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Well, we got denied
#102003 07/12/06 07:50 PM
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Got our official denial letter today continuing my husband at 40%. Being that he has no fractures, his condition has not worsened enough to get even bumped up to 50%.

I have a question that maybe Mr. Parker could answer for me: Does the VA request letters from doctors directly from DAV or State VA representatives? In our case, the State VA representative called me and asked for a letter from one of our private doctors and I was wondering if that was a routine thing. Thanks for all your helpful information, Diane


John
Re: Well, we got denied
#102004 07/12/06 08:17 PM
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I have no idea. Does this mean your husband is at 40%?

As far as the rating, the key would be the rationale they used. Some VA officies do a great job in the rationale, walking through each applicable provision and why it did or did not apply. Other offices are very weak in this respect. You deserve a rationale that covers all the points in language that makes sense.

Mike

Re: Well, we got denied
#102005 07/13/06 12:23 AM
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My husband was at 40% hoping to get an increase.

What the decision said was: your lumbosacral strain, with spondyloisthesis and bilateral spondylolysis has not worsened to the degree to warrant a high evaluation. There is slight straightening of the lumbosacral curvature. There is no erythema of the back. A higher evaluation of 50% is not warranted unless there is severe limitation of motion with demonstrable deformity of a vertebral body from fracture." And then they went on to quote from the PA who did the C & P exam at the VA Hospital who hurt my husband in the exam saying that if my husband could sit in a chair, but not when he was lying down, he was basically exaggerating his pain.

We found that there was more emphasis on proving that my husband was only out to get a higher percentage than treating my husband in the VA clinics so we treated with our own doctors and they quoted from those reports but it was so out of context that if this is what was given to examiners to read rather than the actual report from the doctors, I can see why they didn't increase it.

I'm sorry if I am not being very clear as it is exceedingly upsetting dealing with the VA and to be honest, the DAV really let us down in this too. Our rep never checked my husband's file and trying to get an additional letter which the VA asked the State VA rep for took 3 weeks. I don't mean to sound negative regarding the DAV but I expected more and I don't understand why it was handled in the way it was. We have no experience with them and from what I had read on this site made us investigate having them help us. We received no advice or guidance in how to handle the added injury the PA caused. In fact, I sent a letter to the DAV rep asking for advice along with some additional medical information. And then I find he simply forwarded that letter which fortunately did us no harm or no good but I was hoping that he would have contacted us and asked if this was something we wanted to have submitted. I would have said no. He did nothing independently but send cover letters. Again, I apologize if I offend anyone including yourself with any of my comments but it is a very gray day here and my husband is still in the same medical situation. Diane


John
Re: Well, we got denied
#102006 07/13/06 01:44 AM
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I am absolutely not offended. I have a love hate relationship with the DAV myself. I was only trying to get clarity on your situation without haveing to reread a lot of posts. The examing doctor is suppose to use VA approved checklists to ensure they cover all the bases as they relate to VASRD guidance. That is why I was interested in what they wrote. Here is a link to these checklists:

http://www.vba.va.gov/bln/21/Benefits/examinations/index.htm

See if they covers all the basis and appeal the decision if they did not.

Review the criteria in the VASRD. Pay special attention to para 4.40 and 4.45 of the VASRD as they give areas to consider for functional loss and issues with joints. You need to reveiw all other paras between 4.40 and 4.73 as well.

Mike

Re: Well, we got denied
#102007 07/13/06 04:27 AM
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Thank you, Mike, I will go over the information you suggest and let you know how we make out. I appreciate your feelings with the DAV - I am still not totally giving up on them but I think they need a wake-up call. Diane


John
Re: Well, we got denied
#102008 07/13/06 12:09 PM
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Mike,

I clicked on the link you provided but it is not there any longer. Diane


John
Re: Well, we got denied
#102009 08/24/06 07:20 PM
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As I've already posted, I've been out of the loop here for some time. But I am finding the posts on this board to be where I'm at right now.

I began not knowing what my dx was or would be. It was finally definitive after a bone scan in 8/05 that I had "active disease," which is getting worse rather than better.

At any rate, shortly thereafter, I was awarded SSD based on the medical findings presented by my VA physicians. Since that time, I now have an orthopedic physician and a podiatrist. All due to continued progression of this disease.

