ptsd Chances At Bva And Next Steps?

[Bevo]

I tried to post a similar post yesterday but it has not shown up, so I will try again. Hopefully the same issue does not post twice.

I currently have two contentions at the VLJ and they are my biggest concerns. Not only are they the most painful, but I incurred a lot of medical debt when I came home getting them treated and a 10% in each category would push me from 30% to 50% using VA math (6 10%s). I have a kid on the way and this cloud of debt has been hard to shake. I used expensive chiropractic care and the Austin Spine and Rehab Center when I came home after I was not satisfied with the VA. Anyhow, here are some really basic facts of my case with excerpts from the VLJ previously and my C&P. I am curious what others think and what I should be doing to prepare in case I lose.

Timeline

Served in Iraq on Deployment June 2005-September 2006 and was discharged to the Reserves. In 2005 I hit an explosive in a tank. It was minor at the time, but I slammed my back and head into the tank really hard. I was a military video journalist and served in a lot of combat and earned the CAB. I also carried a lot of equipment (batteries, etc) on long missions.

August 2006 - Complete my first Post Deployment Health Assessment, pertinent to these claims, I checked off "back pain."

March, 2007 - 6 month PDHA, I check off back pain and muscle aches.

June, 2007, My wife convinces me to go to the Dallas VA. Pertinent to this, I complained of "Left flank, right shoulder, tenderness over right posterior shoulder, low back tenderness, upper back pain" (quotes direct from VA records) and was diagnosed with "chronic left shoulder, right flanks pain" The VA prescribed Naproxen Sodium for my knee and back as well as MENTHOL 3.5%/CAMPHOR 0.2% GEL GM. I was not impressed with the VA and moved to Austin in July.

In April, 2008, after seeing a private doctor, I also went to the Austin VA where a caseworker had me apply for benefits for hearing loss, tinnitus, PTSD, left knee, lower back, cervical spine, and shoulders. My prviate doctor referred me to the Austin Spine and Rehab Center. The Austin Spine and Rehab Center completed an LOD for me with the accident box saying "Baghdad 2005/2006" and diagnosing "cervicobrachial syndrome, thoracic pain, myalgia, back pain." Medical reports from Austin Spine and Rehab further diagnosd "cervicothoracis trapezius myofascial pain, Cervical Pain."

April 2008 I have a C&P exam for Knee and Back. Doctor diagnoses knee with no etiology, and diagnoses Lumbar strain, mild. He also mentions I complained of "rhomboid pain" and "right arm pain" as well as "stabbing pain to the scapula" but does not diagnose anything.

June, 2008 VA prescribes METHOCARBAMOL 750MG TAB for muscle spasms, and GABAPENTIN 400MG CAP due to pain.

April 2009, VA denies hearing loss, Knee, back, PTSD. Approves Tinnitus at 10%.

May, 2009 - I file Form 9. I begin seeing a chiropractor in Austin through 2011 when I had too much debt and insurance sucked too bad to continue. Other than that, I went on my marry way and kind of forgot about my claims.

June, 2011 - VA Approves PTSD at 10%, continues to work on Back, Knee, and shoulders.

August 2012 - BVA approves Lumbar Strain, Mild at 10%. Denies left hearing loss, remands right because it looked like I had a diagnoses, remands cervical spine, shoulder, and knee.

Excerpt from BVA Docket DOCKET NO. 09-11 138A:

"The evidence of record shows that the Veteran was recommended for the Combat Action Badge for engaging the enemy and being engaged by the enemy. On several occasions, the Veteran volunteered to video tape units that were in the direct line of insurgent activity. Thus, the provisions of 38 U.S.C.A. § 1154(b) are applicable..."

"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."

At this point I think the entire reason for the exam will be to get a diagnoses... The VA sends appointment requests to my old address, they go by, I get denied, I contact the VA, and the AMC denies... but the BVA remands again, saying it was because they don't have my reserve SMRs, which I believe the BVA was looking for an excuse to remand, which helps me out.

So May 2013 They deny my other ear hearing loss for some technical reason that basically looks like I have some hearing loss, just not enough. Okay, fine. But they also remand my Knee, Shoulders, and Cervical Spine again.

Excerpts from Remand Docket DOCKET NO. 09-11 138A:

"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 or 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...

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."

So August 5th I get a VA exam and the C&P Examiner turns it in within two hours. In his list of evidence, he does not start until 2008. He does not mention my 2006 PDHAs or my 2007 VA records for my back - but does for my knee. He finds the record of knee complaints and says "more likely than not service connected" because I complained within a year - on the SAME RECORD I MAKE MY FIRST UPPER BACK AND SHOULDER COMPLAINTS ON. Later that month the VA service connected my knee for 10%, so that issue is over. All that is left is cervical spine and shoulders.

VA Examiner on August 5, 2013 diagnoses "Cervicis Splenius Syndrome referred pain Levator Scapulae Syndrome. Myofascial Pain Syndrome." Total cervical ROM is 300 degrees, so that alone should get 10%. He notes that I have pain every day and my arm goes numb. He notes that I have to lay down with pillows propped up or I am stiff for days when in pain. He notes that it causes pain in driving and typing (I am a desk jockey now). He checks yes to impacts my ability to work even though I said it does not. All of this looks decent. Then he says "less likely than not service connected." Here is his rationale:

"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."

Misspellings are his.

On August 20th, the AMC sent me a denial. There were 3 contentions: Cervical Spine, left shoulder, and right shoulder. They wrote the exact same thing for all three:

"“Your statements show 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.”

I wrote a NOD to the AMC, but by the 27th they had sent it to the BVA. It was referred to a VLJ on the 29th and he picked it up for review on the 9th. So far my two most recent remands took 35 days and 10 days from the time the judge picked it up to dispatch. I wrote a letter (with waiver of sending back to RO) disagreeing with the AMC ruling on the basic contentions that:

1. The AMC did not follow the remand instructions to take into account my "credible" accounts of in-service injury and symptoms.

2. The C&P opinion and the AMC ruling are in contradiction to Dalton v. Nicholson, 21 Vet. App. 23 (2007) - (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of medical records to provide a negative opinion).

3. The C&P examiner noted not tenderness or spasms when that was not true. He actually hurt my shoulder pretty bad messing with it and I have multiple doctors saying I spasm and my wife says it spasms if she barely massages it.

4. The AMC did not take into account my symptoms and lay evidence.

5. The C&P examiner and AMC failed to use my 2006 PDHAs and my 2007 VA treatment records in their rationale, which had already been mentioned by the VLJ in his remand.

Okay. That is a lot. The longer I wait the more I get nervous. I got a letter from the BVA on the 29th saying because it has bounced back and forth, it would get expeditious treatment. It only has 2 basic contentions and seems to be taking as long as my remand in August 2012 that had 6... This all has recently given me time to finally research and I do have additional evidence I can present including:

1. My chiropractor who I saw in 2007, then again in 2009-2011 is willing to see me and write a letter. Especially if they deny saying I complained of rhomboids or upper back and not cervicis splenius since those are all grouped together.

2. Witness statement of Soldier in the tank behind the one I was in when we hit an explosive.

3. Wife and parents are willing to write sworn statements of the pain they have seen me in.

I have also requested a copy of my records from the Austin Spine and Rehab Center so I can go through those too.

My questions are. Does my appeal seem to stand a chance? Should I be sending more records while the VLJ reviews, or let him do his thing and save them in case I am denied? And should I be doing anything else to prepare for denial?

Thanks so much!

Bevo

[jbasser]

Who is representing you?

[Bevo]

Texas Veterans Commission. They pretty much said "oh less likely than not means you won't win." I've found several rulings by my judge where he rules for the veteran finding the "less likely" not probative in value because they didn't consider the vets assertion of in service incidents and symptoms (combat vet). I am lucky when I even get them on the phone too. So I mostly use them to look at updates.

[free_spirit_etc]

"Should I be sending more records while the VLJ reviews, or let him do his thing and save them in case I am denied? And should I be doing anything else to prepare for denial?"

I would think you would want the BVA to have any evidence that might help them decide in your favor.

As far as preparing for a denial, you would want to make sure you have raised all the issues you will want raised - so if the BVA doesn't address them you might be able to appeal to the Court.

[Bevo]

Free spirit I guess my concern is that if I send something in it will delay further. I feel case law is on my side and judge hindin seems fair. But your point is well taken. I think I will start gathering that evidence and if there's not a decision by the time it's gathered I will send it in. I'm guessing that the judge will either remand or approve like he did lumbar strain.

[71M10]

Send your evidence, I would prefer a grant that took a little longer than a quicker denial or remand.

[Bevo]

I called today and the BVA confirmed the judge pulled my file for review September 9th. I can start getting that info together but it will take a couple of weeks.

Hopefully the judge will rule in my favor during that time anyhow.

Since the lumbar strain was approved from the same incident and had no etiology (nexus based on symptomology) I am hopeful.