Bound4heaven Posted October 12, 2006 Share Posted October 12, 2006 (edited) Greetings, I thought you all might like to read this. God Bless. Bound4Heaven Citation Nr: 0508095 Decision Date: 03/18/05 Archive Date: 03/30/05 DOCKET NO. 98-19 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a low back disability, including secondary to an already service-connected left knee disability. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney-at-Law WITNESSES AT HEARING ON APPEAL The appellant, his spouse, and C. B., MD. ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had verified active duty from September 1970 to September 1972 and from January 1991 to May 1991. He also served in the reserves and had verified periods of active duty for training (ACDUTRA) in July and August 1974, and in July and August 1975. This appeal to the Board of Veterans' Appeals (Board) arose from an October 1997 rating decision of the Department of Veterans (VA) Regional Office (RO) in Columbia, South Carolina - which denied service connection for a low back disability. But the RO granted service connection for a left knee disability and assigned an initial 10 percent rating for it. This is currently the veteran's only service-connected disability. A hearing was held at the RO in November 2000 before a Veterans Law Judge (VLJ) of the Board. This type of hearing is often called a travel Board hearing. A transcript of that proceeding is of record. The Board remanded the case to the RO in March 2001 for further development and consideration. In July 2002 the Board denied the claim for service connection for a low back disability on both direct and secondary bases. That Board decision was appealed to the United States Court of Appeals for Veterans Claims (Court). And pursuant to a February 2003 Joint Motion, the Court entered an Order in February 2003 vacating that July 2002 Board decision and remanding the case to the Board for compliance with the Veterans Claims Assistance Act (VCAA). In response, the Board remanded the case to the RO in September 2003. And more recently, in March 2005, the veteran, his spouse, and Craig Bush, M.D., testified at a hearing at the Board's offices in Washington, DC, before the undersigned VLJ. A complete transcript of the hearing is of record. The Board advanced this case on the docket pursuant to a motion filed under 38 C.F.R. § 20.900 (2004). During the March 2005 hearing, the veteran and his attorney raised additional claims for a rating higher than 10 percent for the service-connected left knee disability and for a total disability rating based on individual unemployability (TDIU). See page 2 of the hearing transcript. These additional claims, however, have not been adjudicated by the RO, much less denied and timely appealed to the Board, so referral to the RO for initial development and consideration is required since the Board does not currently have jurisdiction to consider them. See 38 C.F.R. § 20.200 (2004). FINDING OF FACT Based on the medical and other evidence currently of record, it is just as likely as not the veteran's current low back disorder is attributable to functional impairment from his service-connected left knee disability. CONCLUSION OF LAW Resolving all reasonable doubt in the veteran's favor, his low back disorder is proximately due to and the result of his service-connected left knee disability. 38 C.F.R. § 3.310(a) (2004). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became effective on November 9, 2000. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The VCAA requires that VA notify the veteran of the type of evidence needed to substantiate his claim, including insofar as whose specific responsibility - his or VA's, it is for obtaining the supporting evidence. The VCAA also requires that VA assist the veteran in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance if there is no reasonable possibility that it would aid in substantiating the claim. Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The Board has determined that the evidence and information currently of record supports a complete grant of the benefit requested. Therefore, no further notification and/or development is required to comply with the VCAA or the implementing regulations because it would be inconsequential. So the Board will address the merits of the veteran's claim for service connection for a low back disorder. Legal Analysis Disability that is proximately due to or the result of a service-connected disorder shall be service-connected. 38 C.F.R. § 3.310(a) (2004). Service connection will also be granted for aggravation of a nonservice-connected condition by a service-connected disorder, although compensation is limited to the degree of disability (and only that degree) over and above the degree of disability existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability alleged, VA is responsible for considering evidence both for and against the claim. If the evidence, as a whole, supports the claim or is in relative equipoise (i.e., about evenly balanced), then the veteran prevails. Conversely, if the preponderance of the evidence is against the claim, then it must be denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The veteran's only service-connected disability is impairment of the left knee, which currently has a 10 percent rating. In a January 2004 report, Dr. Craig Bash stated that he had reviewed the veteran's claims file for the purpose of providing a medical opinion concerning his low back disability. Dr. Bash pointed out this case was well within his area of expertise. And after reviewing the record he stated, in pertinent part, that: It is my opinion based on the medical record, x- ray findings, and the patient's statements that this patient's spine is most likely secondary to his longstanding service connected lower leg disability and his accompanying abnormal gait, which likely damaged his perivertebral spinal ligaments due to undue and abnormal stress. It is also my opinion that this patient's spine disc disease presented with sciatica, nerve damage, gait abnormalities and muscle atrophy in 1997 .... A great deal of confusion is present in the C-File record concerning this patient's spine disease. He currently has very severe advanced degenerative spine disease with sciatica, antalgic gait, uses a cane for ambulation, has muscle atrophy, and has had multiple epidural steroid injections and a herniated disc. The question presented in the file is whether or not the spine disease is related to his service connected abnormal knee and not whether his currently [sic] spine disease was caused by his knee surgery in 1996 ..... It is well known that patient's [sic] with lower extremity orthopedic problems often have abnormal gaits and these patients often rapidly develop abnormal painful spines. The abnormal forces which are secondary to the gait problems places excessive stresses across the vertebral column, which in turn damages the ligaments. As Turik states in the following, once ligaments are damaged then the patient will experience advanced degenerative arthritis: "... At the onset, tearing of ligaments and subluxation are manifest by local symptoms of low back pain accentuated by the motion which stretches the ligaments ... Eventually, symptoms of localized degenerative arthritis are superimposed ... (Turik page 853) It is my opinion that this patient's spine disease is most likely secondary to this longstanding service connected lower leg disability and his accompanying abnormal gait, which likely damaged his perivertebral spinal ligaments due to undue and abnormal stress for the following reasons: 1. The patient entered service with normal legs and spine. 