Old decision riddled with errors?

[Vync]

My initial claim for my back was filed in 1995, denied, appealed to the BVA, remanded for a C&P exam, but it was denied in Feb 1998. In 2009, I filed a new claim and won (in 2013) SC for lumbar, cervical, and radiculopathy. If possible, I would like to get an earlier effective date, but did not know that at that time. 

The C&P exam is riddled with issues and the rating decision is also very vague. I started working on trying to tie this back to 38 CFR.

 

Here are the specific BVA remand instructions:

Quote

BVA REMAND.
VETERAN IS CLAIMING SC FOR [redacted]...BACK CONDITION. SEE PAGES
2, 3, AND 4 OF REMAND DATED 7-17-97. DO A GENERAL MEDICAL TO DETERMINE
THE NATURE AND EXTENT OF ALL OTHER ALLEGED DISABILITIES. THE EXAMINATION
SHOULD INCLUDE AN EVALUATION OF, BUT NOT LIMITED TO, THE ABOVE MENTIONED
DISABILITIES. ALL APPROPRIATE TESTS AND STUDIES SHOULD BE PERFORMED.
THE EXAMINER SHOULD BE REQUESTED TO ASSESS ANY AND ALL DISABILITIES PRESENT
AND RENDER AN OPINION AS TO WHETHER THEY ARE ETIOLOGY RELATED TO SERVICE.
A COMPLETE RATIONALE FOR ANY OPINIONS EXPRESSED SHOULD BE PROVIDED.
THE CLAIMS FOLDER SHOULD BE PROVIDED TO THE EXAMINER IN CONJUNCTION WITH
THE EXAM. PROVIDE ROM STUDIES, X-RAY REPORTS AND STATEMENT OF FUNCTIONAL
LOSS DUE TO PAIN FOR ALL AFFECTED JOINTS.

 

Here's the C&P exam:

Quote

A. Review of Medical Records:

    "I injured my spine in the service, but it is difficult for me to remember exactly when. It doesn't cause me a lot of trouble at this. time. I injured it the second time in September 1984."

Error: Wrong year. It should have been 1994. I admit, it is a typo.

Error: The doc did not quote from any of the in-service injuries from my STRs (including a major car accident). They just quoted parts of what I stated during the exam. 

B. Present Medical History (Subjective Complaints):
Comment on:
    1. Complaints of pain, weakness, stiffness, fatigability, lack of endurance, etc.
    
    "Now, I have pain, but no weakness, stiffness, fatigability, or lack of endurance. The pain is not every day."

Note: Lay testimony/evidence of experiencing pain

    2. Treatment - type, dose, frequency, response, side effects.

    "I went to the medical doctor in Gadsden at Durham Medical Clinic and they gave me Ultram and Lodine. It helped some."

    3. If there are periods of flare-up:
        A. State their severity, frequency, and duration.

            "Every week or so."

        A. Name the precipitating and alleviating factors.
        
            "Weather changes"
        
        C. Estimate to what extent, if any, they result in additional limitation of motion or functional impairment during the flare-up.

            "10%"

Note: More lay testimony/evidence of periodic flare ups

    4. Describe whether crutches, brace, cane, etc., are needed.

        He does not use crutches, brace, or cane.

    5. Describe details of any surgery or injury.

        None

    6. Functional Assessment - Describe effects of the condition(s) on the veteran's usual occupation and daily activities.

C. Physical Examination (Objective Findings):
Address each of the following as appropriate to the condition being examined and fully describe current findings:
    1. Using a goniometer, measure the passive and active range of motion, including movement against gravity and against strong resistance. Provide range of motion in degrees.

    2. If the spine is painful on motion, state at what point in the range of motion pain begins and ends.

        Motion stops when pain begins

Note: Objective evidence of painful motion causing limited motion

    3. State to what extent (if any) and in which degrees (if possible) the range of motion or spinal function is additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use or during flare-ups. If more than one of these is present, state, if possible, which has the major functional impact.

