tinnitus Fixing Previous Claims And Appeals Due To Inadequate C&p Exams And Cues

[elcamino_77us]

I was discharged Nov1995 and Finally got my BVA decided in the Fall of 2008. My VSO was The American Legion and at the end they sent me a letter stating that they had help me as much as possible.

I had surgery on my right knee in Aug 2012 and decided that would be a good time to file for an increase. After going through the Georgia Dept of Veterans Services and filing my claim, I began researching here and in other fourms.

What I found amazes me. Yes,The American Legion did a good job but at the same time, they really blew it.

In making their decission, The BVA relied on information from an inadequate C&P Exam. Plus, they (The BVA) changes the wording of the C&P examiner from within to without:

“In summation there is some progression in the Vets L/S strain and degenerative arthritis there, but within any neurological disability.”

To:

“In summation there is some progression in the Vets L/S strain and degenerative arthritis there, but without any neurological disability.”

This completely changed the meaning of the examiners statement. The word “within” used in this particular situation meant to include or encompass all of the neurological disability, in this case bilateral spinal stenosis to the L/S strain and degenerative arthritis.

The BVA decission also stated in conjuction with my Left Knee Claim:

"appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001)."

Last week, I had surgery on my Left Knee. I do not have as of yet, a post-op report from the doctor. According to my wife, the doctor stated that most of the damage in my left knee was the result of an old injury. The only injury that I have had to my left knee was while I was stationed in the Marine Corps.

My C&P Exam of 1996 did not include Deluca, My C-File was not view, The Examiner stated to me that he had looked at my x-rays and could not find anything wrong. At the end of the exam, he sent me for x-rays as he stated he didn't have any. All of my complaints of pain or my statements concerning military treatments were ignored. The doctor basicly stated I was a quack.

I have also found the medical reports sent in 3 1/2 months after my discharge and a year later with a diagnosis of dengenerative Arthritis of the Spine were ingored.

I believe there was a CUE committed as well with my first Audio C&P as I mentioned I had Tinnitus along with my hearing loss. I was service connected for the Hearing Loss but as I didn't know the Tinnitus was seperate, I wasn't service connected for that until 2010. According to what I can find, that would fall under Failure to Fully & Sympathetically Develop Claim.

This is just the tip of the ice burge.

OK, After reading all of that, can anyone give me some good advice.

I'm not sure how to handle the BVA and both their usal of a C&P exam that was I believed, previously considered inadequate or their deliberate changing of the examiners wording to deny an increase.

What did the BVA mean when they stated: "appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001)." And what does that mean for me still trying to service connect my left knee with my current claim?

Is my statement concerning the Tinnitus being a CUE, correct?

Thanks

Bill

Edited May 12, 2014 by elcamino_77us

[elcamino_77us]

First, I'd like to say Thanks!!! for the help that you are providing!!!

It seems to me the BVA might have made some typos or wrong statements that certainly change what the facts were, however,

“From what I've been able to figure out, yes the IMO failed to provide a nexus, mainly from what I've read, it lacked a Current Condition. “

and I think that was the problem here.

Yes, I agree, unfortunately

“The evidence showed that I had arthritis when I was discharged. I'm going to have to check to see is the documents were ever used by the VA for rating purposes. “

Good because that evidence is what the VA needs, and also a confirmed diagnosis of the arthritis and documentation of chronicity.

I checked all of the SSOC's and decisions I've got, There was no mention of the Documents. I did find two places they were referenced, one being my BVA Hearing and the second being by a statement form submitted by my VSR. Once my files are back at the Atlanta RO, I will schedule a appointment to look through my C-Files for them along with a couple of other files. I did see where due to an IMO, I was connected for Long Standing DDD. Wouldn't that also Imply that the Arthritis had been there for quite a while. I would think so.

I had stated earlier about a couple of questions concerning CUE's, here goes.

During my service, I lost part of hearing of my left ear which led to being removed from my MOS. My hearing baseline had to be reset and I was also treated for tinnitus. During my C&P of 1996 for Hearing, it was noted in my report that I also had tinnitus. I did not know that tinnitus was a separate claim at the time. I was service connected for hearing loss at a 0% from the date I was discharged. In 2010, I learned that Tinnitus was a separate claim so I filed for it along with hearing loss from my right ear. The claim was filed and a couple of months later, I received an increase in my deposit even-though the claim had not been finalized. I not sure that it ever has been finalized. I am listed officially as 10% Tinnitus from back in 2010 when I filed the claim.

I filed a Freedom of Information Act to get a copy of my records to see what all they had. When I started going through all of the paperwork, I ran across the 1996 C&P Audio Exam which included the statement about the Tinnitus which I did not know about.

Now the Question: Would this be a CUE under Inferred Claims or would I best be served by an EED?

One last question for the evening.

As I stated, I had gone through a PEB right before I was discharged, there is a good chance that I will end up with a Medical Discharge as medical evidence was left out of my Med Board and PEB. As I stated, I had lost my MOS due to my hearing loss which was left out among other things. I was told that the VA would have to completely re-do my claim from the beginning if that happens, does anybody know if this is correct?

Again Thanks fo rall of the Help

Bill

Edited August 7, 2013 by elcamino_77us

[elcamino_77us]

Good Afternoon,

During my second appeal, the BVA ruled that consideration of 38 C.F.R. 4.40 and 4.45 had never been accomplished in my present case. 38 USCA 5103A & 5103A(d) were also used. My case was remanded back to the VARO again stating that the RO should take into consideration 38 C.F.R. 4.14, 4.40, 4.45, 4.49 and the holding in DeLuca v. Brown,

From everything I've read, "Green v. Derwinski," "Nieves-Rodriquez v. Peake" and 38 CFR 4.2, that would made my first two C&P's Inadequate and inadmissible to evaluate a veteran's disability.

Another words, if a exam or report has been ruled Inadequate, that record cannot be used to evaluate a veteran's disability. Is this a correct statement???

Thanks

Bill

Edited August 11, 2013 by elcamino_77us

[elcamino_77us]

Updates:

The VA had sent me a letter requesting more information before they sent my case to the Raters. I went ahead and sent them the information concerning my left knee scoping and what the Doctor had found. I also thought it would be a good time to see if they would CUE themselfs on my BVA of 2008 by pointing out the mistakes/misquotes/deliberate misquotes. I ensured that they didn't have to look to hard for them by suppling them with the necessary documents so they could see for themselfs. The following is an excerpt from my reply:

The 2008 BVA Decision also referenced part of my 1996 C&P Exam to decide part of my case. The 2005 BVA (Encl 12) remanded part of my case back to the Regional Office for failure to take into consideration DeLuca.

The veteran also seeks a compensable initial rating for his service-connected lumbosacral strain. This disability is rated based, in pan, on the limitation of motion of the affected joint or group of joints. 38 C.F.R. § 4.7la, Diagnostic Code 5237 (2005). Regarding orthopedic disabilities, the United States Court of Appeals for Veterans Claims (Court) has held that criteria which provide a rating based on limitation of motion require consideration of 38 C.F.R. §§ 4.40 and 4.45 (regulations pertaining to functional loss of the joints due to pain, etc.). See DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, to the extent possible, the degree of additional disability caused by functional losses, such as pain, weakened movement, excess fatigability, or incoordination, should be noted in terms consistent with applicable rating criteria.

However, such has not been accomplished in the present case…

The doctor that conducted my 1996 C&P Exam never looked at my Service Medical Records and refused to take into consideration any of my medical complaints or statements concerning prior treatments. My understanding is that by failing to do so render’s his medical opinion as an inadequate opinion. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). In the case Bielby v. Brown, 7 Vet.App. 260, 268 (1994), an examiner failed to read the claim file, and the Court held that an independent medical examiner’s opinion is without evidentiary value where he failed to review the veteran’s record, and thus had no basis of fact or data upon which to render an expert opinion. Therefore, the 2008 BVA should have never used any part of my 1996 C&P Exam to decide any part of my case. This, I believe, constitutes another CUE.

Due to the new info, I meet with the Doctor last week who completed my C&P back in January. She had called me in to do a follow-up as requested by the raters for my left knee and sinusitis. She used the diagnosis from my MRI prior to my surgery, but stated that she could not use the Doctors Notes from the actual surgery as they were just findings and that you had to be careful about putting too much in there or the raters would just ignore it. She also had x-rays taken of my nasal pathways for the sinusitis claim which is actually to serice connect my sleep apneia.

Overall, I think it was a good move and could be very helpfull. I not sure about the Doctor not using the post surgery notes and how it will effect me.

Thanks Bill

[elcamino_77us]

Update and questions:

​I received my "Brown Package" unexpectedly. The VA decided to finally service connect my Left knee after all these years at 10 percent. My right knee stayed the same at 10 percent. I was also service connected for Radiculopathy bilateral as well at 10 percent Left & Right. But the VA refused to CUE themselves.

In rating the knees, the VA lumped everything together for both knees. I'm not sure what the code is as they didn't state one.

Service connection for medial meniscus tear, left knee; chondromalacia; arthritic changes has been established as directly related to military service.

An evaluation of I 0 percent is assigned from September 18, 2012. This is the date we received your reopened claim which is later than one year of our decision to deny service connection for a left knee disability on July 17, 2008.

Please note: The VA examination of January 2, 2013, shows you could not complete repetitive testing due to pain. Therefore, additional functional impairment or range of motion on repetitive testing could not be evaluated. Additionally, the examiner diagnosed enchondroma of the distal femoral diaphysis. This condition was acknowledged and considered in the Board of Veterans Appeals Decision of July 17, 2008, for which service connection was not established. Therefore, it is not included in the current evaluation.

We have assigned a 10 percent evaluation for your knee condition based on:

• Painful motion of the knee. (38 CFR §4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Since you demonstrate painful motion of the leg at the knee, the minimum compensable evaluation of 10 percent is assigned.)

• X-ray evidence of traumatic arthritis along with any limitation of motion of the joint

The provisions of 38 CFR §§4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown and Mitchell v. Shinseki have been considered and applied under 38 CFR §4.59.

A higher evaluation of 20 percent is not warranted for limitation of extension of the knee unless there is extension limited to 15-19 degrees.

A higher evaluation of 20 percent is not warranted for limitation of flexion of the knee unless there is flexion limited to 16-30 degrees.

A higher evaluation may be warranted if:

• Flexion is limited 45 degrees or less; and,

• Extension is limited to 10 degrees or more.

A higher evaluation of 20 percent is not warranted for traumatic arthritis unless there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.

Both knees were rated similar so diagnosing one rating would help understand both.

My Left knee flection was measured at 105 with pain starting at 0.

In my thinking, the knee should have been rated under the following codes:

5259 Cartilage, semilunar, removal of, symptomatic 10%

5003-5260 (or 5010-5260) should be used to assign a 10% if not 20% rating for the functional loss of use due to not being able to complete repetitive-use testing due to pain which would fall under 38 CFR §§4.40, and 4.45, and 4.49. I also wear a knee braces constantly.

As I had stated in a previous post, the VA had misquoted two doctors in my 2008 BVA which would have to a service connection of Bilateral Radiculopathy from my date of discharge. I was treated twice while in, it mentioned in my original notice of disagreement and within my testimony in front of a 2002 BVA.

Our decision dated April 30, 1996, was correct in not granting service connection for a neurological condition as there was no objective medical evidence showing a diagnosed neurological condition as directly related to service, as associated with your lumbar spine, or as a presumptive disability which had manifested itself to a compensable degree within the specified timeframe. This decision was upheld in the Board of Veterans Appeals Decision (BYA) of July 17, 2008, which concluded there was no objective medical evidence to warrant service connection for neurological manifestations related to your lumbar spine disability. Please note: You indicated that the cited BYA decision misquoted findings from the VA examination of April 3, 2006. Regardless of any misquotes in the BYA decision, the examination of April 3, 2006, is completely negative for a diagnosed neurological condition of any kind.

Apparently they are trying very hard not to give me a EED for this using the fact that I didn't have a DX. I'll have to check my records but I thought I did. Also wouldn't treatment while active duty be enough?

They also only gave me a Mild Rating of 10% even though the C&P Doctor of 2013 marked the C&P Exam at Moderate Levels which would be 20%. My MRI of 2006 showed:

DIAGNOSTIC AND CLINCAL TEST RESULTS:

1. Thoracic spine films - Mild degenerative changes with spurring in the mid to lower thoracic spine.

2. Lumbar spine films - Degenerative changes of the lumbar spine with spurring, and minimal old compression of L3

3. CT of the lumbar spine - T12/L1 mild broad based disc bulge without significant narrowing of the foramen.

L1/L2 Disc bulging without significant foraminal narrowing.

L2/L3 Broad based disc bulge and bilateral facet degenerative change.

L3/L4 Broad based disc bulge. bilateral degenerative change, moderate central stenosis.

L4/L5 Broad based disc bulge. Bilateral facet change and mild to mod. central stenosis.

L5/S1 Broad based disc bul e. no significant foraminan!arrowing.

4. Left Knee - Calcified enchondroma or bone infarct distal left femur. Ossific density posterior to the proximal left fibula which could be due to artifact or old trauma.

DIAGNOSIS:

1. Lumbar 4/5 and 2/3 minimal disc bulging 2002

2. Multiple levels of bulging disc in the low thoracic, thru out the lumbar and sacral 1 spine with varying degrees of central stenosis 2006

3. Degenerative arthritis with spurring in the thoracic and lumbar spine. 2006

4. Bilateral Retropatellar pain syndrome 1994

5. Left cortical lesion of the distal left femur. MRI 1995, x-ray 2006

So if the C&P report of 2006 showed spinal stenosis in the Diagnosis block, wouldn't that also point to a DX of Radiculopathy?

Also part of her report:

In 1994, he had radiation of midback pain to both lower extremities and bilateral feet with certain movements.

He has numbness in the low midback to the left leg, right foot numbness that is constant now.

Repetitive exercises were not attempted secondary to the patient's continued complaints of back discomfort.

There has been some progression in L4/5 to mild to moderate central stenosis........In summation there is some progression in the Vets L/S strain and degenerative arthritis there, but within any neurological disability.

Thanks

Edited December 22, 2013 by elcamino_77us

[meghp0405]

you had mentioned earlier that all your diagnosis/disabilities were not included in your MEB. Dealing with this quite often, the MEB will only review and evaluate those disabilities that prevent you from continuing military service.

[elcamino_77us]

meghp0405, I understand what you're saying and where you're coming from. However, hearing loss and bilateral tinnitus for a military musician is a career ending disability especially when Occupational Health removes you from your MOS. Also you have to take into consideration that Degenerative Arthritis of the Spine is also a career ending disability for a Marine. Secondary Symptoms of said Degenerative Arthritis of the Spine, i.e. Bilateral Radiculopathy should have been listed as well.

Thanks for your Help and Honesty, it helps me better learn the system.

Bill