APPEAL REGARDING CODE 5284

[Tim]

I have just two questions which I list below concerning my current claim with the VA. But first, allow me to introduce my scenario.

Just prior to discharge from the Marines, I submitted my initial claim to the VA on September 16, 1989, through the Disabled American Veterans Office, San Diego, California, for several conditions to include my left foot condition. 

My topic of discussion is regarding my left foot condition. I currently have a claim under appeal since November 17, 2014. I am requesting a De Novo Review w/a video teleconference hearing. My service connected condition is 5284 Foot Condition Other as stated in the 38 CFR. The problems I am experiencing today are due to the foot trauma I had in service. The C&P examiner did not have my military records to review when opinioning whether or not my current condition is related to my in service condition.

On April 20, 1990, I received a service connected disability rating of 0%, coded as 5284 “Degenerative Changes, Great Left Toe, with history of injury". Service connection was established for my left great toe disability but the VA stated that it wasn't compensated because, "It is not causing you problems at this time." 

However, I believe that the VA misdiagnosed my disability and assigned me with the wrong rating because my VA medical records list the same service connected disability as diagnostic code 5284; Foot condition other, residuals of foot injury. Herein lies my ongoing problem with the VA that I have had over the years.

My decision letter from the VA dated April 20, 1990 also states, "Your service records show treatment for left foot condition during military service. However, there is no record of recurrence or complication during the rest of your service and no residual disability was indicated on your VA examination on November 21, 1989." This is not true, as my military medical records indicate otherwise in notes made to my military medical records on May 13, 1982, June 22, 1982, June 26, 1983, January 11, 1986, and January 15, 1987.

Furthermore, my left foot was never examined during the C&P exam. The C&P examiner never asked me to take off the sock on my left foot.

The VA letter further wrote, " You may submit evidence at any time to establish residual disability. It must show a continuing disability from discharge to the present time." 

When I have submitted several claims to increase my disability from 0%, the C&P examiners and Department of Veterans Affairs personnel are simply looking at my left toe and do not take into account the in-service documented residuals I have developed as a result of the laceration to the left toe and the development of severe cellulitis that occurred in May of 1982 while serving in the USMC in the Philippines.  

Since May of 1982, I have suffered edema, swelling, discoloration, and pain in my left foot and leg and at least from 2005, the swelling and discoloration in bilateral; both left and right feet. These health conditions are by products of my service connected infection.

I have attempted this several times to prove residual disability but the VA keeps denying me and wants me to prove that my degenerative changes in my left great toe have worsened.

I do not have degenerative changes in my left toe, my issues are the chronic health conditions of edema, swelling, discoloration, pain in my left foot and leg with lymphedema and venous insufficiency. In fact, the VA knows that I have lymphedema and are treating me for since October 9, 2015 with the use of the FlexiTouch System (http://www.tactilemedical.com/products/flexitouch/). 

I have attempted to file disability claims as advised by several VSOs under cellulitis, venous insufficiency and last year under code 5284 Foot Condition other. All of these claims have been denied.

However, during my C&P exams in Honolulu, Hawaii, the physician cited the swelling and discoloration and edema in my feet and even took photographs for submission to the rater with his notes. He wrote, " Pt had bluish discoloration of lt great toe. Lt great toe decreased ROM secondary to scarring from infection. Affects work climbing in and out of ships. Affects daily activities. Yet my claim to increase the rating under Code 5284 from 0% was still denied. 

On March 30, 2010, during another C&P exam in Honolulu, they physician wrote the following notes, " Post service treatment records show left edema & venous insufficiency left leg. Lower left extremity; mild duskiness with dangling the left leg." Poor circulation but present pulses in the left lower extremity."

I also have submitted two letters from physicians in hope to support my claim of chronic residual disability which are by products of my service connected infection.

The first letter is from the Rheumatologist that the Va outsourced me to for care of my left foot and leg. He wrote on May 13, 2010, "your symptoms are due to a combination of 2 issues, the first is venous insufficiency with prolong color changes in the leg due to previous cellulities with sepis. Second, is mild left sciotics (pinched nerve in lower back)."

The second letter is from my Kaiser Permanente physician, who wrote, " Veteran has been under my care since January 2009 and has been having pain, swelling, and discoloration of left leg since 1982. This all started after a severe skin infection which penetrated into the deeper tissues which required intravenous antibiotics and prolonged hospitalization of about 3 months while he was serving in the United States Marine Corps. The veteran has persistent  pain, discoloration and swelling in left leg when standing or sittings for long periods. I consulted vascular surgery to evaluate patient for possible problems in ateriovenous lymphatic systems. Vascular surgery assessed the patient and with the history of prolonged infection that it may have caused scarring of the lymphatic system which can be the reason for the pain, discoloration and swelling of the left leg. 

