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IS THE VA RAIL ROADING ME AND VIOLATING 38CFR

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GTODABYN3

Question

I recently submitted a supplemental claim for IU and sciatic nerve (bilateral) June 26, 2019 original claim was March 18, 2018. Denied 6/22/2018. By the way I think itmy decision  was due to me hitting the, make a decision I'm tired of waiting button, on ebenefits probably not a good idea on my denied claim last year. 

I had an c&p exam July 23, 2019 which went very well for me. I asked for a reexamination of the Sciatic nerve bc the previous C&P examiner did not exam me however, the VA lowered my rating (20% to 10% due to the exam, so they say, but it did not change my overall rating of 90%. However she did state I was incapable of sitting for long periods of time without discomfort and that I am unable to utilize my back excessively for employment. However the VA went on to say in their decision for denial "However you should be able to perform most sedentary occupational task with minimal accommodations Therefore your claim for IU is denied." Isn't their medical opinion a violation of 38 CFR policy? Why did they not take this medical opinion, they asked for as a determination for IU. And should they not include this as a reference along with new evidence. Keep reading below

Is it possible for them to dispute the July 23, 2019 exam. Can they over rule (the favorable sciatic nerve) that exam for a new one (upcoming exam)? What happens in the case of a toss up? What part of the 38 CFR policy are they violating then.

The new examiner however, pointed out some issues he asked me about regarding ED and urininary leakage that I never associated with my DDD, which I am rated 40% for.  He even made a phone call (in my presence) to his supervisor as to where and if he could note this information on the DBQ form bc there was no space for it on the questionnaire. The supervisor advised him to make note of it on the form in which he did. When I called the 800# to inquire about it they said basically I will know the decision on the percentage once everything is complete, and that my claim was in the developing stage and it needed "secondary action",but not on my part I was told that quote means internal action.

Why am I not having a C&P for ED or the Urinary leakage, or am I?

I have been rated at 90% since 2017, with some disabilities increased in that time. I never got a 21-8940 from the VA, is this a violation of 38 CFR?. Also, was I suppose to submit another 21-8940 with the new supplemental claim (they sent me another one and I filled it out and returned it). I submitted one last year and nothing has changed. I was terminated from my job as a police officer bc of my back and sciatic nerve disabilities, and haven't been gainfully employed since. This was also something they know about from the last IU claim

Also I have a VA doctor who was my PCP stating due to my back condition which occured in the military should not be employed. Im in constant chronic pain. It has caused depression and other issues amongst my family. Which I have also addressed in my last IU claim. Why are they sending me to another C&P next Tuesday, Septemeber 10th, when it's not needed (my opinion) there is no improvement in my back and the last exam didnt change from the previous one is this normal? I claimed sciatic nerve and IU on my supplemental claim to them with new evidence to review, such as SSA FULLY FAVORABLE LTR and a Insurance claim form that my now VA NP filled out for me that including patient unable to stoop, stand, bend, walk, sit so forth and so on with no improvement in site. I never mentioned any thing needed to be done to my back as far as looking at it or talking about it for them to ask for an exam this go round.  

This questionaire that they sent me I already filled out once, so why am I getting it in my C&P packet from QTC to fill out again.  The QTC rep who contacted me said that the VA sent them the claim as a new claim, but she saw in my medical records that I had a MRI and it showed the results were positive, amd that i was rated 40% for my back condition. She also said that she had to and did send it back to them for correction. So I asked her several times in front of a witness on the phone so your saying I only have to go to the exam for questions and notan exam and her reply several times were yes Mr. Xxxxx, bc you already have a rating and its not a new claim. Can anybody else describe there experience with a c&p where they only asked questions. Because i called a day later and they rep on the phone stated I am having an exam. Talk about mass confusuon.

 

I know the pain from my back causing nerves to react in my legs, but I'm sure the VA is either trying to find away to deny my IU, decrease my over all rating, or denying my back and radiculopathy rating in general. Any help in this situation will be much appreciated.

 

P.S. I don't have a civilian PCP because I am not employed, I use the VA as my PCP for everything.

 

Sorry for the long paragraphs. The BEST SITE ON THE INTERNET is right here. Thanks to every who reads this, responses to it, offers thier opinion or advice in advance.

