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going before the V.A. judge in June...
callktulu
Member Posts: 3,451 ✭✭✭
This is in reference to my earlier post in this thread:
http://forums.GunBroker.com/topic.asp?TOPIC_ID=656832
So, I?m not feeling very confident in case. I have some things in my favor, but it may just come down to the judge, and whether he feels my word (in person, or at least live via video) is more valid that the comments written by a doctor in 2009. This is the sitch?
And we?re just talking about my neck here, not my other ailments, so everything is about cervical range of motion (ROM).
I separated in Sept 2002 and was schedule for my C&P exam in April ?03. During that exam of my cervical bones, the I remember doctor used a device to measure my ROM. I found out yesterday that device is called a goniometer (gone-ee-oh-meter). Based on that doctor?s measurements and exam, I was awarded 10% for my neck.
Fast forward a little to 2009, where I felt my condition worsened. I went to my personal doctors and got documentation and stuff, then applied to the VA for an increase to 20% for the pain in my neck. I distinctly remember this C&P exam in 2009? the doctor did NOT use any device (like a goniometer) to measure my ROM. All he did was visually watch my head movements. But, I didn?t say anything because I didn?t know better. And when the VA?s determination came back negative, I knew it was because that joker didn?t use a specific device. In fact, as I learned yesterday, every single ?measurement? he recorded showed I had 100% full ROM (45 degrees out of 45, 80 degrees out of 80, etc.), which is MORE than my initial exam in 2003 showed!
Fast-forward again to my 2012 appeal C&P exam of the 2009 doctor?s exam. This time, the doctor did use a goniometer, and his measurements were not only accurate (in my opinion), but also more precise (like 35 degrees out of 45, and 60 degrees out of 80). Thus, at that point the VA agreed and increased me to 20% for my neck.
Now, here?s where it gets interesting? the VA?s ?bible? for determining compensation ? 38 CFR (Code of Federal Regulations) Book C, Schedule for Rating Disabilities, Section 4.46: Accurate Measurements ? states, ?The use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within the Department of Veterans Affairs.? So, that doesn?t say it?s mandatory, but sure seems to be the strongest way of encouraging its use. And here?s where is gets more interesting? VA Form 21-0960M-13, May 2013 - NECK (CERVICAL SPINE) CONDITIONS DISABILITY BENEFITS QUESTIONNAIRE (which is what?s filled out by the examining physician) states in Section III ? Initial Range of Motion Measurements: ?Measure ROM with a goniometer?. Following the initial assessment of ROM, perform repetitive use testing. For VA purposes, repetitive use testing must (my emphasis) be included in all joint exams. The VA has determined that 3 repetitions of ROM (at a minimum) can serve as a representative test of the effect of repetitive use. After the initial measurement, reassess ROM after 3 repetitions.? That seems pretty specific, that the doctor MUST use goniometer for measurements.
So that?s going to be my main contention, that the 2009 doctor didn?t use a goniometer, he just used his uncalibrated eyeballs. On top of that, he certainly didn?t measure at least 3 times. In fact, his comments in my record just say ?measured range of motion? without mentioning a measuring device. However, in my 2003 & 2012 records, the doctors? comments both say they performed the measurements using a goniometer. I?m going to argue that the 2009 doctor?s lack of using the word ?goniometer? (compared to the other doctors) is proof it wasn?t used, and therefore was an inadequate exam, and therefore they should back-pay me from 2009, not just 2012.
Anyone wanna give odds? You'll have to wait a long time to find out if you're right... the VA is currently "caught up" to adjudicating cases from 2013.[:(][xx(][:0]
http://forums.GunBroker.com/topic.asp?TOPIC_ID=656832
So, I?m not feeling very confident in case. I have some things in my favor, but it may just come down to the judge, and whether he feels my word (in person, or at least live via video) is more valid that the comments written by a doctor in 2009. This is the sitch?
And we?re just talking about my neck here, not my other ailments, so everything is about cervical range of motion (ROM).
I separated in Sept 2002 and was schedule for my C&P exam in April ?03. During that exam of my cervical bones, the I remember doctor used a device to measure my ROM. I found out yesterday that device is called a goniometer (gone-ee-oh-meter). Based on that doctor?s measurements and exam, I was awarded 10% for my neck.
Fast forward a little to 2009, where I felt my condition worsened. I went to my personal doctors and got documentation and stuff, then applied to the VA for an increase to 20% for the pain in my neck. I distinctly remember this C&P exam in 2009? the doctor did NOT use any device (like a goniometer) to measure my ROM. All he did was visually watch my head movements. But, I didn?t say anything because I didn?t know better. And when the VA?s determination came back negative, I knew it was because that joker didn?t use a specific device. In fact, as I learned yesterday, every single ?measurement? he recorded showed I had 100% full ROM (45 degrees out of 45, 80 degrees out of 80, etc.), which is MORE than my initial exam in 2003 showed!
Fast-forward again to my 2012 appeal C&P exam of the 2009 doctor?s exam. This time, the doctor did use a goniometer, and his measurements were not only accurate (in my opinion), but also more precise (like 35 degrees out of 45, and 60 degrees out of 80). Thus, at that point the VA agreed and increased me to 20% for my neck.