2. The patient had a serious in service leg injury which is service connected. 3. The patient has had a longstanding abnormal gait. 4. The patient now has advanced premature degenerative spine disease with sciatica, atrophy and a herniated disc. 5. The patient does not have another plausible etiology for his spine disease. 6. The literature supports an association between advance spine disease and a longstanding abnormal gait. 7. The medical opinions stating that this patients [sic] spine is not related to his leg surgery are non germane [sic] to the case because this patient's spine disease is most likely secondary to his longstanding abnormal gait. The veteran underwent a VA orthopedic examination in May 2004, also to obtain a medical opinion concerning the etiology of his low back disability at issue. His claims file was apparently available for review by the evaluating physician inasmuch as the examiner related the veteran's medical history. In doing so it was reported that, in February 1997, about six months after his left knee surgery, he experienced the sudden onset of severe low back pain, for which he underwent an MRI that revealed bulging discs. After a physical examination it was reported that: Given the apparently routine nature of the left knee arthroscopy, and the subsequent negative history relative to that joint as well as currently normal examination of that joint, it is, in my mind, very unlikely that the left knee condition would have led to significant lumbar spine abnormalities. While it is known that chronic gait abnormalities can lead to lumbar spine injury and wear and tear, the length of time involved here makes this unlikely in my opinion. [The veteran's] surgery was in August of 1996 and his onset of low back pain was six months later in February 1997. Again, given the apparently satisfactory outcome of his knee arthroscopic surgery, it is in my opinion very unlikely that the degree and duration of gait abnormality subsequent to that surgery was sufficient to cause the currently observed degenerative disk disease in the lumbar spine. The question relating to the unusual physical therapy exercises is a highly speculative one. Given the veteran's description of what he did during these exercises they do sound a bit unusual, but not potential [sic] traumatic enough to have caused severe lumbar spine injury without first significantly exacerbating the knee symptoms. It is my opinion, therefore, that it is less likely than not that his degenerative disk disease of the lumbar spine was secondary to either the knee injury with gait abnormalities or to the physical therapy used subsequent to the knee surgery. The May 2004 VA examiner further stated that he had reviewed Dr. Bash's opinion, and that it appeared that Dr. Bash had not examined the veteran to ascertain the severity of the degenerative disc disease or, more importantly, of the knee. Given an essentially normal examination of the knee and an admission on the part of the veteran that he has had very little symptomatology from the knee since his convalescence, the May 2004 VA examiner felt justified in disagreeing with Dr. Bash's January 2004 opinion. An addendum to the May 2004 VA examination report indicates that X-rays revealed three compartment osteoarthritis of the left knee associated with a large Baker's cyst containing multiple osteochondral fragments. At the March 2005 hearing at the Board before the undersigned VLJ, Dr. Bash testified that he had reviewed the veteran's claims files on two occasions. See pages 11 and 12 of the transcript. He said there was no evidence of a spinal herniated nucleus pulposis (HNP) or back pain prior to the veteran's left knee injury, and that he first developed back pain after the left knee injury. See pages 14 and 15 of the transcript. After Dr. Bash had rendered his January 2004 opinion and after the VA examination in May 2004, Dr. Bash had personally examined the veteran in March 2005 - just a day prior to the hearing. See Page 16 of the transcript. That examination found many more positive clinical findings as to the veteran's left knee than were found on the May 2004 VA examination. Page 17. Of particular note, the veteran's left thigh was smaller in circumference than his right thigh - so atrophied, and he had crepitus (a grinding, clicking sensation) in his left knee. Page 20. Dr. Bash felt that it was most likely the veteran's left knee pain and abnormal gait (due to his service-connected left knee disability) contributed to his current spinal pathology. Page 22. Dr. Bash further stated that he felt the report of the May 2004 VA examination was inaccurate because it did not incorporate the results of imaging and the veteran did not have a normal left knee, as indicated in the May 2004 VA examination report. Page 22. So in substance, said Dr. Bash, the fact that the veteran does not have a normal left knee invalidates the opinion to the contrary expressed by the May 2004 VA examiner. Page 23. The veteran testified that the May 2004 VA examination only lasted about 30 to 35 minutes, but that, in comparison, Dr. Bash's examination was for an hour or even an hour and 15 minutes. Page 26. The veteran's wife, a nurse, also testified that he had no complaints of low back problems prior to June 1996, but since that time has experienced an abnormal gait. Page 32. Also during the March 2005 hearing, another statement from Dr. Bash was submitted into evidence (it is dated in March 2005), along with a waiver of initial consideration by the RO. In the statement Dr. Bash reported that he had reviewed the veteran's claims files for, in part, the purpose of providing a medical opinion regarding the relationship between his left knee and spinal disabilities. Dr. Bash reiterated this case is well within his area of expertise because he is a Board Certified Radiologist with subspecialty training as a Neuroradiologist and has special knowledge in the area of spine disease. He submitted a copy of his curriculum vitae as