Chronic Thoracic & Lumbar Strain 0% Service Connection Questions

[Brian360]

Hello,

I have more questions than I can find answers so I thought I would create a post to see if any of these can be answered? I apologize for the length. I have read, read, and read some more on this board for years and I very much appreciate any assistance that can be offered. I will also be donating to support this all-important forum once I can get through this snail-pace of a process!

I separated from service almost 6 years ago after 14 years in. I am currently rated at 30% disabled as I received 10% each for tinnitus, hypertension and a metatarsal fracture that occurred in service. I also received 0% connection for chronic thoracic & lumbar strain due to morbid obesity (?!). This grant to service connection dates back to the day after I got out of the service. I am not "morbidly obese" and this really bothers me that they have this described as such. I mean, why would they service connect if it's due to being overweight?? Makes no sense to me. Are they inferring that they are taking responsibility for being so called "obese" as well? We all know that you get kicked out of service if you are outside the physical readiness/weight requirements ... very frustrating and even insulting.

The C&P examiner told me that he didn't have time to evaluate everything I had claimed so he didn't even look at some of my claimed issues physically, but I was still denied by the VA regardless as no service connection for some of these unexamined claims. Anyways, the C&P doctor told me to basically push through my discomfort (discomfort was evident) when conducting the range of motion part of my back exam, and he even placed his hand on my back when telling me to push further. I did not know at the time that he was not looking out for my best interests...so my range of motion came back within normal limits. I feel that this was wrong on his part but I did not know at the time, and I am afraid if I did complain about this now that I could risk losing my service connection? My back is in very poor condition from the service. In fact, I was on light duty when I separated because of a back injury I sustained a few months prior to my separation. I do have copies of my STR's and I have numerous complaints of back pain throughout my many years in that nothing was done about as they were just complaints noted, and I do not have the STR from the back injury. I was sent to medical and they shot something into my back and I immediately felt relief but my back has not been the same ever since. My back issues are causing me an excessive amount of lost time at my current job. I just went to the VA at the end of last month as a walk-in because the pain was so much and they took x-rays and named FIVE things wrong with just my lower back. I am now waiting for the VA to send these x-rays to my civilian doctor to have a comprehensive MRI done at the local (non-VA) hospital and then I will go forward from there in deciding how to approach this. The VA doctor "just" said I have facet joint arthritis, but VA radiology noted five things wrong?

My first question is how should I proceed with adding these conditions and/or getting an increase from 0%? Does anyone know what "chronic thoracic & lumbar strain" service connection covers? Is it just strains or does it encompass the whole lower and middle back and all associated conditions of these areas? My x-rays from the VA in August of this year report "superior plate wedging at T12, this is age-indeterminate and correlation with physical exam for symptoms of point tenderness would be beneficial (again, I was a walk-in at my local VA clinic that day and the doctor didn't have time to see me...). Multilevel anterior endplate spurring throughout the lumbar spine. Lower lumbar predominant facet anthropathy. Bony neural foraminal narrowing at L5-S1. Mild Vascular Calcification". This was all through x-rays so I am sure an MRI will show more...which I will have done soon.

Should I even complain about this C&P doctor at this point almost 6 years later or would I risk losing the service connection? I need to know what they have on my back at the VA that caused the service connection, I do know this. I do not have a copy of the record of my back injury from right before I got out and I am thinking/hoping that they do, but I will not know until I get the C-File. I need my C-File (I know, I should have requested it long ago...I am learning).

My main question is, can I request a copy of my C-File while I have an open appeal (on other first year out of service claims -- open since 11/2019) and I also just put in for two new claims at the beginning of this month that are moving fairly quickly. I have heard that requesting your C-File can cause delays and possibly affect open claims and appeals you have on-going...and I of course do not want to cause any kind of a delay. Since my separation I have only filed my initial first year claims and I filed appeal on some of those denials. I have waited all of these years and not done anything more because I was under the presumption that you cannot file any new claims until the appeal is processed and closed. I did though just file two new claims this month once I was informed that presumption was wrong. 