Now, here?s where it gets interesting? the VA?s ?bible? for determining compensation ? 38 CFR (Code of Federal Regulations) Book C, Schedule for Rating Disabilities, Section 4.46: Accurate Measurements ? states, ?The use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within the Department of Veterans Affairs.? So, that doesn?t say it?s mandatory, but sure seems to be the strongest way of encouraging its use. And here?s where is gets more interesting? VA Form 21-0960M-13, May 2013 - NECK (CERVICAL SPINE) CONDITIONS DISABILITY BENEFITS QUESTIONNAIRE (which is what?s filled out by the examining physician) states in Section III ? Initial Range of Motion Measurements: ?Measure ROM with a goniometer?. Following the initial assessment of ROM, perform repetitive use testing. For VA purposes, repetitive use testing must (my emphasis) be included in all joint exams. The VA has determined that 3 repetitions of ROM (at a minimum) can serve as a representative test of the effect of repetitive use. After the initial measurement, reassess ROM after 3 repetitions.? That seems pretty specific, that the doctor MUST use goniometer for measurements.
So that?s going to be my main contention, that the 2009 doctor didn?t use a goniometer, he just used his uncalibrated eyeballs. On top of that, he certainly didn?t measure at least 3 times. In fact, his comments in my record just say ?measured range of motion? without mentioning a measuring device. However, in my 2003 & 2012 records, the doctors? comments both say they performed the measurements using a goniometer. I?m going to argue that the 2009 doctor?s lack of using the word ?goniometer? (compared to the other doctors) is proof it wasn?t used, and therefore was an inadequate exam, and therefore they should back-pay me from 2009, not just 2012.
Anyone wanna give odds? You'll have to wait a long time to find out if you're right... the VA is currently "caught up" to adjudicating cases from 2013.[:(][xx(][:0]
Comments
Any advice on how to phrase my email? TIA
One additional thought... I don't want to disrespect the gentleman handling my case. He obviously is experienced and (hopefully) qualified, but I want to make sure he hits the points and details I feel are important for the judge to hear. I want to email him some facts & details for his focus, but without insulting him or coming across like I'm telling him how to do his job.
Any advice on how to phrase my email? TIA
Just tell them in your own words what you want to tell him, don't insult him by saying "make sure you do this," Instead say, "it might be helpful if you did this but that I'm not a lawyer so I don't know, I I am confident in your abilities and know that you will do what is best for me"
Just tell them in your own words what you want to tell him, don't insult him by saying "make sure you do this," Instead say, "it might be helpful if you did this but that I'm not a lawyer so I don't know, I I am confident in your abilities and know that you will do what is best for me"
Excellent, I like the way you worded that. Thanks for the advice!
Say can you get back payments?
Say can you get back payments?
That's what I'm appealing/seeking, approximately 3 years' worth.
The Judge will try to separate the fakers from the legit disabled. There are tough decisions.
The Judge will try to separate the fakers from the legit disabled. There are tough decisions.
Indeed, and I respect that. I understand why they're essentially 4 years behind in adjudicating cases. In the big scheme of things, I got what I initially wanted, which was an increase to 20% for this particular ailment. It's just that IMO it came 3 years too late.
Here is how the VA treats vets.
http://www.washingtonexaminer.com/veterans-affairs-hospital-staff-knew-of-roaches-on-food-trays-but-didnt-get-rid-of-them-report-finds/article/2624010
...a lot of good advice and well laid-out arguments...
Good Luck !
Holy poopbricks, Barzilla! That was AWESOME! Thank you!! I won't claim to comprehend & understand all of your big words and fancy logic, but I think you pretty well nailed it.
Do you mind if I please paraphrase and/or plagiarize what you've provided?
Again, many thanks, you really presented the situation accurately and with more betterly wordying than I ever could! [:p]
Badgering, jumping in while he informs the judge, and thinking you know what's best in this situation will end with you not getting what you seek.
VA "laws" are different than regular courthouse stuff; unless your representative is an idiot, you will get relief.
Clarence Darrow would have lost every VA case he tried.
Badgering, jumping in while he informs the judge, and thinking you know what's best in this situation will end with you not getting what you seek.
I have no intention of doing this:
quote:Dear Mr. XXXXX,
Thank you for taking the time to meet with me last week to discuss my upcoming video hearing on June 7th. I?m looking forward to presenting myself before the judge, as I feel we have some solid evidence and arguments to support my case. I am confident in your abilities, and I trust that you will do what?s best for me. It is not my intent to presume to tell you how to do your job; as such, I am simply seeking to summarize the main points to present to the judge. If you are in disagreement with these arguments, I will respectfully defer to your expertise.
? In 2002, I was evaluated by a VA facility with a degenerative neck condition, which is progressive in nature, well documented in medical literature (as well as my medical records), and not subject to spontaneous remission or mysterious re-appearance.
o This doctor stated in his notes that a goniometer was used to measure my cervical range of motion (ROM).
o As stated in 38 CFR (Code of Federal Regulations) Book C, Schedule for Rating Disabilities, Section 4.46: Accurate Measurements: ?The use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within the Department of Veterans Affairs.?
o This doctor?s proper evaluation via the use of a goniometer earned me a 10% disability rating.