proof of his qualifications. He further stated that: It is my opinion that certain medical opinions and certain findings provided by Dr. Anderson are clearly erroneous and have no basis in fact. Further, [the] opinion [of the May 2004 VA examiner] is inconsistent with my recent physical exam finding of 1 March; the patient's medical history; and the radiology imaging evidence as I have outlined in the table below: Dr. Bash went on to state: In addition to the above discrepancies, I noted that the patient could not squat, bend, stoop, walk un-aided or lift from chair without assistance. The patient also was using a left knee brace, cane, lumbar spine TENS unit/wet-heat device. The report [of the May 2004 VA examiner] is, in my opinion very inaccurate, which may be due to the fact that he dictated his findings about a different patient into this patient's record or that he did not integrate his addendum or the imaging finding or his physical findings with his medical history and/or that his medical training in preventive/occupational medicine provides him with an inadequate background to interpret this complicated multi-joint/spine set of problems and/or that he did not reference any literature to support his opinions. In addition, his report contains several medical logic disconnects. For example, he basically says that this patient's left knee is normal and without crepitus but he also states that the knee has moderate three-compartmental osteoarthritis. This is a disconnect. This osteoarthritis is the imaging equivalent to the crepitus that I felt and heard on my exam. He also states that the patient has had very little symptomatology over the years but he also states that the patient uses a cane and crutches, takes large doss of pain medications, has difficulty with bathroom duties and had to use a bed pain [sic] recently. This is another disconnect. Overall, I do not find any basis for his opinion concerning the severity of this patient's left knee or why/why not this patient's knee problems contributed to his spine problems. In my opinion this patient has had a longstanding knee problems [sic] since service, which required surgery and subsequently developed osteoarthritis as documented on both imaging and exam. The patient has had left knee pain for years and an abnormal gait that has been documented in his records and he now uses a cane/crutches and knee brace and he has left knee swelling. The patient developed back pain several months (9 months to be exact - please note that [the May 2004 VA examiner] inaccurately stated 6 months) following his knee surgery. In my opinion 9 months is a long enough period of time to develop serious back problems secondary to an abnormal gait and or chronic knee pain. I have seen back pain develop immediately after an acute injury and within several days following chronic gait abnormalities. It is my opinion that this patient's longstanding gait problems have caused his lumbar spine to fail with resultant sciatica ... I have reviewed his current MRI images dated 2 Aug 2004 and I agree with [the May 2004 VA examiner] that this patient has multilevel lumbar disc disease. It is my opinion that this patient's physical exam (back pain-spasm as documented on attached ER reports and sciatica), medical history and imaging findings are all consistent with his multilevel lumbar disc disease and that this disease is due to his longstanding service induced left knee gait problems as his medical record does not contain another likely etiology. In summary, I do not find any new information in this patient's medical record that convinces me to change my previous opinion. On the contrary, my recent medical exam supports my previous opinions that this patient has serious service induced left knee and spine problems .... It is the obligation of the Board to weigh any contrasting or conflicting medical diagnoses or opinions. See Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is more difficult when medical opinions diverge. The Board cannot make its own independent medical determination and there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Probative weight should not be given to medical opinions when the veteran's records were not reviewed. See Bielby v. Brown, 7 Vet. App. 260, 269 (1994) (medical opinion is of no evidentiary value when doctor failed to review veteran's record before rendering an opinion). Here, though, both the May 2004 VA examiner and Dr. Bash have reviewed the veteran's claims files. Nevertheless, it must be noted that Dr. Bash reviewed the claims files on two separate occasions - and, like the evaluating VA physician, has now actually examined the veteran to complement this. So there are legitimate reasons for accepting this private physician's medical opinion over the VA examiner's medical opinion to the contrary. The private physician's opinions are much more focused by addressing the impairment cause by the veteran abnormal gait. Also, Dr. Bash cited more specific evidence in the record to support his opinion. In fact, Dr. Bash noted inconsistencies in the May 2004 VA examiner's opinion and, in particular, the fact that the VA examiner indicated the veteran's left knee was essentially normal; whereas, X-rays revealed three- compartment osteoarthritis in this knee. So resolving all reasonable doubt in the veteran's favor, it is certainly just as likely as not that his current low back disorder is a residual of the functional impairment (especially his abnormal gait) stemming from his already service-connected left knee disability. Thus, service connection for a low back disorder, as secondary to his service-connected left knee disability, is warranted. ORDER Service connection for a low back disability is granted. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Edited October 12, 2006 by Bound4heaven Link to comment Share on other sites More sharing options...
HadIt.com Elder allan Posted May 2, 2007 HadIt.com Elder Share Posted May 2, 2007 >I am unaware if they have ever tried to ignore his IMOs before. Hello Berta, My claim has been denied by ignoring, 3 IMO's DR Bash has sent in. My claim completely hinges on an opinion by someone who specializes in neurological radiology & a thorough evaluation of medical history. I have complete faith in DR Bashes opinions & diagnoses. Is he worth the money? He's worth every penny. After a decade of having a neuromuscular disorder of unknown cause as a diagnoses & VA neurologist that refuse to view previous medical history during their diagnostic workups, Dr Bash was able to resolve a mystery that's plagued me for decades. Link to comment Share on other sites More sharing options...
bhamboy205 Posted May 2, 2007 Share Posted May 2, 2007 thank you all. i feel better now about my decision on such a huge investment. Link to comment Share on other sites More sharing options...
