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Denied for lumbar spine scoliosis-but c&p examiner diagnosed 3 disabilities for lower spine

todd marine

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I was denied for scoliosis, lumbar spine but under "favorable findings" in my decision letter it says "you have been diagnosed with a disability".  During my C&P exam the examiner told me "I cannot service connect you for scoliosis, you need to re-file your claim for lower back pain".  It was at this moment I realized my VSO did not listen to what I was telling him to file.  It was obvious he was not paying attention to me since my appointment was cutting into his lunch break...  I have refiled for lower back pain but I will lose 15 months of back pay.  Is there any way to appeal my decision for "lumbar spine scoliosis"... Any ideas or advise?

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todd marine I don't think so. You filed for a specific disability, "scoliosis", when you should have just used the more general category of "back pain or lower back pain." We put ourselves in a box sometimes by being too smart. We aren't doctors, well at least I'm not. So our self-diagnosis isn't going to work. If you appeal, it is a supplemental claim. For back and knee or other joints especially, generalize the disability you are going for. It won't fly with your symptoms UNLESS you can get a doctor's diagnosis that that is exactly what you have. So, you have to file a new claim, not a supplemental claim; your continuous time chain is broken. Get a new diagnosis from a doc on your back. Just because the C&P examiner said you should re-file, doesn't mean he gave you a diagnosis. Remember the 3 things you need: 1) a current diagnosis, 2) event in the service ,and 3) a connection or nexus connecting the two.Trust your gut. You had a bad feeling about the VSO. File your new claim yourself, or get a VSO that you really check out. Then I would go back to the first VSO and hand him a $5.00 bill and say here you go. You were in such a hurry to go to lunch that you blew my claim. Listen to the veteran your trying to "help" next time. You cost me $X because lunch was more important to you than doing it right. He sure as hell won't like it, but maybe, just maybe, he'll get the message for the next veteran that comes thru the door.

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 I have refiled for lower back pain but I will lose 15 months of back pay.  Is there any way to appeal my decision for "lumbar spine scoliosis"... Any ideas or advise?

I will have to start with this (IMHO) IS MY HUMBLE OPINION.  Since you already filed a new claim wait until VA grants your service- connection and then file a disagreement (SUPPLEMENTAL OR HLR OR BOARD APPEAL OR NOD) and ask for an Earlier Effective Date. When a veteran files a claim, the veteran may ask for a specific disability, but the VA is supposed to rate the veteran’s symptoms and incorporate any disability that those symptoms could be. If the C & P examiner gave a positive medical opinion even though it does not specifically state that your scoliosis is service or military related, but you have a service or military related lower back, lumbar back or back disability then you can request that VA consider this your original claim. Now please, be forwarded that your claim for an EED (EARLIER EFFECTIVE DATE) may have to go to BVA to get granted but at this stage it is probably the best way to try to get an EED. So, first get your claim granted service-connected and then go for the EED. I am quite sure others will chime and an may have their own or even a better option but since you already have a claim pending, this is one way to try to get your full retro pay.  The key here would-be found in Clemons VS. Shinseki. Your military and post records may not say that you were treated for scoliosis, but you were treated for lower back pain, back pain or lumbar pain

In accordance with "Clemons V. Shinseki, 23 Vet. App. 1, 5 (2009)" (when determining scope of a claim, Secretary must consider the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim”). Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits.  The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled.


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Both above are correct, and you are in for a fight right now.  Get the service connection and then fight the EED.  I have heard of them fixing it prior, but it is good to keep in your mind you have a long fight ahead of you.  

Keep fighting, and you will win!

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