ADVISE WITH ONGOING CLAIM WHICH IS NOW UNDER APPEAL

[Tim]

I have just two questions concerning my current claim that is under and Appeal with the VA.

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?

 

Please allow me to introduce my scenario to help you provide me with the appropriate guidance.

 

My topic of discussion is regarding my left foot condition which are residuals from a service connected injury/severe infection.

 

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. I wrote in my disagreement. "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."

 

Here is the background to my claim:

 

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.

 

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 lays 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 is bilateral; both left and right feet. These health conditions are the by-products of my service connected infection.

 

I have attempted 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 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/).

 

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. This is where I find myself again today with my current claim that is under appeal with the VA.

 

However, during one of my C&P exams in Honolulu, Hawaii, a VA 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, the 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 to the VA two letters from physicians as evidence 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 arteriovenous 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 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.

 

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 experienced 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.

 

So, do you think that I have sufficient documentation to support my claim under appeal? And, should I open a separate claim for lymphedema?

 

Your expertise is most appreciated.

 

Thank you.

 

Best regards,

 

Tim

[Tbird]

bump

[flores97]

Tim, I will try to help you as much as I can. Firstly, yes, I believe you have more than enough evidence to be service connected for your disability. Am i correct in assuming that you have requested a DRO review, so this is not a BVA appeal? At minimum, go ahead and do an Intent to file on the lymphedema, to preserve the effective date. Also, send in an Iris Inquiry to your regional office explaining what happened, as you did above. I would also email the VA Secretary Robert Mcdonald, at robert.mcdonald@va.gov. I believe this keeps all of your options open. You will still need to go to the hearing, I am by no means an expert but they should be able to recharacterize the disability to reflect the correct code, we are not meant to be doctors ourselves, and often misinterpret what is causing our pain/symptoms. For example, i filed for memory loss, at the BVA level it was recharacterized to acquired psychiactric condition to account for memory loss. When you email the Secretary, be as detailed as possible, be sure to include your phone number, ssn, va file number(if different from ssn), and the RO that your appeal is located at. Good Luck, and i hope this helps

[Buck52]

Tim

flores97 has some great advice here!

Good Luck Buddy

jmo

..................Buck

[Tim]

Gentlemen,

I apologize, as did not see your replies until now.

Can I reply later this morning?

Thank you for your advise and support.

Tim

 

 

[Tim]

On 3/28/2016 at 1:07 PM, flores97 said:

Tim, I will try to help you as much as I can. Firstly, yes, I believe you have more than enough evidence to be service connected for your disability. Am i correct in assuming that you have requested a DRO review, so this is not a BVA appeal? At minimum, go ahead and do an Intent to file on the lymphedema, to preserve the effective date. Also, send in an Iris Inquiry to your regional office explaining what happened, as you did above. I would also email the VA Secretary Robert Mcdonald, at robert.mcdonald@va.gov. I believe this keeps all of your options open. You will still need to go to the hearing, I am by no means an expert but they should be able to recharacterize the disability to reflect the correct code, we are not meant to be doctors ourselves, and often misinterpret what is causing our pain/symptoms. For example, i filed for memory loss, at the BVA level it was recharacterized to acquired psychiactric condition to account for memory loss. When you email the Secretary, be as detailed as possible, be sure to include your phone number, ssn, va file number(if different from ssn), and the RO that your appeal is located at. Good Luck, and i hope this helps

 

[flores97]

Tim, did you have a question, I apologize but I don't see it. If you do, let me know and I will answer.