Berta Posted May 2, 2007 Share Posted May 2, 2007 (edited) Allan-has the VA given you some VA quakola BS that his IMO can knock down-if they read it? Did they acknowledge his IMOs at all? On April 26th you posted M21-1MR Part III Subpart IV Chapter 5 here- I copied it and have many other regs as well- These regs clearly say that not only does all medical evidence have to be considered- if rejected----- an IMO from a real doctor can only be rejected with a full medical rationale- If they do consider an IMO and then knock it down with some VA crap- unfortunately another IMO might be in order. I threw their regs back at them over this stuff-in 2005- It all boils down to out DTA rights- The Evidence evlautation criteria you posted here on April 26th has a very intereesting little nuance to it- " If VA's Duty to Assist has been fulfilled, analyze the evidence for and against the claim." I dont know if you got a legal VCAA letter or not- but the VCAA notice is what triggers DTA-because it is the ultimate DTA- prior to 2000 we only had the regular DTA with no meat in the regs. My point is -this is what this statement (in the Dec 13,2005 Change date) means- As lons as the RO can fail to extend DTA to a claimant (meaning no legal VCAA letter telling them what evidence they need) the VA has NOT fulfilled DTA and therefore DOES not have "analyze the evidence for and against the claim." They are absolutely right and I have been qriping about this for 2-3 years- As long as a vets claim goes into the Dont send legal VCAA letter pile-at the RO (someone is determining who to discriminate against on these letters at each RO) and then they have a wussy service rep org who does not question the illegality of what VCAA letter they get- (the generic one without an election form)- then. like me, the VA can state that they dont have to extend the rest of DTA (the Benefit of Doubt Regs -38-CFR 4.3 and 4.6)because since they failed to honor the ultimate DTA-the legal VCAA letter- then why bother to even read the claimant's evidence. The VA has successfully put the vet or widow into the crapper- set for years of limbo at BVA only to be remanded back to the RO DUE to violation of the VCAA. Sometimes I think I am crying in the wilderness on this point. I wonder if anyone in hyperspace sees this scam for what it really is. As I said earlier- vet reps get paid whether they help or hinder the claimant. Someone is helping the ROs decide who gets into the illegal VCAA letter stack. It is our vet reps who are idly standing by and allowing this to occur.Why not- it sure gets claims off their desks for years- the only persons I know that fully gets this is Senator Craig and the BVA Chairman. But nothing is being done to stop the practice. I told the task force that these new vets in time will be lumped together with the rest of us- not special anymore- and for many of us, the VA claims process is a battlefield. One of my recommendations is to make sure newly discharged veterans have some hyperlinks to sites like hadit and their unit sites as well as the BVA, CAVC , 38 CFR and M21-1 - because they will need them all in time to fight on the next battlefield they will encounter aka the Veterans Administration. They might get an award as a newly discharged vet and that might be the right percentage for a while- but more than likely their disabilities will increase in their disabling affect and then they will need the full benefit of the DTA and the VCAA and we claimants today-as the BVA web site shows-are being selectively denied the provisions of the VCAA- enacted in 2000 -so that the VA would NOT be arbitrary and capricious. I dont know how long I have been here at hadit-the most important message I can give you all is to make sure you get a real and legal VCAA letter with an election form- sign it, copy it and send it to the RO. If you dont get the form-your claim will surely be denied- If you did not get a legal VCAA letter the form wont be with it anyhow. If you did not get a legal VCAA letter and filed your claim after the 2000 regs came out- you have been discriminated against by the RO and more than likely your claim will continue to be denied. Under M21-1mr Part III Subpart iv Chap 5, Change Dec 13,2005. They will only "analyze the evidence for and against the claim" IF the VA's Duty to assist has been fulfilled. The VCAA is the ultimate Duty to Assist provision that claimants have. they do NOT have to "analyze the evidence for and against the claim" if they fail to extend the benefits in the VCAA. As I said the Director of New York State Division of Veterans Affairs insisted in mail to me that I got a legal VCAA letter. I had to send him the actual regs that show I did not- like MANY others who have NYSDVA on their POA-ALL at the BVA web site on remand. Edited May 2, 2007 by Berta Link to comment Share on other sites More sharing options...
Berta Posted May 2, 2007 Share Posted May 2, 2007 BHamboy- if Dr. BAsh is doing your IMO- it pays to email him or call him -numbers at his web site first --if you cant reach him or he doesnt get back in a few days let me know- I have other numbers for him-but his site is best bet-for contacting him via email---- It pays to send a cover letter and to make a list of the evidence and to tab it if you can-to call his attention to what supports your claim. Any denials and SOCs can help him too as well as sending him any C & P exam results. He needs to know-if the claim was already denied why they denied it. He will read it all but I think this saves some time. I sent also some medical printouts supporting my claim and some other VA documents too- I knew when he called me -a week after receiving my stuff-that he would agree with my diagnosis----but still it was wonderful to hear that from a real doctor---- VA never gave my husband any accurate diagnosis on anything at all-for 6 years- Dr. BAsh-had he been a doctor for VA at the Bath or Syracuse VAMC---- would have saved Rod's life. He doesnt do skin claims or mental disability issues- but if the claim involves ECHOS, CT scans or MRIs- this is right in his area of expertise. Link to comment Share on other sites More sharing options...