Lastly, does anyone have any recommendations in how I should proceed with all of these new back findings (and also what becomes of the MRI in a couple of weeks) with regard to my already service connected chronic thoracic & lumbar strain -- due to morbid obesity(!!). New and material evidence to reopen? New individual/separate claims? File for an increase in rating? Secondary's? Or, should I wait until I have my C-File to see what they are basing the back service connection off of? Also, shouldn't thoracic and lumbar be two different conditions/disabilities? 

Sorry this is an overwhelming amount of information; I am so overwhelmed and discouraged by this whole process...and pushing through constant pain to boot.

Any suggestions would be greatly appreciated!

Thank you!

[brokensoldier244th]

Thoracic and lumbar are the same as far as ratings go. 

 

If you are already connected, file for an increase- you can't file a new claim since you are already SC, It's just an increase request (or an appeal, more on that in a second). Cfiles are almost all electronic now So they aren't holding up your claim anymore. They used to be actual physical folders that had to get sent all over the place but that started stopping (started stopping?) some years ago. 

After 6 years it's kind pointless to argue about the doctor now. You could file an appeal on an 0995 but you have to have new and relevant evidence that wasn't considered for the original decision- your new stuff is great but it doesn't support a higher rating for then because it's based on now and not then. So, I'd file for an increase. 

 

Could be five deficient joints. You have one thing wrong that encompasses 5 things. Dont over think it. 

 

Secondary is only conditions you are trying to connect to an SC condition. I see a lot of vets lately claiming things secondary to all sorts of stuff they aren't SC for. The regs for secondary say that it's a contention caused or aggravated by an already SC condition. I get claims all the time with a 'root' symptom claimed, and then a list of stuff that they are claiming secondary to it- but thats not how it works. The system scans the 526ez when it comes in and they generate automatically- we then go through them and clean up contentions that are mis-spelled or incorrectly attributed as 'new' or 'increase' or 'Secondary' or whatever, based on the actual 526 that we also have as a PDF in your file. So, you upload PDF, system then 'reads' PDF with optical character recognition, but its not 100%, even in the business world.

 

The service itself, or the National Personnel Records Center sends us the records when you discharge,  or we request them - its literally a checklisted item-, but sometimes what they send us is incomplete especially when they do it around the same time you are discharged. If you note the records from separation in your claim itself in the remarks, that tells us to look for those and we'll request them again. You're decision letter also should also list all of what was considered. If you medboarded we usually have or get that, too. 

 

When you upload documentation we can rate off of it if it is complete enough but we still have to request an extant copy of your records according to Duty to Assist. 

 

 

Edited September 18, 2021 by brokensoldier244th
clarity, typed on phone, added some details

[pwrslm]

Get a copy of the C-File. This is important because if the C&P examiner said you experienced pain in the lumbar/thoracic exam, they should have given you the minimum (paying) rating, or 10%.

The same with anything else you claimed originally. The C&P examiner may have stated that it is not likely that the condition is SC, however, there has to be documented reasoning behind all of the determinations. Example is that SM claimed a problem with knee pain, yet there was nothing noted about it in the exam, but the issue was noted in your Service Medical Records. If you claimed the knee, and they ignored the history, then you can make them revisit the decision. Anything you claimed 6 years ago that was not noted on your entrance exam should be SC as long as you had no history of the condition prior to entrance into the service. I take it your claims were made w/in 1 year of discharge, which means all of them should have an effective date 1 day after your ETS.

The C-File has all the info that the raters use to make decisions on the claim. This included the reasoning behind the C&P examinations. Collect everything you can get your hands on, including the service records (201 File) and medical records. They all are tools that you need to challenge VA claims when there are errors. If there was an error you will need to document it fully to fix the problem. IF the error was Clear and Unmistakable (CUE) you will get back pay from day 1.