lumbosacral Emailed Alison Hicky About Claim

[diver]

I emailed Allison Hickey yesterday regarding my claim at 12 by 330 I received a phone call from the assistant director of the Seattle VA. The email was about the denial of my claim for chronic severe hip pain secondary to my service conected knees and sciatica secondary to my lumbar strain. I talked to him for about 20 minutes and explained that in the decision reasoning they stated that there were no current and active diagnoses for my hips. I told him that I spent a month trying to get into the va ortho to get a diagnoses and I was told that I have an active diagnoses in my VA records from 2006. Again it is an ACTIVE diagnoses. So I told the assistant director that that means that the reasoning for the denial was false and needed to be corrected. I also told him that with the imo that stated that my chronic hip pain ARE caused from my service connected knee condition and the C&P exam stated that it was at least (that sucks but at least its something) as likely as not there should be enough evidence to find in my favor. I also stated that with the findings from the C&P the rating would be 20% for 1 hip and 10% for the other hip.

As for my sciatica, again the rater stated that there were no diagnoses of sciatica. I informed the assistant director that the Dr at the va showed me the diagnoses for sciatica and for lumbosacral spondylosis without myelopathy of L5 S1 and that the MRI on 12/20/14 has a 4mm bulge. And that the diagnoses show up in the myhealthyvet Blue button list. The C&P dr stated that lumbar strain cannot cause sciatica. To counter that I found 8 BVA decisions from 2014 alone that have sciatica with lumbar strain including one that specifically states “ service connection for left & right lower extremity sciatica associated with a service connected lumbar strain is granted”. I sent an email containing all the Citation NRs to the RO that has my file.

Well I hope that I did the right thing here and that it will help my claims. He stated that I will hear back from him in a weak or two after they have a chance to review the decision of the claim and whether they find that there is enough evidence to overturn the denial and grant my connection for them.

So my questions are

1. Did I do the right thing with this claim.
2. Does anyone have BVA claims for chronic hip disorders that I can use as evidence? I did not really find any and I must admit I am very new at researching the BVA decisions.
3. And finally. How is sciatica rated? I know the basic but what I have is pain in both butt cheeks down to mid thy and down the back of my left leg. Are they rated separately or are they rated as one? I have not been able to track this down. I have seen both legs being rated separately but I have not seen anything about the butt cheeks.

thank you all

diver

[diver]

Thank you very much Berta. I will look forward to get the paperwork. In the meantime it was great to be able to pick the brain of the rator and see what exactly in her eyes I am missing to get rated for my hips. To me it was very valuable.
Diver

Edited March 13, 2015 by diver

[Berta]

Great..... my rater doesn't think that my husband is permanently and totally dead I guess.....

so the CUE succeeded but not the accrued payment they owe me.

And I got the most unusual and incompetent medical 'review' last week that in 20 years of being a claimant myself,

is so strange I cannot believe any VA medical professional prepared it.

The director ,who was going to send me a copy of the actual exam, "forgot" to copy it from the 10 volume C file stuff, before she sent it to VACO. forgot my butt....

They dont want me to see it. I have successfully knocked down every single past C & P exam they ever did.

I only had IMOs for one claim.

The rest I did myself with my lay medical background.

I already prepared a rebuttal to it , as to how it is worded in my decision for my HBP 1151 claim because the director said she would call me, yesterday, with the contact person at VACO who will handle my 2 claims.

She never called.

I can call VA Central Myself.

One contact person for one of the claims would need to be at VA OGC. I like dealing with them.

VACO already gave me a strong and favorable medical opinion on the HBP 1151 under 1151.,requested by the OGC.

The RO medical 'person' tried to go against this same VACO OGC opinion.

I sent the director the healthgrades rundown on the original VACO opinion I got.years ago This doctor is still at VACO,

2 separate board certs, cardiologist, expert in cardiovascular disease, and multiple other cardio areas, and also expert in HBP.

I get a RO med opinion from someone who thinks they are an expert in Spin. BS to that.