sixthscents Posted May 2, 2007 Share Posted May 2, 2007 There's some interesting points brought out in this topic. Personally I have heard a great many GOOD things about Dr. Bash, and the very few negative things were rather suspect. Howeever, the VA can and does ignore IMO statements ALL the time. They consistently deny a diagnosis, unless the IMO states in no uncertain terms that someone has whatever illness. Currently I am working with someone whos IMO is outstanding except the doctors states that they "think", and that it is most "probable"..... the VA, as usual took the out and denied that there was even a diagnosis.... I have seen this again and again. Some rater decides that a board ecrtified specialist is not capable of rendering a diagnosis.... or that THEY can interpret their statements in a way TOTALLY inconsistent with the veteran's benefit of teh doubt in mind. I can yell all day about this.. and so much other VA crap, but... its simply not productive. There were SEVERAL very good points made in this post without that. I applaude Berta and her post with the VCAA... it points out the flaws of the VA system, while saying what the veteran can do to help work around those flaws. Personally I agree with her that there seems to be a "stick claim here for 2 plus years" stack... I dont know why, but some claims seem to get stuck in denial after denial in a capricious (sp?) manner... some with COMPLETE and obvious disreguard for the VA's very own rules. What makes these claims different than others? I dont know, because I have not seen a pattern. I have looked over many claims and have had a great deal of success with achieving the veterans correct compensation, but for some reason some claims simply get.. well stuck in denial after denial... I have obne where the VA ITSELF diagnosed the veteran with PTSD.... this was during a normal intake to mental heatlh... they DIAGNOSED it, but deny service connection... and into limbo it goes... 2+ years now fighting it.... What made this claim different? Evidenciary requirements were met fro the stressor, with the same amount or more than with others that had been approved..... I dont know, but... I do know that discussing it amongst ourselves we may see a pattern... with so many of us, and so many claims we will eventually HAVE to see a pattern. So, I suggest that we look for one... does that make sense? Let us try and see what evidenciary levels normally FAIL and what SUCCEEDS... and try to keep track, even if its some scribbled notes... we see enough here to get a view of the entire nation, so its just a matter of connecting the dots. Anyway, its MY take on this... again some very good information so far... I reread your post about 5 times Berta, just to make sure I understood what you were saying. Link to comment Share on other sites More sharing options...
Berta Posted May 3, 2007 Share Posted May 3, 2007 I have done extensive research on my state POA at the BVA and have found a pattern of sorts. Also- my vet rep -the very first time he met me said my AO claim was going to the BVA and the CAVC.After a fast reading of it.He never even asked what evidence I had. I thought he was talking out of his rear end- but I gave him a chance-I had a long time relationship with his fomer boss who got promoted to the VARO office. It seemed absurd to me to get this decision from a vet rep and not the RO-He was nice to me but when he read my POA file he seemed to change- award letters , a settlement with the US of A, Writ of Mandamus, Cues, etc--- he said -did the DAV do all that for you? and I said no- I did it all myself- He continued to be friendly and asked me if I could help some of their claimants which I did- what I did not realise for over 2 years was that he never filed a 21-4138 on any of my claims- somehow he never got RO mail into my POA file, my claims have disappeared from his file, he lied to me when I requested DRO review and said I could not send any more evidence, he lied to his boss and he lied to their main office- I have all of this documented. I also helped one of his vets with a Sec 1151 10 % tops claim-but by the time the weekend was over the claim was for 100% plus SMC as well as the 1151.I gave the claim 150%. He seemed mad when we brought in these newer claims.He was the POA -and asked me to help-I dont know why he got mad. a few months later he intimidated this same vet to rescind his POA -I found out and raised hell and the rep at the RO pulled the rescind out of the PC and I made it VERY clear to this rep to NEVER do that again to ANY VET who walks in there- I asked him why he did this (he is the boss by the way of the Bath office) and he said because he didnt understand the claim.I had given the vet more evidence and when the vet brought it to him he went berserk- This got me even angrier because I reminded him You didnt have to understand it-I do and the VA will------(plus he asked me to he,lp him in the first place) he should not have intimidated the vet- a WWII vet who just found out he had additional cancer that was terminal ! And this dope tries to force him to rescind his POA- He treats the vet REAL good now.I used some Command presence on his butt- There is a pattern. long story I shouldnt even attempt to state it all here- After my lawyer gets done with a matter I have at his office I am going to take some time (I need to take my final first) and sit down with this lawyer to see how I can file class action in this state against either the Buffalo RO or this state rep org or whoever- I dont know if this is federal or state issue- a class action suit to stop the RO violations of the VCAA-and stop whoever is helping them. When vet orgs are paid to know these regs in the VCAA then they are liable with that knowledge-if the VA fails to grant the claimant the Duty to Assist criteria-to advise the vet and to take some action to get the VCAA letter corrected right away- I have found a pattern in my state but am writing FOIA to the BVA also because they, in their Chairmans report , have broken down claims at the BVA as to state divisions as well as DAV etc- as to remands etc. I started with 2006 and by the time I got to 40 remands due to VCAA violation with my reps on the POA I knew something was funny- and of course I have letter from their director as proof that they dont know what a VCAA letter really is. I dont know if I have a cause of action at all for class action suit-for all vets and widows adversely affected- but I sure am willing to invest money and time into it if I do. Link to comment Share on other sites More sharing options...
Question
Bound4heaven
Greetings,
I thought you all might like to read this. God Bless.
Bound4Heaven
Citation Nr: 0508095
Decision Date: 03/18/05 Archive Date: 03/30/05
DOCKET NO. 98-19 597 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for a low back disability,
including secondary to an already service-connected left knee
disability.
REPRESENTATION
Appellant represented by: Sean A. Ravin, Attorney-at-Law
WITNESSES AT HEARING ON APPEAL
The appellant, his spouse, and C. B., MD.
