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Prepare For Bva Hearing


paulcolrain

Question

post-18467-0-81402800-1426813683_thumb.j2004 i was released from service. same year i claimed low back and bilateral hip strain. i had a c+p exam and doc said (diagnosed ) i had bilateral hip strain and lumbar strain. 2005 i was denied both the reason given was , no service treatment records could be found at all for my time in service if service treatment records are later found my claims will be re-open. i dint appeal this at the time i just waited for them to find the records.

december 2009 the VA found my records and granted me 10% for lumbar strain but, did nothing about my hips. 6 months later i sent a NOD stating that this is a claim that proceeded a denial because of service treatment records and because the records were later found then all my claims should have been re-open. they agreed but said we still are denying you for hips because your service treatment records didnt change our opinion about your hips. nothing in your record states anything about hips.. i got a copy of my c-file and yes there it was,,, service treatment records for my hips in fact in service doctors also stated that i had bilateral hip strain BUT said it existed prior to service.

i submitted this paper and they gave me a c+p exam. the doc stated nothing is wrong with my hips and that i had an existing history for a left hip diagnoses. during this time i was being seen at the VAMC and receiving treatment for my hips and lower back and radiculopathy. in fact , just 1 week after this c+p exam a vamc report shows my evaluation for my hips and range of motion to be with pain and a diagnoses of bilaterl hip strain. again i get denied because no doctor said it was do to service. then in 2011 i sent a primary care letter stating that i my bilateral hip pain could very well be related to service because of multiple rigors of life during service such as running and PT. Again this wasnt good enough, they stated i needed new evidence to re-open my claim and the doctor letter wasnt good enough because he didnt do a eval even though he was my primary also his letter didnt cite anything from my service records. i then got another letter from him after he read a few reports during service and he sent a new letter stating that he wishes to ammend the letter he already sent,,, it is now clear that the rigors of active duty are more likely than not created the issues with my current hip problems and stated the ortho reports from my service treatment records. so, i have a lot of records that rebut all the ro problems but they still deny and now i have a BVA hearing in D.C. on the 2nd week of may...

can anyone ask me some questions so that i can prepare for this hearing ,,,, questions that they would ask or some problems that you see i might face...

1) Injury in service, 2)injury now. 3) Nexus or IMO.

My 1 is (pain in hips and lower back during and after Physical Fitness Training

My 2 is (treatment records and diagnosis of bilateral hip pain on movement diagnosis hip strain.

My 3 is (service treatment records sating pain on movement diagnoses of hip strain. Also Dr. letter saying that the rigors of Physical Fitness during service such as running marching (multiple non-specific traumas to hips and back) more likely than not due to his service because of treatment records start with service and state pain with PT hips and back profile needed…

Edited by paulcolrain (see edit history)
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" but said we still are denying you for hips because your service treatment records didnt change our opinion about your hips. nothing in your record states anything about hips.. i got a copy of my c-file and yes there it was,,, service treatment records for my hips in fact in service doctors also stated that i had bilateral hip strain BUT said it existed prior to service.

i submitted this paper and they gave me a c+p exam."

So - did the in-service medical records state your hip strain pre-existed service? Or the VA doctor on your claim say it pre-existed service?

Edited by free_spirit_etc (see edit history)
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http://www.mayoclinic.org/diseases-conditions/legg-calve-perthes-disease/basics/lifestyle-home-remedies/con-20035572

  • Activity modification. Your child should avoid high-impact activities, such as running or jumping, because they can increase the amount of damage to the weakened bone and worsen symptoms.
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<<<<<<<< i sent a primary care letter stating that i my bilateral hip pain could very well be related to service >>>>>

This is why you lost in the beginning. Nexus letters must be couched in quantifiable terms. "Could have", "might have" and "probably are equivocal". It has to be in the M 21 format of "at least as likely as not" on up to "more likely than less likely" or simply "is due to". Next, a good nexus letter has to state that the doctor perused your service medical records. It's not chiseled in stone, but if VA's Examiner says s/he did so and your doctor didn't then you'll lose at the RO level.

