ptsd Any Chance Bva Overturns C&p? Lots Of Details...

[Bevo]

I am wondering what your thoughts on my chances are. I am going a little nuts waiting… I have an appeal that is currently 5 years old and at the VLJ. Under review is service connection for a Cervical Spine Disability and Shoulder Disability.

In 2008, I originally filed for hearing loss, tinnitus, lumbar spine, cervical spine, shoulders, PTSD, and left knee disabilities. This is my relevant claim timeline:

In 2005-2006 I was in Iraq. In 2005 I hit an explosive in a tank and slammed my head and back on the tank. I also carried heavy loads, causing pain in my back and neck. All of this has previously been determined “credible” by a VLJ. I was awarded the Combat Action Badge.

Timeline:

8/7/2006- Post Deployment Health Assessment, checked off backpain, among other things.

9/10/2006- Deployment officially ended

3/16/2007- PDHA – checked off backpain, muscle aches.

6/4/2007-Dallas VA records show vesting appointment, pertinent to back, I had the following symptoms: “Left flank, right shoulder, tenderness over right posterior shoulder, low back tenderness, upper back pain” and a diagnoses of “chronic left shoulder, right flanks pain.” I was prescribed (for my knee as well) MENTHOL 3.5%/CAMPHOR 0.2% GEL GM and Naproxen, 500MG.

I moved to Austin and was not seeing the VA because I did not feel I got adequate care.

3/8/2008 - Referral to Spine and Rehab Center by my PCP. Symptoms included “Cervical pain, upper back, shoulder”

3/15/2008 – Functional Capacity Certificate listed “cervicobrachial syndrome, thoracic pain, myalgia, back pain” and musculoskeletal issues.

4/21/2008- Austin Spine and Rehab doc completed LOD, which lists 2005/2006 Baghdad as place of Accident, and states “cervicothoracis trapezius myofascial pain, Cervical Pain”

4/2008-VA C&P, lumbar strain diagnosed, pain mentioned of rhomboids and right arm.

6/17/2008-Temple VA prescribes METHOCARBAMOL 750MG TAB, GABAPNTIN 400MG CAP

2009- VA approves Tinnitus, PTSD, denies hearing loss, back, knee

8/16/2012, BVA approves Lumbar Spine Strain, denies hearing loss, remands hearing loss in one ear, cervical spine, shoulders, and knee. Docket: DOCKET NO. 09-11 138A.

Specificly stated:

Lumbar spine:

“The Veteran reports that he began experiencing back pain while on combat missions in Iraq. Specifically, in his claim, he asserted that carrying heavy loads on missions and hitting an explosive caused his back pain. The Veteran's reports regarding injuring his back while on combat missions are accepted despite the lack of supporting documentation of any injuries in service treatment records. 38 U.S.C.A. § 1154(b)

Service treatment records do; however, include August 2006 and March 2007 post deployment health assessments in which the Veteran reported having back pain while deployed and currently.

After discharge from active duty, a March 2007 statement of medical examination and duty status also documented back pain. VA treatment records in June 2007 also showed that the Veteran reported back pain.

The Veteran again reported worsening back problems on a March 2008 Reserve annual medical certificate. In April 2008, the Veteran was seen of an initial consultation for back pain with a private physician.

The Veteran was afforded a VA examination in August 2008. The claims file was reviewed. The Veteran reported chronic low back pain since 2005 while in Iraq. After examining the Veteran, the examiner diagnosed lumbar spine strain, mild. However, no etiological opinion was provided.

The Veteran is competent to report injuries in service as well as continuing back pain since service. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (reiterating the point that competent medical evidence is not required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis).

Further, the Veteran has continually complained of pertinent symptoms following his discharge from his most recent period of active duty service, and his statements are credible as they are supported by the other medical evidence of record, specifically the post-deployment health assessments, follow up treatment records, and the August 2008 VA examination.

Therefore, given the Veteran's statements of in-service symptoms as well as pertinent symptomatology since his discharge and a current diagnosis from the August 2008 VA examiner, service connection for lumbar spine strain is warranted. Reasonable doubt has been resolved in the Veteran's favor where appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Remand:

The Veteran should be scheduled for a VA examination to determine whether any current left knee, cervical spine or shoulder disability is related to a disease or injury in service. The claims file and any relevant records in Virtual VA must be made available to the examiner for review.

The examiner should clearly delineate all disabilities of the left knee, cervical spine and shoulder. Thereafter, the examiner should opine whether it is at least as likely as not (a 50 percent or higher degree of probability) that any of these disabilities are related to service, to specifically include the Veteran's combat service in Iraq.

The examiner should presume that the in-service injuries and symptoms reported by the Veteran occurred. The absence of supporting evidence in service treatment records is not a sufficient reason for providing a negative opinion.

