Advice for an Old Claim

[burgettg]

In 1984 I applied for and was denied admission to the ROTC program at Penn State because of some back problems I had. Previously I had served for 7 years on active duty, enlisted, in the Air Force. I applied for and received a 20% rating for my back. The DAV rep I was working with said I should have more so I appealed and was reduced to 0% in 1986. I had moved in the interim and no longer had contact with the DAV rep so I thought that was the end of things. In August of 2007, while speaking to the VA I was informed that I could still appeal and am in the process of having C&P exams for my back, extremity pain caused by my back and my neck which is very arthritic due to a traffic accident I had years ago while on active duty. My questions are this: 1. Is there a good organization to represent Vets? My past experience with the DAV caused my rating to be reduced and last week I met with the local American Legion rep. and was not too impressed. 2. Does the VA give back pay? I believe that I should receive pay back to 1896 because my condition never stopped being an issue.

Thanks for any help you can provide.

[TinCanMan]

Your old claim was closed back in 1986, assuming that's what you meant because for 1896 it would have been a horse and buggy accident:-) The only way to reopen a closed claim and set the Effective Date at 1986 is to declare it to be a Clear & Unmistakable Error (C&UE) on the part of the VA in applying the laws and regulations of the time. Judgment calls such as those made by a doctor or a decision maker in evaluating a claim are not C&UE. You would also have to show the decision would would have been different based on the evidence available at that time but for the C&UE. That's a very tall order. Few things are C&UE.

OK, so what do you do? You file a reopened claim based on new and material evidence that your back has worsened and meets the criteria for a higher evaluation. Fortunately your 0% award makes you Service Connected (SC) for the condition and you don't have to prove that again. All you need to do is show it has worsened. Under VCAA (Veterans Claims Assistance Act of 2000) the VA has a duty to assist and in most cases will provide you with a C&P to determine severity. You already know what can happen at a C&P so the smart money would be to have a private physician examine you and determine the condition.

Now, in order to preserve the Earliest Effective Date of this new claim, call (1800-827-1000) the nearest VA Regional Office and tell them you want to make a claim. You'll then have a year to flesh it out but the back pay will go to 9/07 provided you do this by Sunday.

A good Service Officer (SO) can be a god send, On the other hand, a bad one can be a night mare. Typically, the DAV reps are better than most because of their opportunity for training but that doesn't mean they are infallible. All SO's are not cut from the same cloth. When choosing a SO, get references from other vets. interview several, see who returns your calls but understand, they are not going to hold your hand. Some SO's are simply overwhelmed with the amount of claims they have to process.

Even if you have a good rep, you need to stay in control of your claim. Maintain a file at home with all the originals. Send the SO only copies. I know of some area's their performance is absolutely abysmal and the vet simply needs to get smart about the process. Finding a good SO can be a crap shoot. You just have to look around and find someone you can work with. Your State and/or County may also have paid SO's. Look around in your area.

[Vike17]

burgettg,

As TinCanMan said the only way you can appeal that decision from 1986 is if there was a Clear and Unmistakable Error (CUE) made in that previous decision. Without going into the details of what an actual CUE is, it is a pretty difficult thing to prove. Actually, CUE's are pretty rare in the whole realm of VA decisions.

Since you're already service-connected for your back (I assume you're talking about your lumbar spine) it looks like you have applied for an increase if you're "in the process of having C&P exams." Furthermore, if you have neuropathy in your extremities due to your back, you should also file a claim for that as secondary to your service-connected back.

If you were involved in a traffic accident while on active duty and you injured your neck (cervical spine) and you are having problems with it now, you may have a claim for this too. The lumbar and cervical spine are evaluated and rated seperately. If you file a claim for your neck, you'll need to show a current clinical diagnosed condition and either continuity of treatment for the neck since your discharge to the present, or you'll need an IMO or a statement from a doctor saying that your current (insert diagnosis) "is at least as likely as not" the result of the car accident while in the service. Assuming that the neck injury is documented in your SMR"s, you'll then have the elements of a solid claim to present to the VA.

Both the lumbar and cervical spine are now rated according to range of motion (how far you can bend over called 'flexion') or incapacitating episodes (how many weeks over a 12 month period of bed rest and treatment were prescribed by a doctor), whichever results in the higher rating. Back in 1984-86 the back was rated, depending what Diagnostic Code (DC) was assigned, according to whether it was slight, moderate, severe, and in the case of Intervertebral Disc Syndrom, pronouced, which was very subjective in nature. The VA changed the rating criteria in Sept. 2002, and 2003, to reflect a more objective criteria. Since you are being considered for an increase, the VA will evaluate your back according to the post 2002-2003 criteria.

When you go for your C&P exams, make sure you tell the doctor exactly at what point when you're bending and twisting where it begins to hurt. This measurement will be recorded (or it should be anyways) using a goniometer. The rating is based off of the point of where pain set starts, not how you can move with pain! According to new VA exam criteria, the doctor must have you repeat the movement at least three times and measure the movements after each time. He must comment on whether weakness, fatigue, or pain affects the range of motion any and which has the major functional impact. This is what is know as the DeLuca criteria. Ratings are based off the DeLuca criteria, not the full movemet with pain.

I hope this helps!

Vike 17

[burgettg]

The difference in the exams now and in the past seems to be the "point of pain." In 1985 the doctor said it didn't matter how much pain I had. The evaluation I had two weeks ago the doctor said to stop when it hurt. I have another C&P tomorrow.

[Vike17]

burgettg,

The DeLuca Criteria did not come about until the early 1990's (I think 1991 to be exact). That's the reason for the difference in the two exams.

Vike 17

[Vike17]

I think I'm wrong with the year that the Deluca criteria was implemented. At any rate, just go to http://www.vetapp.uscourts.gov/ and type in Deluca v. Brown and it should come up. For some reason either 1991, 1993 or 1995 ring a bell?!?!?!

Vike 17