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Proposal to Sever Service-Connection

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Sgt. Wilky

Question

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

 

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Thank you to everyone who is trying to help me! I will do my best to answer the questions and find the information you've all requested. I have to look through my binders of info!

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Very bad C&P for sure but let's discuss something else.

 

1 hour ago, Sgt. Wilky said:

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.

How did a judge make a medical opinion/decision?

 

1 hour ago, Sgt. Wilky said:

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.

So your last C&P was in 2010, you had an evaluation in 2015, with no diagnosis and then the BVA granted this based what?  I am just not following how the BVA judge came to the conclusion.  Please elaborate...

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14 minutes ago, Navy4life said:

Very bad C&P for sure but let's discuss something else.

 

How did a judge make a medical opinion/decision?

 

So your last C&P was in 2010, you had an evaluation in 2015, with no diagnosis and then the BVA granted this based what?  I am just not following how the BVA judge came to the conclusion.  Please elaborate...

Navy4life,

 I will post portions of my BVA decision that deal with the judge's rational (it's kinda long [I will highlight the pertinent parts] )

Service Connection Legal Criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A.

ง 1110; 38 C.F.R. ง 3.303(a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. ง 3.303(d).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C.A. ง 1117; 38 C.F.R. ง 3.317(a)(1).  In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service.  Gutierrez v. Principi, 19 Vet. App.

1, 8-9 (2004).  Notably, laypersons are competent to report objective signs of illness.  To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location, or symptomatology are similar. See 38 C.F.R. ง 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006).

A "qualifying chronic disability" for purposes of 38 U.S.C.A. ง 1117 is a chronic disability resulting from (1) an undiagnosed illness, (2) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (3), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C.A. ง 1117(d) warrants a presumption of service connection.  38 U.S.C.A. ง 1117(a)(2); 38 C.F.R. ง 3.317(a), (c).  As an initial matter, the diseases for which the Secretary has established a presumption under (3) are all infectious in nature.  The Veteran does not allege, and the record does not suggest, that he has any of the listed diseases.

"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification.  To fulfill the requirement of chronicity, the illness must have persisted for a period of six months.  38 C.F.R.

ง 3.317(a)(2), (3).  Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain;

(6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms;

(8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders.  38 C.F.R.

ง 3.317(b).

Effective July 13, 2010, VA amended its adjudication regulations governing presumptions for certain Persian Gulf War veterans.  Such revisions amend ง 3.317(a)(2)(i)(B) to clarify that chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome are examples of medically unexplained chronic multisymptom illnesses and are not an exclusive list of such illnesses.  Additionally, the amendment removes ง 3.317(a)(2)(i)(B)(4) which reserves to the Secretary the authority to determine whether additional illnesses are "medically unexplained chronic multisymptom illnesses" as defined in paragraph (a)(2)(ii) so that VA adjudicators will have the authority to determine on a case-by-case basis whether additional diseases meet the criteria of paragraph (a)(2)(ii).  These amendments are applicable to claims pending before VA on October 7, 2010, as well as claims filed with or remanded to VA after that date.  See 75 Fed. Reg. 61,997 (Oct. 7, 2010).

Because the Veteran has service in Kuwait from April 2003 to June 2003, he has qualifying service as a Persian Gulf Veteran; therefore, the Board has also considered presumptive service connection for a disorder manifested by upper and lower back pain with radiation into the lower extremities, under 38 U.S.C.A.

ง 1117 and 38 C.F.R. ง 3.317.  Under 38 U.S.C.A. ง 1117(a)(2) and 38 C.F.R.

ง 3.317(a)(2)(i), "Qualifying chronic disability" includes: (a) an undiagnosed illness; (b) a "medically unexplained chronic multisymptom illness" (such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms; or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection.

After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise as to whether presumptive service connection for an undiagnosed illness characterized by upper and lower back pain with radiation into the lower extremities is warranted.  As a lay person, the Veteran is competent to report upper and lower back pain with radiation into the lower extremities, and the account is deemed credible, particularly because the Veteran has sought medical treatment for the symptoms during the course of the appeal.  See, e.g., October

2010 private treatment record.  The complaints of upper and lower back pain with radiation into the lower extremities have been evaluated and are not attributed to a medical diagnosis; therefore, there is evidence of an undiagnosed illness manifested by upper and lower back pain with radiation into the lower extremities of record. 

The Board next finds that the undiagnosed illness manifested by upper and lower back pain with radiation into the lower extremities has manifested to a compensable degree when rated by analogy to a spine disability under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. ง 4.71a.  In regard to the method of rating based on the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height under the General Rating Formula for Diseases and Injuries of the Spine.  Note (1) for the General Rating Formula for Diseases and Injuries of the Spine reads that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code.  In this case, the evidence shows that, during a flare-up of back pain, thoracolumbar spine flexion is limited to 80 degrees; therefore, the criteria for a 10 percent rating under General Rating Formula for Diseases and Injuries of the Spine are met. 

The Board further finds that the pain radiating into the lower extremities has manifested to a compensable degree when rated by analogy to sciatic neuritis under the criteria at 38 C.F.R. ง 4.71a, Diagnostic Code 8620.  Under DC 8620, disability ratings of 10, 20, 40, and 60 are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) neuritis of the sciatic nerve.  In this case, the evidence shows intermittent pain in the bilateral lower extremities and some mild loss of reflexes in the lower extremities without muscle or sensory deficits.  See April 2010 VA examination report (noting a 3 out of 4 for reflexes); see October 2010 private treatment record.  Because the symptoms described above are largely sensory (i.e., intermittent pain) with only some decrease in reflex noted in the lower extremities, the Board finds that the criteria for a 10 percent rating for mild sciatic neuritis are approximated.  In consideration thereof, and resolving reasonable doubt in favor of the Veteran, the Board finds that presumptive service connection for an undiagnosed illness characterized by upper and lower back pain with radiation into the lower extremities is warranted.  38 U.S.C.A. ง 5107(b); 38 C.F.R. ง 3.102.       So while the Judge didn't actually diagnose me per se, for some reason (which I don't understand fully yet) the VA kept denying my simple claim of sciatica and this "corkscrew" pain I have in upper back. I believe it's mostly muscle related and could possibly have links to mefloquine, but I don't know. Sorry for the confusion. I hope this answers your question.

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To resurrect this thread a bit, there has been no word since May of my impending proposal to sever service connection...obviously, it's been 7 months and every month that goes is another month I may be held liable for getting paid "too much" because the VA can't get this proverbial $%^& together. I guess my question is, do I press my VSO harder for more information? I finally have some documentation from my neurologist and Rheumatologist, and now, because of this letter, at least I'm getting some help. I'm on 7 different medications now...Good God...

Sgt. Wilky

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