Proposal to Sever Service-Connection

Sgt. Wilky · June 25, 2018

So I received the dreaded envelope that I had been expecting from my fiasco of a C&P exam. They're proposing to sever-not reduce-but sever my service connection on three issues, all related to radiculopathy and neuropathy. I found an office that doesn't mind filling out the paper work, it's just they're booked 6 weeks out.

I requested a hearing with the hope that it'll take more than 60 days to schedule it, and with the hopes that I can get a diagnoses and a DBQ form filled out with the proper information. I'm also gathering letters, and writing my own, referencing the BVA's decision on my behalf for these issues back in 2015. It's psychologically draining and going through this, I can begin to see why so many veterans live with no optimism and feel like they have no hope. The constant harassing of the VA is tiresome. In my opinion, the system is severely jacked up when a C&P exam can take place on May 18, and 26 days later, they have a decision, but then wait a week to mail it to you, thereby giving you only 50 days to submit evidence. But submit a claim or two, and it takes them almost a decade to sort through their crap in order for you to win a case. I will be writing my Congressperson and Senators about this problem (not that I expect a fix).

Just venting, but I'm not giving up.

Semper Fi,

Sgt. Wilky

Navy4life · June 27, 2018

So you are currently 80% and will go to 70% if the severance does take place. Am I reading that correctly? What prompted this recent C&P exam? Do you have a copy of the C&P exam?

Sgt. Wilky · June 27, 2018

Yes, I don't know what prompted the C&P exam. The examiner said it was to keep the bean counters happy. I knew then I was in trouble...I am working on getting the C&P exam posted...

Berta · June 27, 2018

The decision seems absurd- as you stated they said the reduction was due to a change in the law- but WHAT law?

I suggest you ask them to CUE themselves:

This is a claim of Clear and unmistakable Error in your enclosed (date) decision to me, under auspices of 38 USC 5109A

You did not follow the Remand correctly from the BVA:

It states:

"An initial disability rating of 20 percent for right femoral medial condyle stress fracture residuals for the entire rating period is granted."

VA Fast Letter 10-02 explains that I am entitled to the retroative pay regarding the BVA award:

"January 6, 2010
DEPARTMENT OF VETERANS AFFAIRS Veterans Benefits Administration Washington, D.C. 20420
Director (00/21) In Reply Refer To: 211B All VA Regional Offices and Centers

Fast Letter 10-02

SUBJ: Implementation of Board of Veterans’ Appeals Decisions

Purpose
This fast letter provides clarification of the existing procedural guidance for implementation of Board of Veterans’ Appeals Decisions. The instructions provided in this fast letter supersede all prior guidance on this issue.

Background
It has come to the attention of the Board of Veterans’ Appeals (BVA) and the Compensation and Pension Service that there is inconsistent processing of claims involving implementation of BVA decisions with partial favorable findings. It was determined that some regional offices (ROs) were delaying implementation of these BVA partial grants until expiration of the 120-day period within which a veteran may appeal to the United States Court of Appeals for Veterans Claims (CAVC). Delayed implementation of favorable BVA decisions is inconsistent with the Department’s long standing pro-veteran position and unnecessarily delays payment of benefits to the claimant.
Procedures Complete Grants and Partial Awards

ROs are required to review all files returning from BVA to determine the type of action to be taken. ROs must expeditiously implement favorable decisions rendered by BVA in all cases, including those decisions that may also contain unfavorable findings subject to appeal with CAVC.
For processing purposes, a partial grant or an increased evaluation less than the schedular maximum available is considered a “favorable decision.” Partial grants rendered by BVA are subject to expedited processing.

Although a claimant may elect to appeal the evaluation assigned by BVA and continue to pursue an increased or total evaluation for the same disability before CAVC, the partial grant should still be implemented immediately.
In many instances, the claims file will not be required to complete the grant or partial grant of benefits ordered by BVA.
If a decisionmaker needs the claims file to accurately comply with the BVA mandate, he or she should follow the instructions regarding locked CAVC files provided in M21-1MR, section I.5.J.48.e.

Denials
Denials of entitlement to benefits rendered by BVA should continue to be processed in accordance with the procedures outlined in M21-1MR, sections I.5.G.33.c and d.
Questions
Questions concerning this fast letter should be e-mailed to VAVBAWAS/CO/21FL."

Also you failed to prepare and send to me the SOC that the BVA requested you should prepare.

These are violations of 38 CFR 4.6.

