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Question
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:
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