Questionable Diagnosis

[burkhm]

Team,

Since I filed my claim in 2002, I have been bewildered by the decisions of the VA concerning my case. BRIEF HISTORY: During my 26 years on active duty, I was periodically seen for various joint conditions and pain. All of the conditions can be contributed to years of physical abuse of the body, parachuting, rucksacking, etc. It all started with my left foot being injured after a parachute jump. Initially diagnosed as a sprain, several years later and numerous tests, it was determined that I had an auto-immune disease going on and the foot was fusing on its own. Eventually after waiting for a couple of years for the foot to fully fuse, a decision was made to attempt to speed up the fusion process surgically. Over a ten year period, I had three surgeries on the left foot and during the last surgery, a nerve was clipped and I lost feeling on the left side of the foot. Additionally, the middle toe was operated on to remove bone growth and also fuses the toe. As you know, problems with the feet contribute to other joint problems. I eventually had to have two surgeries on my cervical spine to fuse C4-C5 which left me with extreme limited range of motion in my neck. I’m also experiencing tingling and numbness in arms and occasionally in legs. A compression fracture was also diagnosed at T-12, although I refused any surgerical treatment for this. All my other major joints, shoulders, hips, and knees were diagnosed as degenerative joint disease and the rheumatologist provided numerous anti-inflammatory medications for the pain and swelling. My initial claim identified all of these joints as there was plenty of evidence, both medical records active duty and post active duty and also diagnostic tests to support. I also filed for scars from surgery, GERD, anal fissure and conjunctivitis of the eyes. VA DECISIONS: Originally in 2002, I was rated at 50%, given 40% for Rheumatoid Arthritis and 10% for the compression fracture of the spine. I non-concurred with this decision and in 2004 was given an additional 20% for neck condition, now total disability is up to 60%. I appealed this decision in September 2004 by submitting a VA Form 9 and continue today awaiting a decision. So as I understand it, all my original issues are under appeal. I believe the evidence I presented supports my claim for approving a disability for all of the affected joints. Bone scans and X-Rays don't lie. I continue to be seen by Rheumatology and Orthopedics for these conditions. ADVISE: What do you think? I believe the VA didn’t want to rate me for all the affect joints and assigned me a 40% rating for Rheumatoid Arthritis. I believe they’re attempting to rate the nerve damage as part of Rheumatoid Arthritis. Thanks!!!!!

[Berta]

"I didn't realize the VA worked on Saturdays, but it was sure a pleasure hearing from them."

My VARO works on Saturdays to get out VCAA letters.They have plenty of remands at the BVA because they fail to send them PRIOR to the denial and then they fail to send a proper one anyhow.

I made a big fuss over this last year at a higher level and they promised me VCAA letters on my claims filed in 2003 and 2004.

I have never gotten a legal VCAA letter yet.

Your DRO has jurisdiction only over what you appealed initially that spurred the DRO review.

After getting the SOC you will have 60 days to respond.

You should rebutt every single thing that might be wrong and send them more evidence if needed.

If they failed to send you a proper VCAA letter when you first filed this claim-telling you- as a highlighted or underlined statement saying exactly exactly what you needed to send them for a proper award, (not the generalized crap at the top of the letter) they have violated the VCAA and the BVA will probably have to remand it- this could take an additional 2 more years.

I assume you did get the legal version of the VCAA letter-

you will need to rebutt with probative and competen medical evidence watever they got wrong.

If the C & P examiner's report was inadequate you must rebutt that and tell them why it was inadequate.

The VARO is supposed to consider your rebuttals and expand on the SOC or award.

Some VAROs never even read these responses and A.try to send it off to the BVA.

Before your claim is transferred formally to the BVA you have chance to send more info-within either 60 or 90 days-I forget which-

VARO will tell you to send this additional evidence directly to the BVA. I strongly suggest that you send it to the BVA and the VARO certified.

I had a claim at the BVA which the RO awarded prior to BVA docket in 1996 and also one this past Sept. which was remanded.