You stated in the enclosed decision that the proposwed severance is due to a change in the law or interpretation of the law...but you failed to state what law or regulation had changed.

The C & P was faulty because the C & P examiner was faulty. I have enclosed a run down of his "credentials"

(enclose here whatever you found: yes, I Googled him and he doesn't have good reviews at all. He's a Nurse Practitioner at the Cheyenne, WY VA Hospital.

I am not finished this but have been having internet problems all day due to low cloud cover----I will finish tomorrow ...

Others can help here if they have the Diagnostic codes for the disabilityies they propose to sever----

I am not aware of any DC changes for your disabilities but maybe there are some????

Also , pain is a disability per a recent US CAVC decision- the VA has not prepared regulations on that yet----

but that can get intyo this CUE claim as well.....

I regret I live at the top of a hill, very high up ad weather affects my satelitte PC dish-

Others ca look up the DC codes and post here what they find out....

June 27, 2018

@Sgt. Wilky Reading the letter you attached... it stated no diagnosis for the pain that you "were" being compensated for.

I would also look at the last rating letter that gave you the 80% - or when those percentages where rated... I may be looking at this in a simplistic manner... still thinking.... Maybe the VA has made an error....

Berta · June 27, 2018

just to add: VAOGC Pres op # 3 might help-note to myself-to read it all

https://www.va.gov/ogc/opinions/2000precedentopinions.asp

and the 5299-5237 DCs might be a analogous rating code.

I cant depend on my PC too long today -as I mentioned- but I am sure others will take the time to help after they read the decision you downloaded.

L had a great idea too.....they make many mistakes in ratings

I am SO GLAD they did pay the retro- I missed that with these weather-dish problems- I can rework the CUE-maybe tomorrow-

If I mentioned a court case- it is Saunders V Wilky:

https://cck-law.com/news/federal-circuit-court-rules-pain-considered-disability-for-veterans/

VA has not promulated any regs for that yet as far as I know.

"I did however, receive a letter denying the BVA's remand for them to reconsider. "

From your RO ? or from the VA?

or from your VSO????

Sgt. Wilky · June 27, 2018

So here is my C&P exam notes with my notes in bold:

=========================================================================

Date/Time: 18 May 2018 @ 1330

Note Title: C&P MEDICAL

Location: Cheyenne WY VAC

Signed By: WEINLAND,ROBERT

Co-signed By: WEINLAND,ROBERT

Date/Time Signed: 18 May 2018 @ 1614

-------------------------------------------------------------------------

LOCAL TITLE: C&P MEDICAL

STANDARD TITLE: C & P EXAMINATION NOTE

DATE OF NOTE: MAY 18, 2018@13:30 ENTRY DATE: MAY 18, 2018@16:14:40

AUTHOR: WEINLAND,ROBERT EXP COSIGNER:

URGENCY: STATUS: COMPLETED

Back (Thoracolumbar Spine) Conditions

Disability Benefits Questionnaire

Name of patient/Veteran:

Is this DBQ being completed in conjunction with a VA 21-2507, C&P

Examination

Request?

[X] Yes [ ] No

ACE and Evidence Review

-----------------------

Indicate method used to obtain medical information to complete this

document:

[X] In-person examination

Evidence Review

---------------

Evidence reviewed (check all that apply):

[X] VA e-folder (VBMS or Virtual VA)

[X] CPRS

1. Diagnosis

------------

Does the Veteran now have or has he/she ever been diagnosed with a

thoracolumbar spine (back) condition?

[ ] Yes [X] No -NOT BY A PHYSICIAN. THE JUDGE AT MY BVA HEARING SAID "THE VETERAN HAS AN UNDIAGNOSED ILLNESS CHARACTERIZED BY UPPER AND LOWER BACK PAIN WITH RADIATION INTO THE LOWER EXTREMITIES TO A COMPENSABLE DEGREE.

2. Medical history

------------------

a. Describe the history (including onset and course) of the Veteran's

thoracolumbar spine (back) condition (brief summary):

Last C&P exam for this condition was 04/26/2010, please see this exam for

further Hx. States that since this last exam feels his thoracic spine

pain

is increased by approximately 10%. Denies any history of surgery for a

back condition. Reports that his last evaluation for this condition was

done by his PCP in 07/2015 with no diagnosis associated with this

condition.

Does complain of intermittent numbness/tingling radiating into bilateral

lower extremities following the L4 dermatome to the level of his great

toes. States this occurs twice a day lasting 15 minutes, rated at 3/10.