 

USN 1993-2000,

90% total,

SSA DISABILITY 

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OK, as far as the IU, it can be difficult to obtain.  When I was denied IU I appealed to the BVA and my case was remanded and disapproved so I took another trip to the BVA and the BVA made the award of IU.  In some cases the VA will really be a jerk about claims.  You need to appeal to the BVA within one year of your SOC.  I had positive and negative evidence of neuropathy and the BVA made the decision that I was service connected under the reasonable doubt, CFR  38 CFR 3.102.

You just need to show that the positive evidence was created by a doctor equal to or better than the VA examiner.  If they used a neurologist you probably need the opinion of a neurologist. 

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"Why am I not having a C&P for ED or the Urinary leakage, or am I?"

Because you have to claim them.  The VA does not initiate claims for you.  You can use what the C&P examiner says in your claim.  I did.

I had a C&P on my claim for Right Shoulder.  During the C&P exam, the doctor, checked my left shoulder, with x-rays, for comparison to my right and stated to me that I should claim my left shoulder also.  So after I got home, I claimed my left shoulder with the C&P examiner's statement "you should claim your left shoulder", and the x-rays etc.  And I won.

But, they weren't going to do that for me,

That would be to easy,

Hamslice

 

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  • HadIt.com Elder

If you take meds for ED check your myhealthyvet notes and see what they say about your E.D. ?

if they prescribe you the little blue pill that is basically a Diagnose for E.D. then  get a Dr to nexus it to a already service connected condition or medications  that is related to or caused your E.D. 

 that is of course you were not shot in your testicles. or injured them while in military  then in that case its direct service connection  but you will need doc medical proof of that.

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you have posted 80 yards of angry wrapped around the word "why".

once you calm down a bit, and we all know why you are angry and frustrated so this is not a shot or anything, remove the words "why did they..." (the va), from all your conversation. It is a useless question and guaranteed to ramp up your frustration.

Sad as it is, your path forward is too accept that they did what they did, and focus on Appealing their decision.

That is your positive way forward. Remember that frustration only affects you, the VA could care less and they don't know you're angry too boot.

So don't let them live in your head rent free.

My other suggestions to you.

1) gather all your previous awards and denials and dbq's. redact them of all your personal info. prepare them to post here

2) create an organized timeline of your events, including nexus, medical diagnosis, tests, claims, awards/denials.

3) you can post those now or wait the BBE and post that letter and code sheet too.

Your appeal to the VA or BVA needs to be organized, succinct, direct and devoid of emotional language.

No would, could, should have you rotten bastards, type language.

No I thinks, no you didn't do x/y/z, no the rater is a d-bag, type language.

What you want to present to them is a clear, concise, chain of events documenting sequences with actual evidence (properly cited) from your STR's, VA exams, and DBQ's/Awards/Denials/Code sheets.

Any buddy statements should be on the right form and put into the sequence above.

Got fired? get that statement in writing!!!! Your police union should help with that. It needs to say Office Bob was shit-canned because his physical limitations prevented him from doing the job.

Unemployed? get your SSA work history. you can do that on-line at SSA website.

Xrays?-attach them and cite them properly.. same with MRI's, CAT scans, etc.

Surgery? attach the notes and images if any, cite properly.

Yep the VA should have them/get them, but you are drawing a straight line to the conclusion you want them to make. Don't expect them to "find" or even look for the evidence to support your claim, even if it is in your C-file already. Tell them what the evidence and through proper citations show that it is with the files attached to your appeal. Do NOT give them a reason to hunt and poke around your C-file. !!!!

If you send in something like that 80 yards of angry that made up your post here, you will LOSE!

I know I don't sound touchy feely and outraged for you... but you are outraged enough for 20 people. My purpose is to give you suggestions on the direction to take. to be a calming influence until you come to grips with the sad reality, that yes the Va disagreed with you.

Now you have to fight the right way to get what you want. It really is that direct and straightforward. Not easy for sure, but you survived the military you can survive this challenge too.