Nevertheless, in reading this post it became clear that it is not just the DAV office that I'm dealing with but it occurs every where. I have learned in the past three years of my fight with the VA that nobody is for you like YOU. Just like with AS and being properly dx'd and cared for, we (veterans...and or their spouses) must be very proactive in the fight for rightful benefits.

I am service-connected at 0% for a back injury which is suggested by VA resulted in chronic lumbosacral strain. I've seen posts on this board where vets are getting at least 10-20% for that alone. I'm not getting anything. I am now awaiting a hearing b4 the traveling BVA board, which I've been told is being sited for 2007. mad

Cynthia

Re: Well, we got denied
#102010 08/25/06 11:10 AM
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Cynthia,

I don't remember the details of your case, but based on your recent posts:

You are service connected for a back injury/continual L. strain. Did you hurt your back while on active duty or did they say you must have hurt your back because you have back pain?

How long was it from the time you left active duty and you had X ray evidence of SI joint fusion? Do you have X ray's showing no fusion and then later on X-rays that do show fusion? Or, is it a case of when they finally got around to X raying your SI joints and looking they saw the fusion although it could have been present for many years?

You might consider the following argument. Your AS began on active duty as back pain that was explained away as a back injury and L. Strain.

The time lag between initial back pain and SI fusing is highly variable. It can happen in as quick as 3 or as late as 18 years after the onset of back pain. The average is around 7-9 years I believe. I have a study that demonstrates these number somewhere and when I find it I will get it to you.

If your back pain started while on active duty and your SI fusion began showing up on x-rays 18 years or less after you left active duty, you can make a case your back pain was early AS that began while on active duty thus making it service connected.

The VA is suppose to give benefit of the doubt to the service member. So build a plausible case based on the medical evidence you have and remind them of the benefit of the doubt provision.

Your case is not atypical. Back pain misdiagnosed that is later determined to be AS. They VA should but will not connect these dots by themselves. If you connect them for the VA making reasonable arguments and using medical evidence and benefit of the doubt, they will likely have to rule service connection for AS leading to higher ratings.

Mike

Re: Well, we got denied
#102011 08/25/06 04:57 PM
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Mike

Let me first say that you are indeed a blessing. You were very instrumental in my getting to the point that I'm at today with the VA. I greatly appreciate your knowledge and wisdom and want you to know your labor is not in vain.

I sustained an injury to my back while on active duty moving furniture in the barracks on a barracks cleanup detail. We were ordered to move a desk from the second floor to the first floor. The other person lost their grip and the weight of the desk shifted on to me. I fell backwards on the stairs and the desk bore down on my lower abdominal section with my lower back pinned on the stairs.

My medical records indicate the aforementioned. They also record continual complaints of lower back pain and pain in legs. 16 November 1978, LTC Henges, USAF, MC confirmed medical condition as Lumbosacral FAcet syndrome and issued a permanent physical profile declaring no prolonged standing, no prolonged sitting, no heavy lifting, and no bending. Well, this obviously went ignored because I was service connected for a "bona-fide" back injury. However, at the time of rating it was rated down to lumbosacral strain, chronic. I was awarded 0%.

I separated from active duty service in 1984. There were no x-rays performed at discharge because I was pregnant. So, they wouldn't know if there was beginning evidence or not.

From time of discharge to 1992, I was married to active duty and continued to be seen for low back pain, as well as pain in my legs. My gait was abnormal on and off and I was goint to physical therapy on and off.

From 1992 to 2003, I went to civilian doctors when the pain became unbearable and they pretty much prescribed the same treatment as the military.

In 2003, I finally went to the VA hospital here in Tucson and a series of tests were performed. The tests came back positive for the HLA-B27 antigent and my sed rate was high. This led my PCP to request x-rays. They x-rays came back showing fusion of the SI joints biliaterally. My VA rheum then stated in my VA medical records: "Ms. Chinn initially began with lower back in 78 while on active duty in the service. DX at the time was lumbosacral strain, chronic. Pt. now has radiographic evidence of complete fusion of bilateral sacro-iliac joints indicating long-standing inflammatory arthritis of these sites. It is no question that her initial presentation while in service was the actual onset of this disease."

I have had two rating examinations ordered by VA in which the rating examiner has concurred with the VA rheumatologist on both those equations. In fact, in the exam on 11?04 he stated in an addendum: "The degree of pain with motion either the lumbar or cervical is such that she is effectively incapacitated daily during the past year or more." Yet, he did state that while he believed the onset of the AS began at the time of my original dx (back strain) in service, it would not have caused or been related to the AS. The injury could have triggered the AS but the cause of AS is unknown.

