Adjudication, Exoneration, Exhilaration...and someday, Compensation!

[acesup]

Warning:  LOOOOONG story, 9 years + of it, ahead...  But this one has a happy ending, (or at least I think it does)!  

First, a little background:  I separated from USAF in Feb. 1974, and filed for a back injury that had occurred on duty in 1973.  Three weeks after I got home to NC, I woke up sick and yellow one morning, apparently had gotten a parting gift from my processing-out physical or dental appointment, in the form of Hepatitis 'B'.  During my three weeks in the VAMC hospital at Fayetteville, I joined DAV, and the DAV VSO filed for the residuals of Hep.  Eventually, I got 10% ratings for lumbar spine strain and for the Hep, 20% combined.  I filed for C-spine, lower extremity radiculopathies, and severe headaches; they were denied.  I had also suffered some depression due to the injuries;  the DAV guy put in a claim for "nervous condition".  The VA said that "nervous condition" was not a compensable condition.  

During my career in the jet engine business over the next 25 years, my back and neck problems got progressively worse.  In 1999, I could no longer do my job, and my company retired me, and hired a lawyer to get me onto SSDI (which was finally awarded retroactively in 2005).

After leaving NC in 2000 and moving to East Texas, I talked to the DAV over the phone, and to a local county VSO, about filing for an increase in my VA Comp.  Neither of them were very encouraging, to say the least.  I went ahead and filed anyhow, for an increase in lumbar spine, re-opening of the headaches and neck issues, and TDIU.  In 2002, they upped my L-spine rating to 40%, denied everything else, so I was at 50% overall.  I didn't have a VSO, and didn't appeal.

In 2007, my condition, especially the L-spine, had gotten worse over the years.  I was taking a lot of meds for it including megadoses of Neurontin, lots of NSAIDs and opiod pain-killers, steroid injections, etc.  I frequently couldn't exercise as much as I needed to.  While just barely "obese" at times, I had developed a severe case of Obstructive Sleep Apnea, and had severe "Periodic Limb Movement Disorder" (convulsive tic, leg muscles going crazy all night long when I tried to sleep.)  In four separate sleep studies over the years, I never would make it to REM sleep, so needless to say,  it was a problem, and between the back pain, the depression, the drugs, and the lack of good sleep, I sometimes had long periods of "sedentary" lifestyle, even though I struggled to get adequate exercise.  

I filed a claim.  We were living near Galveston, so I sent it to the Houston VARO.  I never did hear anything about it, and didn't have a VSO.  I later learned about "Shreddergate", so I'm pretty sure I know now what happened to it.

One day in February 2009, I had to have an emergency appendectomy.  After it was over, before leaving the hospital the next day, I coughed up a huge gob of blood.  I told a nurse, and she said it must be from being anesthetized, that if I didn't do it anymore then not to worry about it.  After I got home, I had a persistent mild little pain in my chest, but thought I would be okay.  I had been told to get up and walk often, and I really did try, but between my physical and mental state, I sat/laid around way too much, I'm sure.  Two days later, the chest still hurt.  I had an appointment with my VA PCP, and told him about the chest pain.  He sent me for X-rays, got the reports, and said I was okay.

The next afternoon, I was standing in the kitchen beside my wife, who was cooking supper.  I suddenly felt like someone reached inside my chest and was trying repeatedly to rip my lungs out.  I could hardly breathe at all, and thought I was dying, my heart was pounding in my ears, it was bad.  I started coughing up blood, lots of it.  She took me to the ER about 10 minutes from here, and they quickly got me into a bed and did a preliminary diagnosis of bilateral Pulmonary Embolism (blood clots in lungs) and put me in Intensive Care.  

8 days later, I got to come home.  With nothing but time on my hands, I started to put together a claim.  After talking some with my civilian PCP and my Pulmonary M..D. (also civilian), I turned in a claim for everything that could possibly be SC, direct or secondary:  Major Depressive Disorder;  residuals of Bilateral Deep Venous Thrombosis & Pulmonary Embolism;  OSA;  convulsive tic;  C-spine;  upper extremity radiculopathy;  migraine/headaches;   lower extremity neuropathies;  and, TDIU.

After reading so much on this and other online forums, and lots of research in general, I knew it might be a challenge to get favorable opinions, but I developed a strategy that eventually has paid off for my claims.  I would make an appointment with a specialist.  (State universities with medical schools/hospitals are probably the best source of specialists who are very intelligent and helpful).  For instance, with OSA, I saw two "sleep specialist" Pulmonary M.D.s.  Armed with my SMRs and civilian records, and as much research as I could find on how my condition could possibly be related to or aggravated by my SC disabilities, medications, etc.  I would talk with the doctor about what I had put together, I would ask lots of questions and his opinions.  We had some great, very informative discussions.    

I would make a follow-up appointment.  I then went home and drafted a letter with the opinions and nexus statements that we had discussed.  My "draft" letters were thorough, including the doctor's specialty and board certifications, the fact that he had reviewed all of my service and other medical records, and the research and logic that led him to opine how and why my present disability was connected to my my service or to my SC disabilities.  Out of all of the doctors I approached, only one (a neurologist) refused to sign a written opinion.  The others appreciated the trouble I had gone to and were really good about it, surprisingly.  