        Not measurable

    
    4. Describe objective evidence of painful motion, spasm, weakness, tenderness, etc.

        There is no evidence of painful motion, spasm, weakness, or tenderness

Error: Statement contradicts answer given on question 2 

    5. Postural abnormalities, fixed deformity.

        None

    6. Musculature of back.

        Musculature of the back is excellent

    7. Neurological abnormalities - if present, see appropriate worksheet.

        No

D. Normal Range of Motion: All joint Range of Motion measurements must be made using a goniometer. Show each measured range of motion separately rather than as a continuum. 

Flexion to the right 20 degrees, flexion to the left 36 degrees, forward flexion 32 degrees, and backward extension 24 degrees.

Note: These ROM values equate to 20% using today's rating criteria, but at the time the criteria was simply severe, moderate, or slight.

E. Diagnostic and Clinical Tests:
Obtain the following and comment on them, as indicated:
    1. X-rays, MRI, as indicated.
    
    2. Include results of all diagnostic and clinical tests conducted in the examination report.

    F. Diagnosis
    
Degenerative joint disease of the lumbar spine of minimal degree

Note: A clinical diagnosis was made

 

The medical opinion was placed on a different C&P exam

Quote

In answer to the remand, ...there are no clinical findings to substantiate lower back condition... I do not believe that these are etiologically related to the service.

 

Here's the rating criteria in effect at that time

Quote

From the Federal Register: FR-1964-05-22

https://www.govinfo.gov/content/pkg/FR-1964-05-22/pdf/FR-1964-05-22.pdf#page=64

5292    Spine, limitation of motion of, lumbar    
    Severe    40
    Moderate    20
    Slight    10

 

Here's the rating decision:

Quote

 

3. Service Medical Records show the veteran complained of low back pain which was diagnosed as mechanical low back plain. He again complained of pain in the back due to moving furniture. Separation exam dated 11-29-94 shows the examiner did not diagnoses any low back condition. VA examination showed range of motion as flexion to the right 20 degrees, to the left 36 degrees, forward 32 degrees, and backward extension 24 degrees. X-ray of the back was normal. No acute fracture, spondylolisthesis or other acute findings.

Service connection may be granted for a disability which began in military service or was caused by some event or experience in service. Service connection for low back condition is denied.

 

It is very vague.

It doesn't quote from specific STRs showing injuries, PT, car accidents, etc...

It says I was diagnosed in service, but the exit exam did not diagnose anything.

It says no acute findings, but the C&P doctor did diagnose DJD.

It doesn't indicate the C&P medical opinion (even though it was negative)

It doesn't indicate any criteria for meeting the minimum rating.

Possible error: 38 CFR § 4.2 Interpretation of examination reports.

Quote

 

Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

38 CFR § 4.2 1976 (emphasis added)

 

 

Possible error: 38 CFR § 4.40 Functional loss

Quote

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

38 CFR § 4.40 1999 (emphasis added)

Of course, my lay evidence (testimony) was ignored.

 

Possible error: 38 CFR § 4.45 – The Joints

Quote

 

As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations:
(a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.).
(b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.).
(c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.).
(d) Excess fatigability.
(e) Incoordination, impaired ability to execute skilled movements smoothly.
(f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions.

38 CFR § 4.45 1999 (emphasis added)

 

 

Possible error: 38 CFR § 4.59 – Painful Motion

Quote

 

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.

38 CFR § 4.59 1999 (emphasis added)

 

 

 

I assume that what the VSR did was see the C&P doc's denial and do as little as possible to close it out. 

 

Edited January 16, 2020 by Vync

[Vync]

14 hours ago, broncovet said:

You made it especially hard on yourself by not appealing the effective date of the 2013 decision.  Now, your choices are limited.  

Agree.

14 hours ago, broncovet said:

1.  Did you get "notice" of your appeal rights to the decision?  The 1 year appeal period does not start to run until the Veteran is given notice of his or her rights to appeal.  This would mean you could file a NOD now. 

I would have to check, but I believe I did get the notice. Of course, the appeal window expired in 2014, so I can't file a NOD

14 hours ago, broncovet said:

2.  Did you submit any new evidence in the period from 2013 to a year later which could mean the claim should have been reopened?  How about 1998.  The idea is to show it as a pending claim, then you can force a decision on the effective date.  

No for all of those time periods.

14 hours ago, broncovet said:

3.  Did you apply for benefits within a year of exit from service? 

Yes, I definitely did. Filed right after getting out in 1995. After rubber stamp denial, went to BVA. They learned I didn't even have a C&P exam and remanded it back to have one done. However, there is irony involving the BVA instructions:

Quote

BVA REMAND.
VETERAN IS CLAIMING SC FOR [redacted]...BACK CONDITION. SEE PAGES
2, 3, AND 4 OF REMAND DATED 7-17-97. DO A GENERAL MEDICAL TO DETERMINE
THE NATURE AND EXTENT OF ALL OTHER ALLEGED DISABILITIES. THE EXAMINATION
SHOULD INCLUDE AN EVALUATION OF, BUT NOT LIMITED TO, THE ABOVE MENTIONED
DISABILITIES. ALL APPROPRIATE TESTS AND STUDIES SHOULD BE PERFORMED.
THE EXAMINER SHOULD BE REQUESTED TO ASSESS ANY AND ALL DISABILITIES PRESENT
AND RENDER AN OPINION AS TO WHETHER THEY ARE ETIOLOGY RELATED TO SERVICE.
A COMPLETE RATIONALE FOR ANY OPINIONS EXPRESSED SHOULD BE PROVIDED.
THE CLAIMS FOLDER SHOULD BE PROVIDED TO THE EXAMINER IN CONJUNCTION WITH
THE EXAM. PROVIDE ROM STUDIES, X-RAY REPORTS AND STATEMENT OF FUNCTIONAL
LOSS DUE TO PAIN FOR ALL AFFECTED JOINTS.

The rationale states "no clinical findings to substantiate lower back condition", despite clinical findings and a diagnosis being rendered.

 

[Vync]

@buck52  I ordered a copy of my C-file on disc and it is estimated to arrive in August 2020. I'm not going to make any action on this until I have had time to review contents of the disc. I have a feeling it will be as jacked up as yours.

I do have the other two CUEs in the hopper. If those are approved, then I doubt moving my back claim from 0% NSC to 10% SC might not increase the combined percentage, but it would place it under 20 year protection.

No worries about hijacking my topic. It never hurts to share ideas and experiences.

[Vync]

12 hours ago, vetquest said:

Vync, I am also looking for an EED on my case.  It should have been an easy decision but the VA likes to make it difficult on us.  Good luck.

It makes me wonder why the VA doesn't proactively explore the possibility of an EED. It seems that the veteran nearly always has to do this. The problem is most veterans may not have any idea how valuable an EED is.

[Vync]

11 hours ago, pwrslm said:

That's a CUE. Undebatable, the examiner noted the pain, and then said it was not there. This was C&P, a govt paid exam with an error.

Reopen is gone. That's how we used to do EED for this kind of stuff. Only thing left is CUE, No? 

CUE would probably be the best option, but I would have to put together a solid argument showing various laws were broken and the resulting change would be outcome determinative.

[Vync]

5 hours ago, Dustoff 11 said:

I have some experience with filing my own CUE claim and appeal over a different issue but here is what I have been told by other so called former VA raters, DROs and VSO and it is this "A bad VA C&P exam cannot be used as a basis for a CUE claim"  This is something you should confirm from other sources other than me but I have heard them say this over and over ad nauseam for sometime.

My info is not legal advice as I am not an attorney, paralegal or VSO.

It definitely does appear to be a bad C&P exam. That's why I am looking for any laws in effect at the time that were not followed properly.

[vetquest]

10 minutes ago, Vync said:

It makes me wonder why the VA doesn't proactively explore the possibility of an EED. It seems that the veteran nearly always has to do this. The problem is most veterans may not have any idea how valuable an EED is.

I never knew the value of an EED myself.  I believe the reason the VA does not do this is for cost savings.  The same as delay and deny.  In my EED case the VA saved $40,000 by giving me an EED that was not at the time of disability and I am still fighting it.