Prepare For Bva Hearing

[paulcolrain]

2004 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 March 20, 2015 by paulcolrain

[free_spirit_etc]

The RO was in error to state that the February 5, 2004 report from XXXXX MD showed I had been treated in childhood for Legg-Perthes diease of the left hip, which in June 1999 resulted in minimal disability but a slight loss of left hip motion.

The February 5, 2004 report specifically states, I was treated for a right knee injury (torn meniscus) in June 1999, but had not been seen or evaluate for the Legg-Perthes disease since I had received treatment from him for the condition as infant / youngster. Though Dr. XXX’s report stated that at the time he treated me for the Legg-Perthes condition (many years before as an infant / youngster) I had minimal disability and slight loss of motion in that (the left) hip, he did not state nor indicate that the minimal disability and slight loss of motion was permanent. He merely stated that I had a minimal disability and slight loss of motion at the time he treated me for the condition (as an infant / youngster).

The Regional Office was in error to substitute their own medical judgement and state my Legg-Perthes disease was shown to be disabling in June 1999, when the doctor specifically stated I had not received treatment or evaluation for the left hip condition since I was an infant / youngster, and that he specifically treated me for a right knee injury (not a left hip disability) in June 1999.

The RO was in error to state that the February 5, 2004 report from XXXXX MD showed I had been treated in childhood for Legg-Perthes diease of the left hip, which in June 1999 resulted in minimal disability but a slight loss of left hip motion.

The February 5, 2004 report specifically states, I was treated for a right knee injury (torn meniscus) in June 1999, but had not been seen or evaluate for the Legg-Perthes disease since I had received treatment from him for the condition as infant / youngster. Though Dr. XXX’s report stated that at the time he treated me for the Legg-Perthes condition (many years before as an infant / youngster) I had minimal disability and slight loss of motion in that (the left) hip, he did not state nor indicate that the minimal disability and slight loss of motion was permanent. He merely stated that I had a minimal disability and slight loss of motion at the time he treated me for the condition (as an infant / youngster).

The Regional Office was in error to substitute their own medical judgement and state my Legg-Perthes disease was shown to be disabling in June 1999, when the doctor specifically stated I had not received treatment or evaluation for the left hip condition since I was an infant / youngster, and that he specifically treated me for a right knee injury (not a left hip disability) in June 1999.

[free_spirit_etc]

Paul,

I don't know what your financial situation is, but I still think it would be great if you can get an IMO prior to the BVA hearing. You want your case to be strong enough to get SC granted, rather than a remand. A remand gives their doctors another shot at writing another unfavorable opinion.

This an an article on Legg-Perthes -- http://www.orthoseek.com/articles/perthes.html

I don't think this article is a good one to use for medical evidence. You would want some actual research studies -- but I am using it here for the information it contains. I have read the same information in various articles.

"Statistically speaking, 60 to 70% of children with Perthes’ disease do well with no long term disability. With treatment, results are marginally better."

"

1. If the onset of the disease is before age 4, results tend to be good, with or without treatment. The older the child at the onset of disease, the less favorable the result."

So it would seem that based on the early age of the onset of the disease, the fact that you did not require ongoing evaluation / care throughout childhood, etc. it does not seem like you would have been statistically likely to have ongoing problems (unless the condition was aggravated). The pain / limitation from your hips doesn't seem to be what would have been expected with the normal progression of your disease. If 60 to 70% of children do well with no long term disability (and the odds are even more favorable for those who have it before the age of 4) it seems like the "normal progression of your disease" should have resulted in no disability.

Your IMO shouldn't have to prove that an high energy injury (such as a fracture or hip dislocation) "caused" the disability (as stated in the SOC). They should be able to show that based on sound medical principals your Legg's - Perthes condition should not have been expected to become disabling, especially at the time that it did, that it actually became disabling when you were in the military, and that it is more likely than not that something occurred while you were serving in the military to aggravate the condition.

[FormerMember]

Wilson v. Derwinski is still for application in spite of Walker. Walker merely eviscerated the predicate based on 3.303(b) but in no way impaired it's bright line rule where 3.303(a) is concerned.

Think of a disease process like this. You have an event either before or in service and well-documented. It's part of what we call the Evidence of Record (EOR). VA will try mighty hard to diminish this event into an "acute but resolved before separation" or "evidenced before enlistment and did not increase in severity". The fallback on the second is that "any increase was due to the natural progression of the disease/injury process." Sound familiar to any of you? I was handed the acute but resolved one on my back claim in 1989. My SMRs even sated "Sgt. has been scheduled for complete ortho workup in March. I was discharged Feb. 21. All the EOR stated categorically that the injury was chronic and ongoing. Get it through your heads. They deny as a matter of course in hopes you'll go away. It has nothing to do with intelligence or fairness. It isn't because they are braindead. They are an insurance company with no competition for service. They regularly deny 85% of the time and have been since the War of 1812. Nothing new here. It wasn't until 1995 and Caluza v. Brown that they let slip we needed a nexus letter from a doctor to win. VA has a Cliff Notes book on denials that is about 5 pages long. They never deviate from it. You will rarely get justice at the RO level unless your arm/leg is visibly missing and was documented as being removed by a Purple Heart. Hell, even then they deny because they don't read the file. Hopefully this will change with word-searchable .pdf versions of our c-files as the VBMS eventually does what raters never could-----read the file in its entirety.

Don't be disturbed that VA seems to be underhanded or is cheating. It's their modus operandi and has been for over a century. Sadly, a large majority of you simply fold up the claims tent at the first denial and go home to SSD/SSI with no fight. That is why we have sites like this-to inform you about these VA proclivities. The only way to beat them in the VA poker game is to find out what cards they are holding. Most of us with a viable claim eventually win at the BVA or the CAVC when VA can no longer hide the truth or shade it to deny with. I look forward to the day they hold one of these turkey raters accountable for hanging a Vet out to dry for 22 years like me. That would be justice.

[free_spirit_etc]

Paul -- Your arguments should definitely not be near as long as the ones I am writing in here. I am just thinking them through and adding my reasoning. But in developing the arguments, you have to make sure you stay concise.

After I wrote my argument to the BVA, I probably went over it 100 more times, polishing and fine-tuning, over and over again.

The RO was in error to state that the February 5, 2004 report from XXXXX MD showed I had been treated in childhood for Legg-Perthes diease of the left hip, which in June 1999 resulted in minimal disability but a slight loss of left hip motion......

[free_spirit_etc]

http://www.va.gov/vetapp08/files2/0813250.txt

[carlie]

Paul,

Your profile here shows currently service connected at 50%.

What condition/s are SC'd already ?