? Between 2002 and 2009, I feel my condition overall worsened, and sought an increase to a 20% rating. I was evaluated once again by a VA facility, and the physician found no physical limitations existed whatsoever, not to mention an increase in function from my 2002 evaluation.
o This doctor did not use a goniometer to measure my ROM, nor do his notes claim that he did.
o The doctor performed each directional ROM test only once.
o VA Form 21-0960M-13, May 2013 - NECK (CERVICAL SPINE) CONDITIONS DISABILITY BENEFITS QUESTIONNAIRE states in Section III ? Initial Range of Motion Measurements: ?Measure ROM with a goniometer?. Following the initial assessment of ROM, perform repetitive use testing. For VA purposes, repetitive use testing must be included in all joint exams. The VA has determined that 3 repetitions of ROM (at a minimum) can serve as a representative test of the effect of repetitive use. After the initial measurement, reassess ROM after 3 repetitions.?
o The VA denied my claim increase.
? I contested these findings for the following reasons:
o The appropriate diagnostic device was not utilized to accurately make the assessment
o The method the physician actually did use (just his uncalibrated eyeballs) was not repeated three times in order to properly establish the obtained results.
? In 2012, I was re-evaluated by the VA as part of my appeal of the 2009 decision.
o This physician did subsequently find that my disability had risen to a rating of 20%, as I have consistently maintained, and also persists to this day.
o This physician also stated in his notes that a goniometer was used to measure my ROM.
? My condition existed at 10% in 2002, and was found to exist at 20% in 2012. When I experienced it to be progressively worsening and sought evaluation, the 2009 conclusion of 0% limitations was not consistent with the nature of the disability, the findings of other physicians, or my actual experiences in decreasing function. Other points & summaries worthy of mention:
o I was diagnoses in 2002 with a condition that is progressive in nature, well-documented in literature, and not subject to spontaneous remission or mysterious re-appearance.
o Other physicians evaluated me during this period of time (as documented in my submitted records), and they found significant limitations supporting my claim. Such limitations & disabilities are unlikely to disappear (as the 2009 VA physician claimed), only to re-appear at an increased level a few years later.
o If the 2009?s physician?s claims were accurate (without the use of a goniometer), how can they be accounted for and still be consistent with the previous (2002) and final (2012) disability levels, as well as the level I?m currently experiencing?
o The means used to estimate my ROM in 2009 met no specified or recognized diagnostic standards for evaluation.
o The conclusions reached by the 2009 physician were both inconsistent with the known pathology and prognosis, as well as the natural course of the disability.
? The 2012 VA evaluation proved I was accurate in my 2009 claim of increased disability and limitations. In essence, there is no way to justify the 2009 physician?s aberrant findings, and therefore the preponderance of evidence tends to indicate that the disability was indeed increasing in severity over time.
Once again, XXXXX, I am not trying to tell you how to do your job. As much for my own sake, I?m just attempting to organize and categorize all my points and arguments. Please use and consider as much or as little of this as you feel necessary for our hearing next Wednesday. Thank you for your time & consideration.
Best,
Jon
Looks good !
The idea is that the 2009 evaluation represents an anomaly amidst the rest of the available data, an outlier if you will, and as such is not a valid basis for a disability determination.
The reasonable thing to do when faced with unexpected results is to repeat the test, or otherwise look further for an explanation.
They used to say, "Treat the patient, not the lab."
best of luck !
Again and again, thank you. I appreciate all your input, and I'll let you know how it turns out!
Regardless of how it turns out, the one piece of for-sure good news is that my docket number is actually from 2015 (not from the date of yesterday's hearing, like I thought). That means I won't have to wait as long as I thought for a for the decision... they're currently adjudicating mid- to late-2013 docket numbers, so I probably have 2 years to wait, not four.[:D]
Go paper a SBR and a suppressor to see if you get the Canned SBR or the back payments from the VA.
I guess they're dragging to see if you kick before then, eh?
Go paper a SBR and a suppressor to see if you get the Canned SBR or the back payments from the VA.
Yeah right! [:p]
And I'm only 44, probably one of the younger folks on this board... I *shouldn't* kick the bucket any time soon![:0][:0]
The DAV did a great job representing me, and my case actually got turned over to a civilian attorney group, which also represented me well. They successfully proved the VA did NOT perform a proper exam in 2009.
However, this doesn't mean the VA will pay me for the 3 years of back-pay during the appeal process (where I was eventually proven RIGHT). No, now it just means the VA is forced to go back to the original examiner (from 2009!!!) and search for evidence in my records that my condition warranted the increase.
BUT...
They're not going to find it because the 2009 examiner didn't do his exam properly like he was supposed to, which my appeals and lawyers PROVED!
So it's a catch-22 of * and totally reminds me of this fantastic and incredibly apt Sponge Bob meme:
And around and around we go.........
Sorry for whining and complaining, I just needed to vent.