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran had verified active duty from September 1970 to
September 1972 and from January 1991 to May 1991. He also
served in the reserves and had verified periods of active
duty for training (ACDUTRA) in July and August 1974, and in
July and August 1975.
This appeal to the Board of Veterans' Appeals (Board) arose
from an October 1997 rating decision of the Department of
Veterans (VA) Regional Office (RO) in Columbia, South
Carolina - which denied service connection for a low back
disability. But the RO granted service connection for a left
knee disability and assigned an initial 10 percent rating for
it. This is currently the veteran's only service-connected
disability.
A hearing was held at the RO in November 2000 before a
Veterans Law Judge (VLJ) of the Board. This type of hearing
is often called a travel Board hearing. A transcript of that
proceeding is of record.
The Board remanded the case to the RO in March 2001 for
further development and consideration. In July 2002 the
Board denied the claim for service connection for a low back
disability on both direct and secondary bases. That Board
decision was appealed to the United States Court of Appeals
for Veterans Claims (Court). And pursuant to a February 2003
Joint Motion, the Court entered an Order in February 2003
vacating that July 2002 Board decision and remanding the case
to the Board for compliance with the Veterans Claims
Assistance Act (VCAA).
In response, the Board remanded the case to the RO in
September 2003. And more recently, in March 2005, the
veteran, his spouse, and Craig Bush, M.D., testified at a
hearing at the Board's offices in Washington, DC, before the
undersigned VLJ. A complete transcript of the hearing is of
record.
The Board advanced this case on the docket pursuant to a
motion filed under 38 C.F.R. § 20.900 (2004).
During the March 2005 hearing, the veteran and his attorney
raised additional claims for a rating higher than 10 percent
for the service-connected left knee disability and for a
total disability rating based on individual unemployability
(TDIU). See page 2 of the hearing transcript. These
additional claims, however, have not been adjudicated by the
RO, much less denied and timely appealed to the Board, so
referral to the RO for initial development and consideration
is required since the Board does not currently have
jurisdiction to consider them. See 38 C.F.R. § 20.200
(2004).
FINDING OF FACT
Based on the medical and other evidence currently of record,
it is just as likely as not the veteran's current low back
disorder is attributable to functional impairment from his
service-connected left knee disability.
CONCLUSION OF LAW
Resolving all reasonable doubt in the veteran's favor, his
low back disorder is proximately due to and the result of his
service-connected left knee disability. 38 C.F.R. § 3.310(a)
(2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act (VCAA)
The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002), became effective on November 9,
2000. Implementing regulations are codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The
VCAA requires that VA notify the veteran of the type of
evidence needed to substantiate his claim, including insofar
as whose specific responsibility - his or VA's, it is for
obtaining the supporting evidence. The VCAA also requires
that VA assist the veteran in obtaining evidence necessary to
substantiate a claim, but is not required to provide
assistance if there is no reasonable possibility that it
would aid in substantiating the claim. Charles v. Principi,
16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16
Vet. App. 183, 186-87 (2002).
The Board has determined that the evidence and information
currently of record supports a complete grant of the benefit
requested. Therefore, no further notification and/or
development is required to comply with the VCAA or the
implementing regulations because it would be inconsequential.
So the Board will address the merits of the veteran's claim
for service connection for a low back disorder.
Legal Analysis
Disability that is proximately due to or the result of a
service-connected disorder shall be service-connected.
38 C.F.R. § 3.310(a) (2004). Service connection will also be
granted for aggravation of a nonservice-connected condition
by a service-connected disorder, although compensation is
limited to the degree of disability (and only that degree)
over and above the degree of disability existing prior to the
aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995).
In determining whether service connection is warranted for a
disability alleged, VA is responsible for considering
evidence both for and against the claim. If the evidence, as
a whole, supports the claim or is in relative equipoise
(i.e., about evenly balanced), then the veteran prevails.
Conversely, if the preponderance of the evidence is against
the claim, then it must be denied. See 38 C.F.R. § 3.102;
Gilbert v. Derwinski, 1 Vet. App. 49 (1990);
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
The veteran's only service-connected disability is impairment
of the left knee, which currently has a 10 percent rating.
In a January 2004 report, Dr. Craig Bash stated that he had
reviewed the veteran's claims file for the purpose of
providing a medical opinion concerning his low back
disability. Dr. Bash pointed out this case was well within
his area of expertise. And after reviewing the record he
stated, in pertinent part, that:
It is my opinion based on the medical record, x-
ray findings, and the patient's statements that
this patient's spine is most likely secondary to
his longstanding service connected lower leg
disability and his accompanying abnormal gait,
which likely damaged his perivertebral spinal
ligaments due to undue and abnormal stress.
It is also my opinion that this patient's spine
disc disease presented with sciatica, nerve
damage, gait abnormalities and muscle atrophy
in 1997 ....
A great deal of confusion is present in the C-File
record concerning this patient's spine disease.
He currently has very severe advanced degenerative
spine disease with sciatica, antalgic gait, uses a
cane for ambulation, has muscle atrophy, and has
had multiple epidural steroid injections and a
herniated disc. The question presented in the
file is whether or not the spine disease is
related to his service connected abnormal knee and
not whether his currently [sic] spine disease was
caused by his knee surgery in 1996 ..... It is well
known that patient's [sic] with lower extremity
orthopedic problems often have abnormal gaits and
these patients often rapidly develop abnormal
painful spines. The abnormal forces which are
secondary to the gait problems places excessive
stresses across the vertebral column, which in
turn damages the ligaments. As Turik states in
the following, once ligaments are damaged then the
patient will experience advanced degenerative
arthritis:
"... At the onset, tearing of ligaments and
subluxation are manifest by local symptoms
of low back pain accentuated by the motion
which stretches the ligaments ...