This whole thing is as bad as the evidence I proved of a cover at one VAMC in the malpractice at another VAMC,

years ago, and a continued absence of proper medical treatment for my husband, that caused his untimely death at age 47. (documented)

Edited March 13, 2015 by Berta

[broncovet]

I sometimes use BVA decisions, but, instead of citing the BVA decision, I cite the precedential decision they cite. This way, I avoid all the "non precedential hocus pocus" the VA loves to throw at us. If you carefully read the applicable BVA decision, they often cite a precedential case. Use the precedential case instead.

[diver]

thank you all I will keep that in mind when i file my next NOD.

Edited March 13, 2015 by diver

[free_spirit_etc]

I sometimes use BVA decisions, but, instead of citing the BVA decision, I cite the precedential decision they cite. This way, I avoid all the "non precedential hocus pocus" the VA loves to throw at us. If you carefully read the applicable BVA decision, they often cite a precedential case. Use the precedential case instead.

I agree. That is where I got the "A non-precedential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992)." - from a BVA decision.

And diver -- once you find something you might want to cite -- you can do an additional search for that case. For instance, in the above, do a search for Bethea v. Derwinski, and it will pull up BVA cases that cited that case, and you can find the reasoning worded in a variety of ways, and look for one that best supports your claim.

But with that being said, there are still times when citing the BVA cases might be the best thing you can come up with.

My husband's doctor told him that his cancer started a long time before he got out of the service. He explained that was based on his type of cancer's doubling time / growth rate. When I did a BVA search on cancer doubling time and growth rate, I found that most of the claims I pulled up were granted. Most of the claims were similar to my husband's -- where the cancer was diagnosed within a few years of getting out of service, but the nature of that type of cancer was that it would take many years to reach the size it was at diagnosis. It wasn't a case where I was able to find a case or two that were granted. I started clicking on the cases I pulled up under the doubling time search term, and found most of them were granted. The ones that were not granted were usually ones in which the claimant did not get an IMO, and just gave their own opinion and a couple articles to support the claim.

Despite the fact I found many of those cases, most people continued to tell me that my husband's cancer couldn't be service connected unless it was diagnosed in service, or he had boots on the ground in Vietnam. Even the couple of lawyers I contacted turned down representing me, and the VSOs told me I wouldn't be granted benefits because his cancer wasn't in his SMRs and he didn't have boots on the ground.

Despite the fact, §3.303(d) specifically addresses Post-Service diagnosis of disease, most people will tell you it has to be diagnosed in service, or exhibit noticeable symptoms in service. But the BVA cases told me different.

Of course, I had my IMOs, but I couldn't find precedential cases that specifically addressed cancer onset based on growth rate. So I used the BVA cases in my argument. I submitted the following:

"Entitlement to service connection based on doubling time and / or growth rates of cancer is not uncommon. Service connection has been granted on this basis in various claims. (See BVA Citation Nr: 0932955, BVA Citation Nr: 1132635, BVA Citation Nr: 0202424, BVA Citation Nr: 0905201, BVA Citation Nr: 0022373, BVA Citation Nr: 0521737, BVA Citation Nr: 1308760). A non-precedential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992)."

Ironically, one of the cited cases was decided by the judge who was deciding my case.

I also attached a copy of the excerpts of the portions of the decisions that addressed the issue.

The way I used the BVA decisions was similar to the way you are using them. In your case, the C&P doctor didn’t just state that YOUR sciatica isn’t caused by lumbar strain. He stated lumbar strain CANNOT cause sciatica. All the BVA cases you found certainly point out that the doctor did not use sound medical reasoning in his decision.

However, though you can point out that the opinion was inadequate because of that statement (and other issues in his report) you will still need to have a doctor state that YOUR sciatica is more likely than not caused by your SC condition. They can’t just base that on the other BVA cases.

[free_spirit_etc]

diver,

Chris Attig has some interesting info here about Inadequate Exams http://www.attiglawfirm.com/communicate/inadequate-c-and-p-exams/

Here are a couple cases that might also help.

See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (stating that the Board erred in relying on a medical examiner who “ultimately relies not on the objective medical evidence, but rather the absence of such in reaching her opinion”)

See Dalton v. Nicholson, 21 Vet. App. 12, 39-40 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).