Lastly, I submitted a letter To the VA from a vascular surgery physician regarding my chronic swelling, discoloration and pain in my left foot and leg. After reviewing my medical records, he conducted his initial evaluation that included venous ultrasound  assessment of my lower extremities. His evaluation noted that the lymph nodes in my left upper thigh/groin area were visualized and not seen on the right. On October 15, 2015, he wrote, " The veteran has chronic pain and swelling in his left foot and lower leg due to lymphedema. Following my evaluation and review of his medical records, I find the veteran is disabled due to the lymphedema condition as a result of the injury he initially sustained while in the U.S. Marine Corps during May of 1982. It is more likely than not that the physical trauma of chronic swelling, discoloration and pain that the veteran currently suffers are the residuals of prolonged cellulitis with lympadenitis that occurred during the veteran's military service as noted in his medical records." His letter also contained a photograph of my left foot and his evaluations.

So my questions are as follows:

1. Do I have sufficient documentation to support my claim under appeal?

2. Should I open a separate claim for lymphedema?

Here is the history of my foot injury:

On or about May 7, 1982, while on active duty in the Marine Corps, I stubbed my big left toe, experiencing a laceration and the wound was treated with native herbs and penicillin powder. Afterwards, I entered into tropical contaminated water in the jungles of the Philippines. Soon thereafter, my left foot leg became swollen and I was in severe pain. I developed erythema all over the dorsum of my left foot and tenderness that ran from the dorsum of my left foot to my left leg, up to the inguinal area, with a palpable tender lymph node in my upper left thigh/groin area. For several days, I experience severe chills and fever accompanied by swelling in my left foot and leg. I was seen in the Emergency Room at the United States Air Force Regional Medical Center, Clark Air Force Base, Philippines. I was given Bacitracin ointment for the lesion on my left big toe and some antibiotic capsules and released. However, the severe pain and swelling persisted in my left foot and leg and I sought admission into the hospital the following day.

On May 13, 1982, I was admitted into the hospital with the initial diagnosis of cellulitis, left foot, with lymphadenitis; inflammation of the lymph nodes. Damage to the lymph system cannot be repaired.

I was given intravenous antibiotics for the severe skin infection (cellulitis) which penetrated into the deeper tissues of my left foot and leg. The cellulitis was resolved but the prolonged, severe skin infection had penetrated into deeper tissues of my foot and leg causing scarring of my lymphatic system, resulting in the chronic lymphedema symptoms of swelling, discoloration, and pain in my left foot and leg. Lymphedema cannot be cured but with appropriate treatment (intravenous antibiotics), it can be controlled.

My left foot turned purple upon standing and the Dermatologist at the Air Force hospital diagnosed my condition as erysipelas; an acute bacterial infection, skin disease, in the upper layer of my left foot. Erysipelas has risk factors that include problems with drainage through the veins and lymph system.

After remaining hospitalized for thirty-two days, I was then discharged for air-evacuation to Balboa Naval Hospital, San Diego, California for further treatment of my left foot and leg. My diagnosis upon discharge from the Air Force Hospital on June 22, 1982 was cellulitis, left foot with lymphadenitis and Erysipelas.

Upon arrival in San Diego, I remained hospitalized due to persistent swelling and discoloration of my left foot. Studies and observations of my foot and leg were conducted. I was seen by physicians at Balboa Naval Hospital from the Internal Medicine, Vascular and Orthopedic Clinics. Rapid development of edema in my left foot was evident. All doctors noted that that my left foot turned blue/purple with severe smoothing immediately upon standing and sitting. Military medical records on June 25, 1982 noted “bluing of distal digits when hanging leg off exam table, edema in left foot resolved when elevated but reoccurred quickly.” My toes did not touch the floor due to the persistent swelling in my left foot. A Naval Vascular physician diagnosed my incapacitating edema condition as Venous Insufficiency following my prolonged history of severe cellulitis. Edema, swelling, discoloration, and venous insufficiency of my left foot were diagnosed by military physicians as residuals of my injury/infection. These residuals from my prolonged cellulitis infection persisted throughout my remaining active duty service in the United State Marine Corps and are noted in my medical records.

 

[Navy4life]

Hello and welcome to Had it!

26 minutes ago, Tim said:

On April 20, 1990, I received a service connected disability rating of 0%, coded as 5284 “Degenerative Changes, Great Left Toe, with history of injury". Service connection was established for my left great toe disability but the VA stated that it wasn't compensated because, "It is not causing you problems at this time." 

^^^^This is NOT a denial.  You are S/C at 0% which means you should file for an increase if the condition has worsened. Code 5284 is basically the code the rater uses when they can't fit the contention into any other code.  This is like a "default" code.

 

34 minutes ago, Tim said:

I have attempted this several times to prove residual disability but the VA keeps denying me and wants me to prove that my degenerative changes in my left great toe have worsened.

^^^ How many claims have you filed?  What did you claim?  When was the last denial?  If it is over a year, you can't appeal.

