Spondylitis Association of America
Posted By: jjnavyvet Writing an appeal - 09/13/06 07:38 PM
I am in the middle of getting an appeal together and can't rely on the DAV for advice so I'm turning to you to make sure I'm not getting into something that I shouldn't.

When we received the decision from the VA, the VA Examiner said that my husband walked with a cane. But he never did walk in with a cane let along use one. Now at first we thought that we shouldn't say anything about it, but it really shows how little the examiner was really paying attention to the exam if he saw something that wasn't there. Also, the VA examiner had my husband lie down on the examining table and picked up his legs and literally pushed his knees to his shoulders while my husband was pleading with him to stop. The VA examiner said "you're exaggerating your pain and I was able to move your legs and you could sit down with your knees bent." So that became part of the Decision that "while distracted my husband could move his legs" not what really happened and no mention of getting pain meds ever since to deal with it.

My question: Do I make what happened in the exam part of the appeal? My husband was having a flare up that day and I'm using the DeLuca Criteria as part of the appeal, too. But if an examiner takes your legs and moves them in such a way just to say you could move your legs and doesn't make that part of his report, do I bring it up in the appeal? I have put a report in with the Patient Advocate, did that the day after the exam.

And the cane-how much attention was this guy paying? And my husband's file was missing, too. Any and all advice would be greatly appreciated. Diane
Posted By: LuvinGod3fold Re: Writing an appeal - 09/14/06 04:22 PM

I prepared my own appeal to the BVA. But before I comment or post a response in answer specifically to your question, have you posted on what is wrong with your husband? I mean, is there a post somewhere that you can direct me to where you posted on your husband's dx? It would help me in better answering your question.

My appeal is currently awaiting assignment for a hearing, which has been, thus far, a two year process. Not to discourage you, but rather to inform you the sooner the better.

Additionally, there is an established time frame to respond within. Beginning with your NOD or Notice of Disagreement. Once the VA responds to your NOD, you will receive correspondence from the giving instruction on how to proceed (usually they will send you a Form 9).

Also, are you filing a claim for service-connection or rate increase for an existing service connected disability? This also makes a difference in what you will need to present in your appeal. The va.gov website also gives you a lot of information to help guide you through the preparation of your appeal packet.

My appeal is for entitlement to a rate increase for an existing service connected disability.

Hopefully others will reply to your post because I know it's been a different ride for all of us.

Best Regards,
Posted By: jjnavyvet Re: Writing an appeal - 09/14/06 06:21 PM
Hi Cynthia,

My husband was last evaluated at 40% with chronic lumbosacral strain, with spondylolisthesis and bilateral spondylolysis. He was trying to get it increased. During the c & p exam, the Physicians Assistant hurt him - I was present in the examining room so my impression was that the PA was losing his patience with my husband who was having a flare-up for the days before and on the day of the exam. He forced his legs into his chest, in my opinion to be able to say he was faking the severity of his injury. Yes, it is service connected (1969). So my question and maybe Mike might also be able to advise me on this: Do I state in the appeal what happened with the PA? At any previous exam (and over the last 35 years, he's had at least 6 or 7 of them)when he said he could only move so far, the doctor never pushed him and this PA quite literally pushed his legs. That is not the only evidence we have but it bears on how the PA wrote up the exam (a copy of which I have) and the fact that he talks about a cane that wasn't there, bears on how much attention he obviously wasn't paying. I was told by one vet that the absence of file should be brought out because he was doing an exam with no history (we tried to give him one in a very brief time and I did have some information from our private doctor).

I do have some information on the DeLuca Criteria but can't find the post where Mike talks about it not needing x-ray evidence to support flare-ups which I read in the last month but have tried to look in the archived posts but haven't been able to put my finger on it. If anyone could direct me to that, I would appreciate it.

I realize that I have to put this appeal together myself but when I call the DAV office in NYC and leave a message for the officer to get back to me, he has never, ever called me back. Even when we were trying to get a letter from our doctor to the VA, we had to write a very long letter detailing our experience with the DAV not responding to our calls to forward the letter and that very letter which was, in my opinion between us and the DAV was forwarded to the VA and is in my husband's file which lets the VA know that the DAV is not helping us out at all. So the VA must be pretty confident that I am winging it on my own. It's a pretty depressing and lonely fight but they keep sending me notices that they need their next DAV membership payment. So I can decide if I pay for my husband non-service related prescriptions or the DAV. If I sounded disgusted, I am.

Ken - if you could get back to me about why you needed the information you requested, I would appreciate it.

Thanks everyone again, Diane

You are all I have.
Posted By: LuvinGod3fold Re: Writing an appeal - 09/15/06 01:55 AM
All information is pertinent. Presenting your case to the BVA is much different than a review officer at the VA deciding it because they take all things into account.

I know the primary concern is going to be whether or not you have supporting evidence (medical records and doctor annotations in your husband's medical record) confirming that your husband's condition has worsened.

VA has not disagreed with my dx of AS and, in fact believes it is "severe." What they have been playing on is the connection between the lumbosacral strain, chronic and the AS. The lumbosacral strain, for which I get 0%, by the way.

I've been through the cases on the va.gov website and it appears I must be one of the few who does not receive anything for my lumbosacral strain, chronic. Doesn't make sense. So my claim for entitlement to an increase is for that. However, I took a different with the AS dx and filed a new claim.

Also, I do know that VA takes a littel different stand with those who are either just getting out of the military or have been out less than five years.

So, to answer your question, yes you should state what you observed, as his wife, in an attached statement. But you should also write up the appeal, coming from your husband, with his recall of the exam. You mentioned there was the report of a cane when in fact there was no cane. I would also include this factor. What I wouldn't do is write out the appeal statement as though it were coming from you. But, rather, as if your husband had prepared it. There is the option of presenting statements from family and friends afforded to him. So, you writing statement is also something I believe you should definitely do. Get statements from anyone familiar with your husband's present condition. Especially, statements from qualified medical professionals.

I know it's frustrating and I'm so sorry for all the hardship it is bringing upon you and your husband. But stay in the fight. I believe it will be worth the cost of the disgust when it's all said and done.

Take care
Posted By: mmparker Re: Writing an appeal - 09/15/06 02:34 AM
Send me an email and I will send you a memo that might help get his exam conducted correctly.

Posted By: jjnavyvet Re: Writing an appeal - 09/15/06 03:19 AM
Will do, thanks, Mike.
Posted By: LuvinGod3fold Re: Writing an appeal - 09/15/06 04:26 PM

I'm glad you came on the scene. So, now I have a question for you. What route do you go when the VA RO's are 'seemingly' refusing to take all of the information (you've so kindly provided) into account?

If the regulations are clear on the matter of how to adjudicate these claims, why is the VA (especially here in AZ) obstinate in ignoring the facts?

I decided to heed your advice and submit a new claim for the AS because VA refuses to acknowledge a connection between my service connected disability and the AS. Additionally, they refuse to acknowledge that there was a probable misdiagnosis to begin with. In that my back injury triggered the onset of the AS process, beginning with bilateral sacroiliitis, in conjunction with the lumbosacral strain, chronic (which is the medical description they've applied). This also brings up the chronicity factor they (VA) continues to ignore.

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