Eventually, symptoms of localized
degenerative arthritis are superimposed ...
(Turik page 853)
It is my opinion that this patient's spine disease
is most likely secondary to this longstanding
service connected lower leg disability and his
accompanying abnormal gait, which likely damaged
his perivertebral spinal ligaments due to undue
and abnormal stress for the following reasons:
1. The patient entered service with
normal legs and spine.
2. The patient had a serious in service
leg injury which is
service connected.
3. The patient has had a longstanding
abnormal gait.
4. The patient now has advanced premature
degenerative
spine disease with sciatica, atrophy
and a herniated
disc.
5. The patient does not have another
plausible etiology
for his spine disease.
6. The literature supports an association
between advance
spine disease and a longstanding
abnormal gait.
7. The medical opinions stating that this
patients [sic]
spine is not related to his leg
surgery are non germane
[sic] to the case because this
patient's spine disease is
most likely secondary to his
longstanding abnormal
gait.
The veteran underwent a VA orthopedic examination in May
2004, also to obtain a medical opinion concerning the
etiology of his low back disability at issue. His claims
file was apparently available for review by the evaluating
physician inasmuch as the examiner related the veteran's
medical history. In doing so it was reported that, in
February 1997, about six months after his left knee surgery,
he experienced the sudden onset of severe low back pain, for
which he underwent an MRI that revealed bulging discs. After
a physical examination it was reported that:
Given the apparently routine nature of the left
knee arthroscopy, and the subsequent negative
history relative to that joint as well as
currently normal examination of that joint, it is,
in my mind, very unlikely that the left knee
condition would have led to significant lumbar
spine abnormalities. While it is known that
chronic gait abnormalities can lead to lumbar
spine injury and wear and tear, the length of time
involved here makes this unlikely in my opinion.
[The veteran's] surgery was in August of 1996 and
his onset of low back pain was six months later in
February 1997. Again, given the apparently
satisfactory outcome of his knee arthroscopic
surgery, it is in my opinion very unlikely that
the degree and duration of gait abnormality
subsequent to that surgery was sufficient to cause
the currently observed degenerative disk disease
in the lumbar spine. The question relating to the
unusual physical therapy exercises is a highly
speculative one. Given the veteran's description
of what he did during these exercises they do
sound a bit unusual, but not potential [sic]
traumatic enough to have caused severe lumbar
spine injury without first significantly
exacerbating the knee symptoms. It is my opinion,
therefore, that it is less likely than not that
his degenerative disk disease of the lumbar spine
was secondary to either the knee injury with gait
abnormalities or to the physical therapy used
subsequent to the knee surgery.
The May 2004 VA examiner further stated that he had reviewed
Dr. Bash's opinion, and that it appeared that Dr. Bash had
not examined the veteran to ascertain the severity of the
degenerative disc disease or, more importantly, of the knee.
Given an essentially normal examination of the knee and an
admission on the part of the veteran that he has had very
little symptomatology from the knee since his convalescence,
the May 2004 VA examiner felt justified in disagreeing with
Dr. Bash's January 2004 opinion.
An addendum to the May 2004 VA examination report indicates
that X-rays revealed three compartment osteoarthritis of the
left knee associated with a large Baker's cyst containing
multiple osteochondral fragments.
At the March 2005 hearing at the Board before the undersigned
VLJ, Dr. Bash testified that he had reviewed the veteran's
claims files on two occasions. See pages 11 and 12 of the
transcript. He said there was no evidence of a spinal
herniated nucleus pulposis (HNP) or back pain prior to the
veteran's left knee injury, and that he first developed back
pain after the left knee injury. See pages 14 and 15 of the
transcript. After Dr. Bash had rendered his January 2004
opinion and after the VA examination in May 2004, Dr. Bash
had personally examined the veteran in March 2005 - just a
day prior to the hearing. See Page 16 of the transcript.
That examination found many more positive clinical findings
as to the veteran's left knee than were found on the May 2004
VA examination. Page 17. Of particular note, the veteran's
left thigh was smaller in circumference than his right thigh
- so atrophied, and he had crepitus (a grinding, clicking
sensation) in his left knee. Page 20. Dr. Bash felt that it
was most likely the veteran's left knee pain and abnormal
gait (due to his service-connected left knee disability)
contributed to his current spinal pathology. Page 22. Dr.
Bash further stated that he felt the report of the May 2004
VA examination was inaccurate because it did not incorporate
the results of imaging and the veteran did not have a normal
left knee, as indicated in the May 2004 VA examination
report. Page 22. So in substance, said Dr. Bash, the fact
that the veteran does not have a normal left knee invalidates
the opinion to the contrary expressed by the May 2004 VA
examiner. Page 23.
The veteran testified that the May 2004 VA examination only
lasted about 30 to 35 minutes, but that, in comparison, Dr.
Bash's examination was for an hour or even an hour and 15
minutes. Page 26. The veteran's wife, a nurse, also
testified that he had no complaints of low back problems
prior to June 1996, but since that time has experienced an
abnormal gait. Page 32.