Today, I have continued advance disease per a bone scan done in 2005 and it is "officially" recorded in my medical records that pt. presents with "AS active disease; secondary Fibromyalgia, chronic pain syndrome, lumbar ridculopathy, facet arthropathy, Hallux rigidis in the great toe bilaterally (which has undoubtedly been caused by the weight bearing factor due to SI joints being fused), and the list goes on.

Recent (8/17/06) ordered by my Rheum indicate moderate sclerois and erosion of the symphysis pubis, including other seonegative sponyloarthropathies. Degenerative disease of the hip (bilaterally). There is facet arthropathy in the lower spine and squaring of a few lumbar vertbra.

There is advanced degenerative disease of the C2 thru C4 cervical spine.

The argument you suggest I present is the one I have been presenting. I "studied" the VASRD and referred them back to their own regulations. Per 3.303 Principles relating to service connection under (b) Chronicity and continuity, I should be awarded more than 0% on that principle alone.

I did also include the benefit of the doubt provision you mentioned. I am now at the hearing stage in my appeal, which is not due to be scheduled until sometime in 2007. I have asked if there is ever a situation where the file is reviewed before actually going b4 a board. In other words, I know I appealed the decision the VA imposed and requested a hearing because I was options. However, SSA has this thing where they do an "On The Record Review" before sending it on to the judge. It is like a last ditch effort to be sure the case actually needs to go before a judge. In some cases, like mine, it does not and is decided in review. I was scheduled for an SSA hearing on appeal. My claim was decided without the hearing and I was awarded SSD. I'm just wondering if the VA has anything like that in effort to shorten their case loads pending a hearing?

So, x-rays done by the Orthopedic doctor at Keesler in 1978/79 apparently revealed enough for him to dx lumbosacral facet syndrome. However, I believe the fusing had to have begun many years before the x-rays performed in 2003. It is the only explanation for them being completely fused bilaterally.

I know this is long. But, hopefully I answered your questions. If there is any further insight you can offer, I am open to it.

Cynthia

Re: Well, we got denied
#102012 08/25/06 07:16 PM
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Cynthia,


If all the doctors agree that your AS started while you were on active duty, it is service connected regardless if the back injury triggered it or not.

Given that, what is the current rating and rationale from the VA? How can they not rate the AS as service connected given two VA officials have stated it is? What codes are they using? If you email their rationale I will take a look. They are seriously off course if they state you have severe AS and it started when you were in the service. A diagnosis and an exacerbation is 20% under DC5002. You are certainly at 40% and most likely 60% from the information in your post.

Two months ago I sent the letter below to the VA. They were suppose to answer it by 9 August but have delayed the response due to confusion as to who in the VA is responsible for providing the answer/policy. I expect an answer by Mid September and will post it as soon as I get it. It should help in the resolution of your case perhaps without a BVA hearing.

Mike

LTC Michael A. Parker
4102 Bedrock Court
Alexandria, VA 22306
703-765-2549
ma.parker@yahoo.mail
June 18th, 2006

The Honorable R. James Nicholson
Secretary of the Department of Veterans Affairs
810 Vermont Street, NW
Washington, DC 20420


Dear Secretary Nicholson,


Enclosed is a series of recent correspondences I had with your department to determine VASRD provisions for rating the disease, Ankylosing Spondylitis. I
appreciate the timely responses from your department that demonstrated the numerous considerations that must be vetted to properly determine the disability rating for this disease. Unfortunately, there are continuing problems with how your department is rating this disease. Appeals of improper ratings are causing unnecessary delays and burdens to the disabled veteran as well as increasing the workload of your already over burdened staff.

Therefore, I request that your department send specific instruction to your field and appellant rating officials IAW the provisions addressed in my correspondence with your department. I also request that you send a copy of these instructions to me so that I can circulate them among veterans who have service-connected Ankylosing Spondylitis. This will help ensure all further ratings for this disease are performed correctly. We will all come out ahead if the rating is done right the first time.



Sincerely,



Michael A. Parker
Lieutenant Colonel
United States Army

Enclosure as stated


cc: Senator Larry E. Craig, Chairman, United States Senate Committee on Veterans
Affairs


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