A vet has to do all they can as they go through this miserable ordeal that takes so long, to access and develop the best medical evidence they can get.

[Vike17]

burkhm,

If the DRO told you they were going to issue a SOC, that means they're going to further deny your appeal. Did you submit the objective radiological images you said you had showing degerative arthritis or do you still have them yourself? If you did not submit them to the VA, once you receive the SOC you may want to submit them as "new" evidence and request the VA to reevaluate you claim and either grant the benefit sought based on the new evidence, or issue Supplemental Statement of the Case (SSOC). If you decide to do this, make sure you submit the new evidence within 60 days of the date of the SOC!. If you decide you want to take your case to the BVA, make sure you submit VA Form 9 within 60 days of the SOC!.

Many Regional offices have been working Saturdays for quite some now to try and peck away at the enormous backlog.

Vike 17

Edited March 5, 2007 by Vike17

[burkhm]

Vike,

Does issuing a Statement of Case (SOC) mean that they will deny all disabilities on appeal or can it approve some and disapprove others? If all are denied, I've definitely got some work to do, mainly getting IMO's that I hadn't pursued in the past. I believe that the VA has all my radiological images. However, I read that even if positive for DJD, this doesn't necessarily rate as range of motion also has a factor. Also, does the VARO have real time access to your medical records? I have had numerous x-rays and bones scans done at the VA Medical Center and in the event I didn't send some of these results in, will they be able to view these or do they only have available what I have sent them? Appreciate the heads up for the time line I have upon receipt of the SOC. I am curious to see what my self appointed Power of Attorney (DAV) advises me as they will probably know what the decision is before me. Yours, Berta's, and others on the board's advice has and will continue to assist me in my claim and I sincerely appreciate it.

[Vike17]

burkhm,

You asked;

"Does issuing a Statement of Case (SOC) mean that they will deny all disabilities on appeal or can it approve some and disapprove others?"

which raises a very important issue. The VA is required to issue a SOC when they are unable to grant a particular issue in full. So, for example, let's say you have an appeal for PTSD which is currently rated at 30% and the DRO comes back and grants an increase to 70%. The DRO would send you both a rating decision outlining the increase to 70%, but would also send you a SOC stating why they were unable to grant the highest amount allowable, in this case the 100% evaluation. Does this make sense? Furthermore, the DRO may have been able to grant some issues on appeal and deny other as you asked. If this is the case the DRO will send out a rating decision on the claims he granted on appeal and would also send out a SOC outlining the reasons for confirming any previuos denials. So, if you have multiple issues on appeal and the DRO said he/she was issuing a SOC, doesn't necassarily mean the end of the world. Just hang tight until you receive the official word from the VA and then proceed from there.

As far as the question whether the RO (Regional Office) has access to your medical records at the VAMC, your best bet is to let your RO know at what VAMC and approximate dates you were treated for any claimed disabilities. They will then obtain those records under the "Duty to Assist." You can also get copies of those records yourself and send them to your RO, this may speed the process up a little. One thing to keep in mind is that the RO, which is a part of the VBA (Veterans Benefit Administration), and the VAMC, which is a part of the VHA (Veterans Health Administration) are two seperate entities within the VA. They normally have nothing to do with each other than communicating between themselves when it comes to scheduling C&P exams or when a veteran is hospitalized due to a service-connected condition.

I hope this helps!

Vike 17

[burkhm]

Vike,

OUTSTANDING and crystal clear information and advice. I will wait until I receive the official word from the VA and then proceed from there, using all the advice you and others have provided to solidify my case. I recently requested a copy of my C&P exams which I was going to provide to my personal doctors for use in writing IMO's. Today, I plan on requesting a complete copy of my C-File just in case there is evidence there that the VARO is not in receipt of which I can present as part of my appeal. Thanks again!!!!

[Pete53]

My experience is that the VARO actually quit looking at VA treatment or progress notes once they got the first ones when I filed the claim. I routinely submitted copies of progress notes as it took me over 5 years to get 100%. 5 years is a long time for medical treatment.