Does complain of constant back pain thoracic greater than LS spine,

described as a throbbing pain, rated at 3/10, with flares of sharp

throbbing pain, that occur weekly, lasting 2 hours, rated at 5/10.

Precipitating factors: Nothing he knows of. Alleviating factors: Time.-I ALSO SAID THAT REST AND MEDICATION ARE ALLEVIATING FACTORS

Effects on employment: Decreased capacity to lift or bend.-I ALSO SAID THAT I HAD TO QUIT A SECOND JOB IN 3/2015 BECAUSE THE JOB SIGNIFICANTLY ADDED TO THE PAIN FACTORS WHEN BEING UP AND MOVING AND CARRYING THE EQUIPMENT BELT I WAS SUPPOSED TO CARRY, AND AFTER 8 YEARS OF IT, I COULD NO LONGER DO IT, BUT I KEPT MY REGULAR JOB BECAUSE I COULDN'T AFFORD TO QUIT WORKING ALTOGETHER. THE PAIN MANIFESTS MY INABILITY TO GET PROPER SLEEP AND REDUCES MY FUNCTIONAL ABILITY TO WORK AND LIVE NORMALLY. THE JOINT AND MUSCLE PAIN CAUSE ME TO HAVE FATIGUE AND FEELINGS OF DEPRESSION AND ANXIETY. I CAN NO LONGER GO HIKING BECAUSE I CANNOT CARRY A BACK PACK FOR TOO LONG. CAMPING IS VERY DIFFICULT (JUST TRYING TO INCLUDE ALL THE WAYS IN WHICH THIS HAS AFFECTED ME).

REVIEW OF C-FILE/STRs:

No documentation noted in the provided records for C/O, evaluation,

diagnosis, or treatment for a back condition since last C&P exam for this

condition.-I HADN'T SEEN VA DOCTOR, BUT I HAVE MENTIONED IT SEVERAL TIMES OVER THE YEARS TO MY PRIVATE INSURANCE PHYSICIAN.

b. Does the Veteran report flare-ups of the thoracolumbar spine (back)?

[X] Yes [ ] No

If yes, document the Veteran's description of the flare-ups in his or

her

own words:

See Hx section above.

c. Does the Veteran report having any functional loss or functional

impairment of the thoracolumbar spine (back) (regardless of repetitive use)?

[X] Yes [ ] No

If yes, document the Veteran's description of functional loss or

functional impairment in his or her own words.

See Hx section above.-WAS VERY PUSHY AND IMPATIENT

3. Range of motion (ROM) and functional limitation

--------------------------------------------------

a. Initial range of motion

[X] All normal-NO, IT WAS NOT.

[ ] Abnormal or outside of normal range

[ ] Unable to test (please explain)

[ ] Not indicated (please explain)

Forward Flexion (0 to 90): 0 to 90 degrees-TOLD ME TO BEND MY KNEES AND TOUCH THE FLOOR IN ORDER TO MEASURE THAT MY FLEXION COULD REACH 90 DEGREES. THE C&P EXAMINER IN 2010 NEVER TOLD ME TO DO THAT. I'M PRETTY SURE THAT WASN'T SUPPOSED TO HAPPEN.-THIS IS WHERE AND WHEN THE PAIN AND FLARE UP BEGAN FOR ME THAT DAY.

Extension (0 to 30): 0 to 30 degrees

Right Lateral Flexion (0 to 30): 0 to 30 degrees

Left Lateral Flexion (0 to 30): 0 to 30 degrees

Right Lateral Rotation (0 to 30): 0 to 30 degrees

Left Lateral Rotation (0 to 30): 0 to 30 degrees

Description of pain (select best response):

No pain noted on exam-THERE WAS PLENTY OF PAIN. THIS IS THE PART WHERE HE TOLD ME TO "PUSH PAST THE PAIN" SEVERAL TIMES. NEVER ASKED IF IT WAS PAINFUL. I STATED THAT IT WAS PAINFUL AND HE TOLD ME, "I DIDN'T ASK YOU THAT"

Is there evidence of pain with weight bearing? [ ] Yes [X] No

Is there objective evidence of localized tenderness or pain on palpation

of the joints or associated soft tissue of the thoracolumbar spine

(back)?

[ ] Yes [X] No-NOT DURING A FLARE-UP

-MISSING SECTION 3B-WOULD HAVE BENEFITED ME!