The examiner should provide reasons for the opinions and take into account the Veteran's credible reports of in-service injuries and symptoms and symptoms since service.

If the examiner cannot provide an opinion without resort to speculation, the examiner must provide reasons why this is so, and whether there is additional evidence that would permit the necessary opinion to be provided.

5/9/2011- AMC tries to deny all claims because I did not show to C&P I did not know about. BVA denies hearing, remands cervical spine and shoulders and specifically says:

Specifically, as noted in the prior remand, the Veteran has provided competent evidence that he began to have left knee symptoms during active duty in Iraq fromcarrying heavy loads while participating in combat missions in Iraq from 2005 to 2006. As he received a Combat Action Badge based on such service, his reports of left knee injury during such service are accepted despite the lack of supporting documentation of any injuries in service treatment records. 38 U.S.C.A. § 1154(b). The Board notes that the majority of the Veteran's statements have referred primarily to his left knee and back pain. Me has already been granted service connection for lumbar strain (claimed as back pain and thoracic pain). The Veteran was treated for these conditions, as well as for cervical pain or cervicobrachial syndrome, chronic left shoulder problems, scapula bursitis and muscle damage in 2007 and 2008. See. e.g., VA treatment records dated in June 2007 and June 2008; April 2008 private records from Spine and Rehabilitation Center. The Veteran also had service in the Army Reserves after his period of active duty ended in September 2006. Indeed, he requested a note for limited duty from his VA provider in September 2007, when he was noted to be status post left knee injury. There are also functional capacity certificates associated with the Veteran's military service dated in June 2007 and April 2008. Further, the Veteran was treated for complaints in the left knee, cervical spine, and shoulders or scapular area in 2007 and 2008. As such, it is unclear if there is any relationship between any current disabilities in such areas and the Veteran's active duty and active Reserves service.In this regard, in addition to periods of active duty, service connection may be granted for disability resulting from disease or injury that is incurred in or aggravated in line of duty during active duty for training (ACDUTRA), or from injury incurred in or aggravated in line of duty during inactive duty training (IDT). 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3304;{Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).

The Board notes that certain evidentiary presumptions apply to all periods of active duty service, including a presumption of sound condition upon entrance into service, a presumption of aggravation during service of a preexisting disease or injury that undergoes an increase in severity during service, and a presumption of service incurrence for arthritis, if such condition manifests to a level of 10 percent disabling If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered.

8/5/2013- C&P Exam. Diagnoses knee, and says at least as likely as not service connected due to complaining within one year.

Diagnoses Cervical Spine with Cervicis Splenius Syndrome Referred Levator Scapulae Pain. Myofascial Pain Syndrome. Total cervical ROM is limited at the 10% level, notes I have to lay down to alleviate pain on a daily basis, that it affects work, and is made worse by driving and typing.

BUT: Says Less Likely than not service connected and here is why:

Rationale:

The veteran records is silent for neck or shoulder complaints

on active duty. His exam today discuss issues associated with

multiple pain generators that is not clearly defined.

I did not find another exam that links service to his present

condition which on this exam Splenius Cervicis Syndrome

referred pain Levator Sacpula syndrome. Myofascial cervical

pain syndrome. Normal radiograph of the neck.

Opinion:

Current Splenius Cervicis Syndrome referred pain Levator

Sacpula syndrome. Myofascial cervical pain syndrome is not

caused by or result of active duty.

8/16/2013- AMC approves knee, 10%, denies Cervical Spine and Shoulders for the following:

“Your statements show (sic) you believe the condition arose due to service,

however, the records do not show a cervical condition arising in service or within

one year thereafter. Your recent VA examiner found it was less likely as not the

condition was linked to service because it arose more than one year after service.

They found the condition is splenius cervicis syndrome with referred pain levator

scapula syndrome, and myofascial pain syndrome.”

8/29/2013-Letter from BVA saying the claim is back at BVA and is being treated expeditiously.

9/9/2013-Date the VLJ actually began reviewing the case, according to IRIS (longest of my two remands so far took 35 days).

So, to me, I have a credible report of an in-service incident in combat, proof of combat, continuity of symptomology (complaints of muscle, back, shoulder pain within a year, followed by diagnoses at Austin Spine and Rehab Center), and now a diagnoses. Against me, I have the “less likely than not.”

Any guesses on my chances the BVA will take my side? If I lose, I also can get chiropractic records, a witness statement of hitting the explosive, and from my wife and family about my symptoms. But I don’t see how those add much that has not already been determined.

Okay, that was a lot. Any guesses?

[Bevo]

Sorry - double posted, please go to for discussion. If there is a moderator can you delete this>?