Also during the March 2005 hearing, another statement from
Dr. Bash was submitted into evidence (it is dated in March
2005), along with a waiver of initial consideration by the
RO. In the statement Dr. Bash reported that he had reviewed
the veteran's claims files for, in part, the purpose of
providing a medical opinion regarding the relationship
between his left knee and spinal disabilities. Dr. Bash
reiterated this case is well within his area of expertise
because he is a Board Certified Radiologist with subspecialty
training as a Neuroradiologist and has special knowledge in
the area of spine disease. He submitted a copy of his
curriculum vitae as proof of his qualifications. He further
stated that:
It is my opinion that certain medical opinions and
certain findings provided by Dr. Anderson are
clearly erroneous and have no basis in fact.
Further, [the] opinion [of the May 2004 VA
examiner] is inconsistent with my recent physical
exam finding of 1 March; the patient's medical
history; and the radiology imaging evidence as
I have outlined in the table below:
Dr. Bash went on to state:
In addition to the above discrepancies, I noted
that the patient could not squat, bend, stoop,
walk un-aided or lift from chair without
assistance. The patient also was using a left
knee brace, cane, lumbar spine TENS unit/wet-heat
device.
The report [of the May 2004 VA examiner] is, in my
opinion very inaccurate, which may be due to the
fact that he dictated his findings about a
different patient into this patient's record or
that he did not integrate his addendum or the
imaging finding or his physical findings with his
medical history and/or that his medical training
in preventive/occupational medicine provides him
with an inadequate background to interpret this
complicated multi-joint/spine set of problems
and/or that he did not reference any literature to
support his opinions.
In addition, his report contains several medical
logic disconnects. For example, he basically says
that this patient's left knee is normal and
without crepitus but he also states that the knee
has moderate three-compartmental osteoarthritis.
This is a disconnect. This osteoarthritis is the
imaging equivalent to the crepitus that I felt and
heard on my exam. He also states that the patient
has had very little symptomatology over the years
but he also states that the patient uses a cane
and crutches, takes large doss of pain
medications, has difficulty with bathroom duties
and had to use a bed pain [sic] recently. This is
another disconnect.
Overall, I do not find any basis for his opinion
concerning the severity of this patient's left
knee or why/why not this patient's knee problems
contributed to his spine problems.
In my opinion this patient has had a longstanding
knee problems [sic] since service, which required
surgery and subsequently developed osteoarthritis
as documented on both imaging and exam. The
patient has had left knee pain for years and an
abnormal gait that has been documented in his
records and he now uses a cane/crutches and knee
brace and he has left knee swelling. The patient
developed back pain several months (9 months to be
exact - please note that [the May 2004 VA
examiner] inaccurately stated 6 months) following
his knee surgery. In my opinion 9 months is a
long enough period of time to develop serious back
problems secondary to an abnormal gait and or
chronic knee pain. I have seen back pain develop
immediately after an acute injury and within
several days following chronic gait abnormalities.
It is my opinion that this patient's longstanding
gait problems have caused his lumbar spine to fail
with resultant sciatica ... I have reviewed his
current MRI images dated 2 Aug 2004 and I agree
with [the May 2004 VA examiner] that this patient
has multilevel lumbar disc disease. It is my
opinion that this patient's physical exam (back
pain-spasm as documented on attached ER reports
and sciatica), medical history and imaging
findings are all consistent with his multilevel
lumbar disc disease and that this disease is due
to his longstanding service induced left knee gait
problems as his medical record does not contain
another likely etiology.
In summary, I do not find any new information in
this patient's medical record that convinces me to
change my previous opinion. On the contrary, my
recent medical exam supports my previous opinions
that this patient has serious service induced left
knee and spine problems ....
It is the obligation of the Board to weigh any contrasting or
conflicting medical diagnoses or opinions. See Schoolman v.
West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet.
App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429,
433 (1995). This responsibility is more difficult when
medical opinions diverge. The Board cannot make its own
independent medical determination and there must be plausible
reasons for favoring one medical opinion over another. Evans
v. West, 12 Vet. App. 22, 31 (1998); see also Rucker v.
Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v.
Derwinski, 1 Vet. App. 171 (1991). Probative weight should
not be given to medical opinions when the veteran's records
were not reviewed. See Bielby v. Brown, 7 Vet. App. 260, 269
(1994) (medical opinion is of no evidentiary value when
doctor failed to review veteran's record before rendering an
opinion).
Here, though, both the May 2004 VA examiner and Dr. Bash have
reviewed the veteran's claims files. Nevertheless, it must
be noted that Dr. Bash reviewed the claims files on two
separate occasions - and, like the evaluating VA physician,
has now actually examined the veteran to complement this. So
there are legitimate reasons for accepting this private
physician's medical opinion over the VA examiner's medical
opinion to the contrary.
The private physician's opinions are much more focused by
addressing the impairment cause by the veteran abnormal gait.
Also, Dr. Bash cited more specific evidence in the record to
support his opinion. In fact, Dr. Bash noted inconsistencies
in the May 2004 VA examiner's opinion and, in particular, the
fact that the VA examiner indicated the veteran's left knee
was essentially normal; whereas, X-rays revealed three-
compartment osteoarthritis in this knee.
So resolving all reasonable doubt in the veteran's favor, it
is certainly just as likely as not that his current low back
disorder is a residual of the functional impairment
(especially his abnormal gait) stemming from his already
service-connected left knee disability. Thus, service
connection for a low back disorder, as secondary to his
service-connected left knee disability, is warranted.
ORDER
Service connection for a low back disability is granted.
____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
Edited by Bound4heavenLink to comment
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