-MISSING SECTION 3C-MAY/MAY NOT HAVE BENEFITED ME!

b. Observed repetitive use

Is the Veteran able to perform repetitive use testing with at least three

repetitions? [X] Yes [ ] No

Is there additional loss of function or range of motion after three

repetitions? [ ] Yes [X] No -EXAMINER DID NOT DOCUMENT THE ANSWER AS REQUIRED IN SECTION 4B. HE SAID MY RANGE OF MOTION INCREASED WITH NO VERIFICATION. TOLD ME TO DO THE EXERCISES AS FAST AS I COULD. FOR THE SECOND TIME DURING THE EXAM, HE TOLD ME TO PUSH PAST THE PAIN AND DO IT AS QUICKLY AS I COULD. HE SAID "WE NEED TO ACHIEVE MAX FORWARD FLEXION".

c. Repeated use over time

Is the Veteran being examined immediately after repetitive use over time?

[ ] Yes [X] No

If the examination is not being conducted immediately after

repetitive

use over time:

[ ] The examination is medically consistent with the Veteran's

statements describing functional loss with repetitive use over

time.

[ ] The examination is medically inconsistent with the Veteran's

statements describing functional loss with repetitive use over

time. Please explain.

[X] The examination is neither medically consistent or inconsistent

with the Veteran's statements describing functional loss with

repetitive use over time.

Does pain, weakness, fatigability or incoordination significantly limit

functional ability with repeated use over a period of time?

[ ] Yes [X] No [ ] Unable to say w/o mere speculation-THE ANSWER IS "YES" BUT HE NEVER ASKED ME THE QUESTION. REPETITIVE USE OVER TIME CAUSES INCREASED PAIN AND FATIGABILITY.

d. Flare-ups

Is the exam being conducted during a flare-up? [ ] Yes [X] No

If the examination is not being conducted during a flare-up:

[ ] The examination is medically consistent with the Veteran's

statements describing functional loss during flare-ups.

[ ] The examination is medically inconsistent with the Veteran's

statements describing functional loss during flare-ups. Please

explain.

[X] The examination is neither medically consistent or inconsistent

with the Veteran's statements describing functional loss during

flare-ups.

Does pain, weakness, fatigability or incoordination significantly limit

functional ability with flare-ups?

[ ] Yes [X] No [ ] Unable to say w/o mere speculation-HOW WOULD HE KNOW? HE JUST STATED ABOVE THAT HE WASN'T EXAMINING ME DURING A FLARE-UP, AND THAT IS TRUE.

NEVER EVEN ASKED ME THE QUESTION. EXAMINER DISREGARDED ALL MENTIONs AND COMPLAINTS OF PAIN. SECTION V OF THIS DBQ IS NOT INCLUDED IN THIS EXAM. THIS INFORMATION WOULD BE BENEFICIAL AND CRUCIAL TO MY CLAIM.

SECTION V FROM THE DBQ IS MISSING. NO MENTION OF THE COMPLAINTS OF PAIN-CRUCIAL TO MY CLAIM

e. Guarding and muscle spasm-SUPPOSED TO BE SECTION VI

Does the Veteran have guarding or muscle spasm of the thoracolumbar spine

(back)? [ ] Yes [X] No-GUARDING, YES. ESPECIALLY DURING FLARE UPS.

6B GAIT-MISSING FROM THE RECORD. HE SAID I HAVE A NORMAL GAIT. ANYONE WHO KNOWS ME KNOWS THAT I DON'T HAVE A NORMAL GAIT DUE TO THE NATURE OF MY OTHER ISSUES, WHETHER OR NOT THEY ARE A CONTRIBUTING FACTOR TO THE CURRENT ISSUE AT HAND.

6C. MISSING FROM THE RECORD.

SECTION VII-MISSING FROM THE RECORD! AGAIN, AN ENTIRE SECTION THAT WOULD HAVE BENEFITED THE VETERAN IS COMPLETELY ABSENT FROM THE EXAMINER'S REPORT.

f. Additional factors contributing to disability

In addition to those addressed above, are there additional contributing

factors of disability? Please select all that apply and describe: None-WHAT A LOAD OF CRAP. NEVER MENTIONED IT AGAIN.

4. Muscle strength testing

--------------------------

a. Rate strength according to the following scale:

0/5 No muscle movement

1/5 Palpable or visible muscle contraction, but no joint movement

2/5 Active movement with gravity eliminated

3/5 Active movement against gravity

4/5 Active movement against some resistance

5/5 Normal strength

Hip flexion: