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Old decision riddled with errors?

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Vync

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  • Content Curator/HadIt.com Elder

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 by Vync
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  • Content Curator/HadIt.com Elder
1 hour ago, Buck52 said:

VYNC

You might think about requesting it again from other sources ,  other that the one you sent in for, if you sent in a request to Janesville Wi , the claims center, try  St Louis  I mean it may beat your request  & if you get 2 C-File which should be the same , but it could be faster. whichever comes in first....double dipping its called.

Also just to let you know Requesting our C-file from more than one source its ok , they may not  like it but there's no law that says we can only request our c-file from one particular place.

just a thought/tip

My submission did go to the intake center in Janesville, WI. Did not think about sending it to St. Louis.

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  • Content Curator/HadIt.com Elder

This post is lengthy, but I decided to work this in reverse, one step at a time from the rating decision, to C&P exam, to the BVA remand. Additionally, I wanted to include potential conclusions of a reasonable person. 

The rating decision was dated February 1998, so I can only consider laws or precedential court rulings in effect at that time.

Several rulings point directly back to 38 U.S.C. § 7104(d)(1):

Quote

Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990) (holding that the Board's statement of reasons or bases is adequate when it is sufficient to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court)

The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review in the Court.  38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). 

To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 

The Court "has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons or bases."  Dennis, 21 Vet. App. at 22 (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)).

 

Here is 38 U.S. Code § 7104.Jurisdiction of the Board:

Quote
(a) All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation.
...
(d)Each decision of the Board shall include
(1) a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record;

A reasonable person would conclude the reasons and bases must:

  • Be adequate to understand the precise bases for the decision.
  • Analyze the credibility and probative value of the evidence.
  • Account for evidence it finds persuasive or unpersuasive.
  • Provide reasons for its rejection of any material evidence favorable to the claimant.

 

Now let's explore the rating decision point by point:

 

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.

Here is what was mentioned:

  • Two undated complaints in service, but acknowledging a diagnosis of mechanical low back pain
  • Exit exam was silent
  • C&P ROM measurements
  • Normal X-ray
  • No acute findings

 

Would a reasonable person reading the rating decision:

  • Understand the precise basis for the decision as well as facilitate a review in court?
    • No.
      • It mentions a couple of nonspecific instances from the STRs
      • It quotes some material directly from the C&P exam report.
      • No medical opinion was stated or referenced.
      • It states, "Service connection may be granted for a disability which began in military service or was caused by some event or experience in service", before denying SC.
  • Understand the credibility and probative value of the evidence.
    • No.
      • Evidence is merely listed without any context to credibility or probative value.
  • Account for evidence it finds persuasive or unpersuasive.
    • No.
      • It does not indicate if any evidence was persuasive or not.
  • Conclude favorable medical evidence was present?
    • Not directly from the rating decision alone.
    • Favorable evidence: Acknowledgement of a diagnosis of mechanical low back pain while in service
    • Favorable evidence: C&P exam ROM values which, by today's standards, is in the 20% range.
  • Provide reasons for its rejection of any material evidence favorable to the claimant?
    • No
      • The C&P examiner's objective findings was limited to ROM measurements
      • The C&P examiner's medical opinion is not stated.
      • There are no specific instances of in-service treatment, despite there being a total of nine instances in STRs, including falls, motor vehicle accident (totaled), and other injuries.

 

And where did this statement come from?

Quote

No acute fracture, spondylolisthesis or other acute findings.

Would a reasonable person conclude that the VSR may have sought to substitute their opinion for that of a doctor?

  • Yes.
    • It is not present in any of the C&P examination reports.

 

What did the BVA remand instruction specifically request from the C&P examiner?

Quote

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 C&P required the examiner to:

  • Render an opinion as to whether etiology is to service
  • Complete rationale for the opinion must be provided
  • Claims folder should be provided

 

The C&P exam findings, in part:

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."

Would a reasonable person:

  • Conclude that the C&P examiner reviewed any medical records?
    • No. Conclusive proof does not exist.

 

But what key injuries were in the STR's (in the claims file)?

  • 1990-05-29 Fell on tailbone during PT, low back pain with radiculopathy
  • 1992-09-15 Training injury, low back pain, flat lumbar spine curvature, physical therapy
  • 1993-02-17 Motor vehicle accident (totaled vehicle on snowy road), cervical, lumbar, headache, light sensitivity
  • 1993-08-30 Injury when moving unit furniture, recurring low back pain, spasms

 

Here is the lay testimony:

Quote

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."