The VLJ is not going to ask you questions like Perry Mason on cross examination in Court. It's ex parte and you are free to spin your story. I prepared with a loose leaf folder for each issue. I had every medical record ever produced for each issue and the pilot's crash report on the aircraft. I had pictures. I had my wife to offer lay testimony about my back since 1981 and how it deteriorated. I had "buddy letters" from my kids testifying to my inability to pick them up in their youth due to lower back pain and radiculopathy.

In short, Paul. There are no questions to be asked but you need to have all the answers and the right ratings criteria/ diagnostic codes language before you to provide or cite to.

Another thing. If your records were unavailable and had not been associated with your claims file until recently, your ratings should be effective the date you filed in 2004. VA likes to fun you and give you the date of reopening. Yours falls into 3.156 © or Service dept. records that previously existed but only recently have been associated with the file.

Do you have a copy of your c-file to cite to? That is a must. It's hard to fight them if you don't know what cards they're holding. Also. I pray you aren't contemplating this with a VSO unless s/he is skilled.

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I agree with Asknod.

Do you have copies of the letters your doctor wrote that you could post? Anything he could point out in the SMRs could help. Also, citing any medical research, studies, etc. that are applicable to your case could also strengthen it.

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Thank you guys for chiming in... 1st, yes have a complete file and i have had a file sent to me 3 times in the past 4 years just to make sure they havnt lost records.so far they have only lost my sister the R.N. lay statements..lol but i keep submitting... and my poa is American Legion but im doing all the work ...... thinking about an attorney.... Free Spirit--- im gonna get some of those papers and post them in the a.m. i also really like your post on Activity Modification.... shit, i was looking for a sort of medical lay statement for nexus and this is a great point you have here !!!!!!!

guys thank you , please keep checking back, i will post some docs tomorrow like soc ssoc and such so that you can check out and maybe we all can help others as well

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the VA RO is resting there case on this one C+ P exam wich is the second and last exam done. please read and realize nothing is noted for med description. after reading this again i see that the doctor doesnt say who he is refering to.... like he says " a veteran" instead of Mr. ? or the veteran ?? strange now that i read this..... please note this ,, it kinda looks like a cut and paste into a document from a predetermined statement the va sent to the doctor... like if the veteran doesnt have a acute or high impact you must say this " ,,," and then he cuts and pastes... isnt that a leading description from the va that as a veteren we dont get to lead the doctor and we are not paying the doctor.. ?????????

post-18467-0-62120900-1426834725_thumb.j

Edited by paulcolrain (see edit history)
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last ssoc..please be informed that the doctor never said in his letter that he last seen me for perthes in 1999. he actualy says i seen him as an infant and youngster. also never states that i had pain in motion or that i had a disability that should last forever...

post-18467-0-53200500-1426835526_thumb.j

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I think you will be will be successful at the BVA level.

Aggravation of a preexisting injury.

The key component will be if the preexisting issue was aggravated/worsened during military service.

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2 mos till your BVA Hearing, who's Repping you? Never been to a BVA anything but I think we can all agree that your at the 11th Hour. Not much time left to get a copy of your current C-File. By now I would have expected you to already have multiple copies of your C-file's important documents. Am I correct in assuming that you have forwarded copies of all Med records that support your contentions to your VARO during your BVA wait period? Have you receive a Supplemental Statement of Case during your appeal wait? No indication of a N&M Evidence triggered "VARO Review by Senior Rater or DRO?"

Have you been able to find any BVA Decisions that even come close to your situation. Reviewing these decisions can give you an idea of the significant areas that were covered. Can't recall reading any posts on HADIT regarding real time recent experience at BVA, any type Hearing. Your upcoming BVA experience will be very informative.

Semper Fi

Gastone

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I don't think the doctor's statement (from your doctor is particularly strong). He is saying he only saw two documents from your SMRs, and he gives very little rationale to back up his opinion. The VA wants the doctor to have access to your full medical record when rendering an opinion - and they want rationale for why he is issuing such an opinion.

It looks like they are saying you did not meet the presumption of soundness because your condition was pre-existing and became manifest shortly after entry into the service.

