copies. LOL

Anybody can chime in and I am up for other suggestions....

Edited June 27, 2013 by rpowell01

[rpowell01]

One last thing and I am done for awhile. Read this:

38 CFR Book C, Schedular of Ratings; 4.73 - Schedule of Ratings - Muscle Injuries

We know they are the same for the cervical and thoracolumbar spine.

Forward flexion of the thoracolumbar spine greater than 30 degrees but not

greater than 60 degrees; or, forward flexion of the cervical spine greater

than 15 degrees but not greater than 30 degrees; or, the combined range of

motion of the thoracolumbar spine not greater than 120 degrees; or, the

combined range of motion of the cervical spine not greater than 170 degrees;

or, muscle spasm or guarding severe enough to result in an abnormal gait

or abnormal spinal contour such as scoliosis, reversed lordosis, or

abnormal kyphosis.......................................................................................................................................... 20

The key words here are OR. It doesn't make a difference what your ROM is BECAUSE or "muscle spasm or guarding severe enough to result in an abnormal gait

or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis"

I have been diagnosed with reversed lordosis on just about all my MRIs. So it doesn't make a difference on what my ROM was in the first place on my cervical spine. The word OR means just that, OR.

Its funny how I downloaded the 4.73 and just happened to see this. Gosh this is going to be GOOD, GOOD, GOOD at the hearing...

That isn't a smiley for being happy. The reversed lordosis is dangerous and I pray it doesn't get worse because with it in the cervical spine I can drop dead just like that because of it...And believe me it has gotten bad and its getting worse with each MRI.

Edited June 27, 2013 by rpowell01

[carlie]

rpowell,

Usually the rating criteria is included in the decision,

did they not include, the criteria above in your decision ?