    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%"

What would a reasonable person conclude from this lay testimony:

  • Pain (now)
  • Continuity of symptomatology
  • Periodic weekly flare ups within mild impairment

 

Here is the C&P doctor's objective examination:

Quote

C. Physical Examination (Objective Findings):
Address each of the following as appropriate to the condition being examined and fully describe current findings:
...

    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

    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

Would a reasonable person the objective findings of painful motion are clear and unmistakable:

  • No
    • The doctor observed "motion stops when pain begins"
    • The doctor states it is not possible to measure where painful motion begins
    • The doctor states there is no evidence of painful motion (in complete conflict with himself)

 

 

Was anything diagnosed during the C&P exam?

Quote

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

What is the medical definition of "diagnosis"?

Quote

Per https://www.medicinenet.com/script/main/art.asp?articlekey=2979
1 The nature of a disease; the identification of an illness.
2 A conclusion or decision reached by diagnosis. The diagnosis is rabies.
3 The identification of any problem. The diagnosis was a plugged IV.

And the doctor's medical opinion:

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.

Would a reasonable person conclude there was a medical diagnosis?

  • Yes: degenerative joint disease of the lumbar spine of minimal degree

Did the C&P examiner?

  • Render an opinion as to whether etiology is to service
    • Yes, not related to service
  • Complete rationale for the opinion must be provided
    • No.
      • A clinical finding (diagnosis) was made
      • Objective evidence of painful motion was made (in a conflicting manner)
      • The doctor's conclusion was no clinical findings despite clinical findings being made.
  • Review the claims folder?
    • No.
      • Conclusive proof does not exist.
      • STR's exist showing the original events/injuries in service, but were never mentioned

 

And what about lay testimony/evidence?

Quote

(stating that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection'" (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)))

In Savage v. Gober, 10 Vet.App. 488 (1997), the Court held that continuity of symptomatology may be established by (1) a condition “noted” during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post service symptomatology.  The Court, in Savage, stated that if the condition was one as to which a lay person’s observation is competent, medical evidence of “noting” is not necessarily required.  In Wilson v. Derwinski, 2 Vet.App. 16 (1991), the Court emphasized that “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.”

Would a reasonable person conclude:

  • A back condition was noted in service?
    • Yes, several times.
  • Evidence of post service continuity of symptamatology?
    • Yes.
      • If there was none, a claim would not have been filed.
      • The C&P exam indicating periodic weekly occurrences with mild impact.
  • The lay observation of back pain competent?
    • Yes. There is no reason present to indicate otherwise.
  • Pain is a symptom?
    • Yes.

 

So what do we have so far?

  • The C&P exam was performed by a doctor who did not review the claims folder.
  • The C&P exam findings clearly contradict itself.
  • The C&P exam failed to follow the remand instructions to provide complete medical rationale for the decision.
  • The C&P exam made a medical diagnosis, but in conflict, the doctor stated there were no clinical findings.
  • Numerous STRs include clear and unmistakable cases of trauma (fall, motor vehicle accident).
  • Lay evidence indicates continuity of symptamatology and periodic flare ups.
  • The rating decision:
    • Vaguely references two minor complaints from STRs.
    • Fails to explain why more favorable evidence from the STRs and C&P exam was rejected and not considered.
    • Fails to explore the credibility or probative value of evidence.
    • Makes a medical determination not present in the C&P exam report.
    • Fails to state the precise basis for the decision.
    • Failed to properly apply 38 CFR § 4.2 Interpretation of examination reports by not reconciling the reports with evidence of the record to provide an accurate reflection of the elements of disability present.
    • Failed to properly apply 38 CFR § 4.40 Functional loss in regards to pain due during flare ups.
    • Failed to properly apply 38 CFR § 4.45 (f) – The Joints regarding pain on movement.
    • Failed to properly apply 38 CFR § 4.59 – Painful Motion due to healed injury as entitled to the least minimum compensable rating for the joint.
    • Failed to properly apply 38 CFR § 3.102 Reasonable doubt because there was more evidence in favor than against, including 38 CFR § 4.59.

 

I realize that for CUE:

  • Reasonable doubt does not apply.
  • Cannot involve duty to assist
  • Cannot be a disagreement as to how the facts were weighed or evaluated

But Russell v. Principi and Bell v. Derwinski state that evidence generated by the VA prior to the decision is "in comtemplation of the law" constructively part of the record and may constitute clear and unmistakable error, if the failure affected the outcome of the claim. A claim that an AOJ committed clear and unmistakable error in failing to consider pertinent evidence must be based upon evidence which was in the record before the AOJ at the time of the prior decision. 

 

 

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