 

 

Edited by GeekySquid
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You haven't said what code your 40% Rating for your back is..... but it sounds to me like its degenerative disc disease (5242)  and it sounds like your degenerative disc disease is causing nerve root impingement  on your sciatic nerve. Normally this nerve  impingement only happens on one side of the body, but it can happen on both sides.  Now in order to get the sciatic condition rating you will need to have a nerve conductive test conducted, ( this is were they stick pins in the back of your legs, from you butt on down to the ankle) , if you haven't had that test your not likely to get a rating for the sciatic nerve conditions.  If you haven't had this test, I don't understand how your got any rating for the sciatic nerve condition.... As to an increased rating for your back injury....it would be rated one of two ways incapacitating episodes which means that your doctor put you on bed rest, which is something most doctors will not do now,  the VA  requires you to have six or more weeks in bed in the last year,  to get a 60%  rating, or its rated under the general rating formula,  and unless your spine is completely  frozen you won't get a rating higher than 40%,

As to any other claims,  such as ED, and Urinary leakage if you want to claim them as secondary to your back condition again your would have to have examinations that clearly show your back condition may of caused these problems. Its your responsibility to have these examinations and they really should be done before you put in your claims because you must have a diagnoses and a nexus before your claim can be awarded. Keep in mind just because you have DDD, doesn't mean it caused your ed or urinary leakage.  Depending on your age, these conditions can be cause by a number of different issue,  the prostrate fore example can cause the ED and urinary leakage. 

I cannot stress enough how important it is to have these test in order to get a proper rating. The  results of the test will be the determining factor for your sciatic.

Also the va is not required to provide to provide you any  the forms any more than it is required to rate you for something you haven't yet claimed.  You can get most if not all VA forms on line, or you can file your claim using Ebenefits . 

Also unless you have one condition rated 60% or two conditions that combine to 70% of which one must be rated 40% you will not get a TDIU award. Now in your case since you apparently lost your job because of your back and nerve problems,  if you can prove this by a termination letter or forced medical retirement  etc,  this would almost certainly be cause to grant you TDIU.. But if you don't have anything to show why you  were terminated,   the va isn't going to take your word.   

Also if your conditions are so bad that you lost your job, it seems to me that you should have filed for social security disability  (SSD) ,  of course you will need the medical evidence and written proof of why you were terminated before you would get approved for SSD.

If you happen to get SSD approves solely  for your service connected back issues or for any service connected issue that will also help you with getting TDIU.

Edited by Richard1954
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I will add my 2 cents.  (YOU are not being "railroaded", the VA has pulled this kind of crap on all of us, that is the reason for hadit). 

I like to focus on "what is important".    You posted:

Quote

However the VA went on to say in their decision for denial "However you should be able to perform most sedentary occupational task with minimal accommodations Therefore your claim for IU is denied." 

You need to understand what this means.  What it means to you is that you need an IMO from a Voc rehab specialist that says you are not able to perform sedentary work due to SC conditions.  

Here is the deal.  If you have a "physical" disability (such as your sciatic issue, back issues, knee issues etc), the the VA will presume..ok, his knees are bad, so why cant he work while sitting down??  This does not apply with PTSD or mental issues, you have PTSD whether your are sitting down or standing up.  But, if you have bad knees or a bad back, then sitting down may well relieve the pain allowing you to work.  

To refute the preceding paragraph, you need a voc rehab specialists opinion of why this is not feasable.  In other words the Voc rehab assesment should explain why YOU are unable to perform sedentary work with YOUR SC conditions.  ONE place to find this may be your SSDI decision.  They may have already addressed this issue if you have been awarded Social security disability and maybe all you have to do is send the VA your social security disability decision awarding you disability and explaining why you can not do sedentary work.  

Social security decisions often address this, but read yours to find out.  

Example:  Lets say you are a 59 year old cab driver.  You injured your knees in service and can no longer walk without pain.  So, why cant you use a wheel chair to drive your cab?

Your firm indicates they are not able to fit your cab with hand controls so you can drive.  Your Voc rehab assesment also explains:

To drive a cab, the driver needs to be able to unload customers baggage.  You cant do that without pain.  Further, the voc rehab assement may explain that retraining to another field is not feasable because of your age, physical limitations, education level, or other factors.  In other words, it makes no sense to retrain a 59 year old cab driver to operate a computer or do accounting in your case.  By the time you got enough education to become a computer programmer, you would be 80 years old, as you would have to go back to college to learn algebra, triginomotry, Creative writing, and a whole bunch of other stuff you know nothing about as a career cab driver.  In other words, your skills as a cab driver are not transferable to being a computer programmer or accountant.  

Edited by broncovet
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