Re-filing a claim that was deemed not service connected

[dethnode]

Ok, first let me say, I am sorry for the long winded post, and also if this is not in the proper place.

I served on active duty USAF for 7 years from 2003 to 2010.  Prior to joining, there were no instances of ever having back problems or even a day of back pain.  During my service, I had several documented lower back pain clinic visits.  Most of the time, I was given a exemption from physical training and some Ibuprofen. On three occasions, I was sent to physical therapy and to chiropractic services.  Never were there any advanced imaging tests performed.  After I separated in 2010, I did not file any claims for disability.  I continued to have back problems that I would go see my primary care physician for and would be treated with muscle relaxers and/or steroids.  In 2012, a friend that I kept in touch with from service told me I should go and file a claim, so I did.  I filed for three issues (knee pain, back pain, and shoulder pain) on the advice of my VSO. The knee pain I had before I went in and it was documented before I went in, so I figured that to be a waste of time.  The shoulder pain was just a click in my shoulder that was not really painful and caused no difference in my daily life so I did not see that as relevant. However, the back pain did not start until I joined service, and had become an issue that was more often painful that it was not painful.  So I filed, and went to my C&P and they did an X-ray and ROM test for all three claims.  Several months later I got a letter in the mail (to the wrong name) but with my information, that all three of the claims had been deemed not service connected.  

I was fresh out of college and just starting a new job, with newborn son, and basically running in every direction just to get day to day things accomplished and at the time the back pain while a pain in the butt, was more of a nuisance than anything else. So from that time until last 2015, I have been treated by my PCP approximately 2 or 3 times a year with steroids and muscle relaxers for lower back pain, and have seen a chiropractor on occasion.   In 2015, I had a flare up of back pain, that sent me to my doctor, this was different, it was the same pain but much more intense.  The PCP said it sounded like a herniated disc, but that they would treat it with physical therapy.  I asked "can we please do an MRI to confirm"? His response was that the MRI is an expensive test and that it is better to do the physical therapy and see if it gets better. Well over a 3 month period of physical therapy it did gradually get better but did not return to the same.  Then, 1 month ago, while picking up a pair of shoes, I could not stand back up, every attempt to straighten my lower back was met with excruciating pain.  I was home alone with 3 children, my wife was at work.  My youngest (7 months old at the time) was in his crib crying, and I was stuck on my hands and knees.  I called my wife who came home to help.  But when she attempted to help me stand, my legs were numb (like not there numb), the pain in my lower back when attempting to stand sent me into screams of pain.  We had no choice but to call for an ambulance to take me to the ER.  When they placed me on the stretcher and straightened my lower back, for the first time in my life, I blacked out.  At the ER they finally ordered an MRI, and it was confirmed I had a herniated disc, with several fragments pressing against the nerve root. They referred me to a neurologist and he recommended I let it wait 4 weeks to self heal and then determine if I wanted surgery.  Two weeks in, I called him and said schedule the surgery. I had paid radiating down my right leg.  I was unable to sit, drive, stand, walk.  The only thing I could do was lay on my side with my knees bent 30 degrees.  He performed the surgery and said that things were worse than the initial MRI, he said he did remove several bone fragments from my nerve root, and that I had sever disc degeneration to the point that there is almost no disc left.  He said I am likely looking at fusion in the next 5 to 10 years. 

 

So, now that brings us to present day.  I have called a different VSO and scheduled an appt. I am going to re-file my claim.  Is there any chance of this turning out favorably for me?

[vetquest]

Gee, getting a civilian doctor to write a nexus letter is tough.  My doctors would not touch this so I had to get an IMO.  I did a search on doctors willing to write disability letters and fortunately found one in the next town over, one of the only two in the state.  But do not give up, I was just service connected for a nexus that occurred thirty years ago.  It was a ten year fight but I was backdated to the day I applied.

[pwrslm]

My case was similar except instead of 5 years, it was 35. I started calling spine surgeons right off the bat and found a highly qualified local surgeon that would give me an honest IMO. I took the chance that he would say it was not connected, but it panned out that he looked at the MRI and right off the bat said it was more likely than not that the old 35 year old record from the Army was where the whole thing started. Dont have to have him say exactly when or what I did that caused it, only that the symptoms I had then were related to what I had now. 

The neuropathy is secondary to the spine condition. if you have any numbness in either leg, its 10% each leg. If its more than than it can go to 80%, depending on the severity. My left leg is rated at 40% now, should be 60 because of atrophy of the muscles. 

You can look up the rating info here for the spine and here for the nerve problem.

[broncovet]

A nexus statement is not always easy to obtain.  You can get it Either from 

a) A VA doc, especially a Veteran friendly one.  OR

b) A private physician that does IMO/IME's.  

I suggest persuing choice "a" FIRST, unless you have money to burn, as choice b is often expensive.  You can simply ask your VA doc if he thinks your (diagnosis) is related to service.  If he says "yes", ask him to document it.  If he says "no", then you will have to get your nexus elsewhere.  

If you get a private IMO/IME, then make sure it has everything the VA needs. 

1.  Your private doc will need to review your records and state the same.  

2.  The private doc will need to be experienced in your disability(s) and have medical training.  You can not have your brother in law,  who has a Phd in Political Science, opine on your bad knee and expect it to stick. 

3.  The doctor needs to comply with current medical practices and procedures, and so state.  

4.  The doctor needs to supply a nexus statement in a form VA will accept, which is "The VEterans xx condition is at least as likely as not due to yy event while in military service".  A nexus statement that says it "could" be caused from service, or  "maybe" caused from service, or "might" be related to service will fail.  

5.  The doctor will have to give a medical rationale as to why he made said opinion.  

     If you are missing "any" of the above 5 elements of an IMO/IME, then your exam will likely be a waste of money.  You might get away with a board certified doc lax on documenting number 3, as it is assumed.  However, best is not to chance it.  

     Make no mistake here:  The medical nexus is required for your claim to suceed.  Unless the rating specialist makes an error, you can not get benefits without a nexus.  

Edited July 5, 2017 by broncovet

[dethnode]

What is the opinion of Dr Ellis in Oklahoma city?

[dethnode]

I have read on here about using Dr. Ellis in OK City to get a nexus.  Is a nexus statement from him worth the time or does the VA give little credit to IMO from doctors like him and Dr. Bash?

[MikeHunt]

A good nexus is a good nexus.

Quote

III.iv.5.A.3.c.  Medical Assessments – History and Policy Applications

A key evidentiary concern in many VA claims is evaluating the probative value and weight of a diagnosis or opinion that relies upon a claimant’s history.   The claimant’s self-interest in the outcome of a medical assessment and his or her ability to recollect facts over time both raise concerns about whether history is accurate and, therefore, whether medical assessments are valid.  However, as a general principle, unless the historical facts upon which a medical conclusion is based are dubious or untenable, the medical conclusion should be accepted as credible.  The probative value of this medical evidence may be considered and weighed relative to other evidence of record.    In most cases, medical diagnoses and opinions are based to some degree on history provided by the patient or examinee.  Medical assessments based on the claimant’s history generally shall be accepted as credible unless the evidence proves the medical history is inaccurate.  However, an examiner’s conclusion that merely echoes the reported history of a claimant, without offering any medical rationale in support, cannot be deemed an adequate medical opinion and should not be assigned any probative value.    Reference:  For more information on claimant’s history in medical opinions, see Reonal v. Brown, 5 Vet.App. 458 (1993), and Coburn v. Nicholson, 19 Vet.App. 427 (2006).