I submitted everything in October 2009.  In 2010, I had C&P exams.  Then, in 2011, I had C&P re-exams of most of it.  The only item that I had no IMO or nexus letter for, Major Depressive Disorder, had a great direct SC opinion from the VA Psych that stated it had begun in service and I just knew I'd get granted for that.  Later in 2011, I got a Decision Letter.  EVERY SINGLE ITEM was denied.  In listing the evidence considered, almost none of MY evidence was listed.

I requested a DRO Review.  In 2014, I was granted the Depression, and got 50% for it, which brought my overall to 70%.  I got a lawyer and filed Form 9 for BVA appeal.

Earlier this year, I got an invite for the RAMP route.  I emailed my attorney, and she said she wasn't sure that would be the way to go.  Early this summer, I was feeling discouraged, and told her I wondered if I shouldn't just drop the whole thing.  I was tired of thinking about it.  I was ready to surrender.  She replied that I should just hang in there and see what happens.

In July, I went on eBennies, and it said my case was with an ALJ since June 26.  I couldn't believe it!  However, I just figured I'd be left hanging for awhile, then eventually find out I'd been shot down again.  I had already decided I did not want to pursue it to CAVC, I was done.

The second week of August, I went on vets.gov, and it showed that a decision had been reached.  It said something about  issues "granted", two remanded.  My heart almost jumped out of my mouth!  I opened the next screen, and learned that everything but the sciatic nerve and migraines had been granted, and they are remanded.

Here's what is incredible:  they granted the TDIU solely on my lumbar spine condition, then because of the depression and other stuff, I also got SMC (s), all back to 2009.

And even more incredible, the Decision letter states over and over how my doctors' opinions were the only "credible" evidence, and that the VA C&P examiners' opinions and evidence were of no "probative" value.

It may be awhile before I see any money, but doggone it, it feels good to know that the BVA Judge considered ALL of the evidence, and saw through the deny-and-destroy strategy of the C&P examiners/  I WON!  

I'm attaching the redacted BVA Decision Letter.  I've never seen anything like it.  Sorry for the long post, but I warned you in advance!!!

 

BVADecisionLtr2018Redacted.pdf

Edited September 23, 2018 by acesup
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[broncovet]

Congratulations!  After you get the decision, review it carefully and see if your effective date is correct.  If not, dont make the mistake you made earlier and not appeal.

[63Charlie]

Thanks for sharing.

Glad you won.

If I understood you right, you said that the IMO/IME/Nexus letters were submitted after the filing of your NODS but before the Form 9 was filed?

My strategy is to hang onto my IMOS/IMEs/nexus letters until after I send in the Form 9.

Probably send in a waiver as well.

Too much tomfoolery happening at the AOJ level leading me to believe that none of my medical evidence will be given weight until I get my appeals to the BVA.

[acesup]

63Charlie, Actually, no, the opinion/nexus letters were submitted with my claim before it got denied the first time.  That's largely why I found it so hard to believe that I was shot down in flames, I had what I was certain was some awesome evidence.  It seemed like the VSRs and DRO never even considered any of my evidence.  Apparently the BVA Judge thought so, too.

I would think you'd be better off to turn in everything you can from the get-go, just in case you get a reasonable and fair person handling your claim.  

I wonder if anyone at the VAROs ever reviews BVA rulings like mine with the staff.  I'd like to think someone would get their noses rubbed in it when they screw up a claim so badly.  I doubt it, but it is a nice thought.

Best of luck with your claim, just hang in there and keep pounding them with the heavy artillery until THEY surrender!

[Berta]

This is Wonderful News!

"It seemed like the VSRs and DRO never even considered any of my evidence.  Apparently the BVA Judge thought so, too."

Along with a vet getting a lousy C & P exam, this is the best way for the ROs to deny claims.

In my BVA award the BVA stated something to that affect too. I should have filed CUE right away, but in those days I didnt even consider it.

I have been using CUE ever since -when they violate 38 CFR 4.6.

I cannot understand why vets have allowed the ROs to get away with ignoring their most probative evidence.

In my opinion, it is a deliberate tactic.

"I wonder if anyone at the VAROs ever reviews BVA rulings like mine with the staff.  I'd like to think someone would get their noses rubbed in it when they screw up a claim so badly.  I doubt it, but it is a nice thought."

I thik the Secretary's staff should look into that.The proof is right at the BVA web site. It is systemic.

I have one more CUE to prepare over a 2015 decision , I think it is the fifth CUE on the decision...And then I have to copy all of my decisions over the past 20 plus years and will send them to Secretary Wilkie. My VARO has ignored my evidence for every claim I have filed.Only by filing  CUE , I corrected that  and also the BVA award I got about 10 years ago.One CUE was filed by the VARO Regional Counsel. And one was corrected by an order from the OGC.

But I am waiting for a copy of a posthumous C & P exam they did.

In that case they did acknowledge the VACO IMO in the Evidence list but some quack manipulated medical points in the VACO IMO.Or, as I learned in a past situation, the RO never gave this C & P doctor the VACO opinion.

Regardless, it was the worse C & P exam I have ever received.I an hardly believe a real doctor wrote it.

I won that claim within a month under CUE but still the EED was wrong, I cued that,  and I think the Secretary should see an example ( I have plenty) of how this type of  incompetence has deliberately caused the backlog.