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

[Bevo]

Also - my PTSD is mostly anxiety, though it manifests with anger and emotional detachment sometimes. I also have some TBI symptoms and a positive screening for TBI I may file for once the appeal is done.

[stillhere]

I feel a statement from your buddy who was there would help you immensely if as they have said no evidence that it occurred. Get that down pat with not only one buddy but others, commanding officer would be nice too. Wasn't most of the explosives during that time not as sophisticated as the IED's coming from Iran now? Anyhow get it in your history and I feel you should sail through!

Thank you for your service!

Stillhere

Edited September 27, 2013 by stillhere

[Bevo]

Yeah - I am going to get it. I just don't think it adds too much value since the BVA already said they believe it happened (CAB eased my burden). My buddy and I were video journalists. He thinks he might have video of it too... he is looking.

[Bevo]

Chiropractor wrote a letter!!! I edited names out. He sold the practice he was at in 2007 and has requested the records but wrote me a letter until then. I know him well so he was willing to do it fast and I did not realize his dad died of cancer from Agent Orange before he was able to get benefits, so he was more than willing to be quick. Remember, the denial is because my condition "did not arise within a year of service" - which I think will get overturned because the PDHAs were not reviewed or the VA Dallas records, which were all within a year. Now my chiropractor also says he saw me with the same symptoms in January, 2007 - about 5 months from when I got home.

My name is Doctor . I am a Doctor of Chiropractic, licensed in the state of

Texas. I treated as a patient at my private practice xx from

January, 2007 - July 2007 and again when he moved to Austin from 2009-2012 at xxx in Austin, Texas. He has asked me to write a letter stating when I

treated him and my opinion on the etiology of his conditions, specifically in reference to

the cervical spine and shoulders.

Mr. has reported to me that he hit an explosive while riding in a tank in Iraq in 2005

and that he carried extremely heavy loads and wore body armor on long missions on foot

in 2005 and 2006.

Mr. ’s symptoms have included pain in the lumbar, thoracic, and cervical spine

areas and shoulders. His most severe pain is reported in his right shoulder, upper back,

and neck. Symptoms also include numbness and tingling to his arm. His symptoms have

been consistent from 2007 to my most recent exam of him.

Symptoms of the cervical spine and shoulders worsen with repetitive use for Mr. .

The shoulder is subject to increased pain when the arm is raised for a prolonged period of

time such as in typing or driving. Mr. also has increased pain of the cervical spine

and shoulders from sitting or standing for long periods of time. Pain includes sharp pains

in the upper back and neck, stabbing sensations of the scapula and the sensation that his

arm is falling asleep. Mr. reports that pain is present all of or most of the time,

though sometimes it is worse than others. Physical examination was consistent with these

symptoms and included tenderness and muscle spasm around the scapula.

Mr. reports to me that upon a 2013 VA examination he was diagnosed with

Cervicis Splenius Syndrome referred Levator Scapula Syndrome and Myofascial Pain

Syndrome. Mr.’s symptoms conform to these diagnoses among others and have

been present since I first saw him in 2007.

Board of Veterans’ Appeals

September 26, 2013

Page 2

Based on Mr. ’s reports of in-service injuries and symptoms since then as well as

my original examinations of him in 2007 it is my opinion that Mr. ’s cervical spine

and shoulder conditions most likely are due to his service in Iraq in 2005 and 2006.

Sincerely,

Dr. XXXX, DC

Edited September 27, 2013 by Bevo

[Bevo]

Oh and as to what kind of IED, not sure. I was a video journalist. I was in a tank doing an IED sweep so convoys could go through Sadr City. We ran over something in the road, loud explosion, slammed my back, and the tank became real shaky and had to be repaired. I would send you a link to the AFN story I did but it is so terribly done... was one of my first missions. I hardly mention the IED, but you hear it go, then my camera got turned off, I turn it on, and the tank commander is making sure everyone is okay. Driver had burns I think. I thought nothing of it at the time and our commander was on the edge of not letting us leave the wire and I wanted to be out with infantry, so I kept my mouth shut. I ended up getting video that has been used on Discovery Channel and History and all sorts of things because I went where stuff was going on. I was the first western journalist there when Zarqawi got killed. And I met guys that were just amazing to me. It all took a toll in the end on my body, but I am proud I did it.

All that said, I have the above letter now AND I contacted my buddy in California. I am going to call him this afternoon but he said he is happy to write me the witness statement. Ironically, I hope I can get it to the judge in time! Like I said, in my last 2 remands one took 35 days, the next took 10. The 35 day remand was for 6 contentions, 1 Approval, 1 denial, 4 remands, the second was for 4 conditions, 1 denial, 3 remands. AMC approved 1 remand, denied 2, now I have the 2 at the BVA (bilateral shoulders, and cervical spine).

I wish I had known now what I knew in 2008 when I filed! There is also a difference in a 26 year old college student and a 31 year old with a post-graduate degree too.

Anyhow, with that letter I now have:

Combat and combat presumptions and BVA has already said reports of carrying heavy loads and hitting an explosive are credible (letter on the way to reinforce).

A diagnosis

A letter saying that I was seen within a year for the same symptoms of the diagnosis and that the chiro's opinion is that it is most likely from service.

I know the VA is always a crap shoot, but I am feeling more confident than ever. I sent the additional evidence based on advice on this forum, so thanks in hopefully pushing me in the right direction.

Edited September 27, 2013 by Bevo

[Bevo]

Faxed in my letter from the Chiro to both numbers I have for the BVA Thursday. I certified mailed it Friday as well. Attached waiver of original RO review. Hopefully it will show up and be in my file before the judge finishes his work.

I guess maybe I should be hoping for a government shut down so it has time to get there. My buddy is writing the buddy statement so maybe that will get there during shut down too!

I wish I had known when I started what I know now.