I didn't take the SSOC to be saying that your doctor said he treated you in 1999. I understood it to be saying that your doctor stated he had treated you in childhood, And it states in June 1999 your Perthe Disease resulted in minimal disability and slight loss of motion. They aren't saying the doctor said the part about 1999. They are saying your doctor treated you in childhood, and the condition he treated you for was shown to be minimally disabling in 1999.

They are certainly acknowledging that you were discharged from service because of your Perthes disease. Their issue seems to be that the condition became manifest shortly after you entered the service.

Edited by free_spirit_etc (see edit history)
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i can understand and see that the Dr. letter might not be acceptable but i would like to point out that his ration is that multiple non specific traumas to the hips and back in service. this is his medical opinion as he points to his prior note. also he is my primary care Dr. at the va the only hospital i use and as many of us are aware ,,, they all have to be in on the specific tests that are scheduled so not to produce to much use of facilities. my point is he is very well documented as the one who knows my care and all my issues.

in the child hood dr note he states that he treated me as an infant for this disease and treated me in 1999 for only a knee issue. goes on to say that he has not evaluated me since childhood for the disease but, va wrote it as my Dr/ stated that he treated me in 1999 and at that time i had a minimum of such. anyway i dont think this is splitting hairs because,,, a superimposed injury from a disease during service at anytime is service connection no matter what time the injury occurred and if the injurys pain is brought on because of multiple non specific traumas such as running and marching have on weight bearing joints.

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also about dr. letter.... well at least his opinion is based on something in my record.... the C+P doctor just states that he couldn't find a high impact injury in my records. so, one doc say's yes because of records he sees and the other doc say"s no because of records he doesnt see.

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i can see already that im having a problem with mapping out this issues and points. could someone please ask me about the first step of mapping in the way of a question as if you are the va and im the applicant . like. what part comes first in showing the dot to dot process...

lets role play:

im applying for bilateral hip stain. so what do i need to show that i should be service connected for hip strain ?

Edited by paulcolrain (see edit history)
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i have a new fear.. though i believe that physical training in service is what created the injury. the muscles the ligaments in my hips got injured because of numuris non- specific traumas to my hips/

i was always relying on continuity of symptomology. 1)inservice diagnose 2) post service diagnose.

now with this walker the bva is deciding this :

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2014). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2014); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

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this is a great article for me i think it shows nexus plus it backs up my primary care doctor saying activity as a solider contributed.........

Epidemiology of injuries associated with physical training among young men in the army. JONES, BRUCE H.; COWAN, DAVID N.; TOMLISON, J. PITT; ROBINSON, JOHN R.; POLLY, DAVID W.; FRYKMAN, PETER N.
icon-minus.gif Abstract

JONES, B. H., D. N. COWAN, J. P. TOMLINSON, J. R. ROBINSON, D. W. POLLY, and P. N. FRYKMAN. Epidemiology of injuries associated with physical training among young men in the army. Med. Sci. Sports Exerc., Vol. 25, No. 2, pp. 197-203, 1993. It is widely acknowledged that musculoskeletal injuries occur as a result of vigorous physical activity and exercise, but little quantitative documentation exists on the incidence of or risk factors for these injuries. This study was conducted to assess the incidence, types, and risk factors for training-related injuries among young men undergoing Army infantry basic training. Prior to training we evaluated 303 men (median age 19 yr), utilizing questionnaires and measurements of physical fitness. Subjects were followed over 12 wk of training. Physical training was documented on a daily basis, and injuries were ascertained by review of medical records for every trainee. We performed univariate and multivariate analyses of the data. Cumulative incidence of subjects with one or more lower extremity training related injury was 37% (80% of all injuries). The most common injuries were muscle strains, sprains, and overuse knee conditions. A number of risk factors were identified, including: older age, smoking, previous injury (sprained ankles), low levels of previous occupational and physical activity, low frequency of running before entry into the Army, flexibility (both high and low), low physical fitness on entry, and unit training (high running mileage).

©1993The American College of Sports Medicine

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