Lymphedema is a condition where the lymph vessels that drain fluid from the tissues is blocked. It is rated under code 7121, post-phlebitic syndrome. Have you ever filed a claim for this????????

[Tim]

I have never filed a claim for Lymphedema because my VSO advised me against it even after I submitted him evidence that I have. He just added it to my claim that it is under appeal. My claim was denied on March 24, 2015. On November 17, 2014, the VA received my written disagreement.

I filed a claim for increase of my 0% disability rating under Code 5284 sometime in late 2011 and had my C&P exam for my claim on 4/27/12. The C&P examiner asked me if I had degenerative arthritis in my left great toe. I told him, "No I did not." So he told me to go back to my VSO and file a different claim since he believed that I was misdiagnosed by the VA in the first place. I did go back and my VSO filed it under venous insufficiency and it was denied. But it was denied on March 24, stating " that my degenerative changes in my left toe hasn't changed. I appealed their decision because  I am not claiming that venous insufficiency as a new condition But rather as a residual of my left foot condition which is rated as "degenerative changes, left great toe. 

 

On November 4, 2015 I submitted a letter To the VA from a vascular surgery physician regarding my chronic swelling, discoloration and pain in my left foot and leg. After reviewing my medical records, he conducted his initial evaluation that included venous ultrasound assessment of my lower extremities. His evaluation noted that the lymph nodes in my left upper thigh/groin area were visualized and not seen on the right. On October 15, 2015, he wrote, “The veteran has chronic pain and swelling in his left foot and lower leg due to lymphedema. Following my evaluation and review of his medical records, I find the veteran is disabled due to the lymphedema condition as a result of the injury he initially sustained while in the U.S. Marine Corps during May of 1982. It is more likely than not that the physical trauma of chronic swelling, discoloration and pain that the veteran currently suffers are the residuals of prolonged cellulitis with lymphadenitis that occurred during the veteran's military service as noted in his medical records." His letter also contained a photograph of my left foot and his evaluations.

In fact, the VA knows that I have lymphedema and they have been treating me for lymphedema since October 9, 2015 through the use of medication and the FlexiTouch System (http://www.tactilemedical.com/products/flexitouch/).

Should I file a claim now for lymphedema? 

 

[Navy4life]

So your March 24th, 2015 denial was based on the 0% S/C under code 5284 and the lymphedema?  You indicated the VSO added lymphedema to your claim?

When did you file the NOD pertaining to the above denial?  Did you request a DRO hearing?

Since your VSO added Lymphedema what was the denial decision word for word?

The mere fact that the VA knows that you have lymphedema isn't the issue.  You need to connect the dots to show it was in-service, you have continued issues, you are being treated for it.

I would get a new VSO or DAV rep ASAP.

[Tim]

Thanks for responding Navy4Life. Let me correct myself, my claim for service connected compensation was received by the VA on March 24, 2014.

Since the VA had continued to look at the degenerative changes in my great left toe and denied me twice, my VSO decided to take a different approach. Since it was documented in my military medical records that I was diagnosed with Venous insufficiency, he submitted the claim  with the medical description as follows: left leg insufficiency with bilateral venous reflux. The VA doctors at Audie Murphy Hospital had diagnosed me with this condition. 

On October 30, 2014, the VA denied me for this condition stating that it was previously rated as left leg cellulitis, severer vascular disease which was not service connected. In that same letter, the VA determined that my service connected condition for degenerative changes, left great toe, hasn't changed.

The VA received my written disagreement on November 17, 2014.Under the guidance of my VSO, I listed my disagreements on my statement dated November 7, 2014 as follows: "Degenerative Changes, Great Toe - I am not claiming venous insufficiency as a new condition. My service connected condition is 5284 Foot Condition Other as stated in the 38 CFR. The problems I am experiencing today are due to the foot trauma I had in service. The C&P examiner did not have my military records to review when opinioning whether or not my current condition is related to my in service condition."

Then on November 4, 2015, my VSO added my nexus letter and supporting documentation regarding my diagnosed lymphedema condition. He never mentioned lymphedema on my signed and submitted VA Form 21-4138. Rather, he wrote this statement, "Please see attached lay statement and Doctors letter concerning my appeal for my foot condition." 

I believe that I have "connected the dots" regarding my lymphedema condition the letter from my physician. Do you agree? If so, should I submit a claim for lymphedema by itself? It is documented in my military medical records that i was diagnosed with lymphadenitis. 

 

[TexasMarine]

Excuse me please.

You do not mention that you work or not.  The main purpose of the rating (once approved for service connection) is to approximate how much the condition prevents you from working.  So, if you are still working, a rating of 0% might be appropriate in the VA's eyes.

If you're not working as a direct result of your rated condition, then, you have a basis for appeal. Or, even if you are working, but not at the same proficiency as you  would under normal circumstances, you should file an appeal.

jmvho

T Marine

Edited March 21, 2016 by TexasMarine
Had to add one sentence