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Need Critique On Statement In Support Of Claim


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#1 Electronic Tech

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Posted 21 April 2011 - 09:16 PM

Hi All,
I filed a claim of an injury to my right and I'm ready to file the Statement In Support Of Claim.
I would like feed back from the more experienced vets here. I need to mail this in a couple of days.
Thanks for any help.

The injury to my right knee occurred in February 1964, I have (attached) a copy of the medical record from when I went to sick call for that injury. I have always had a slight limp and mild pain since then. The pain has grown progressively worse since the injury. I have had no other injuries to this knee. A few months ago the pain would go very sharp waking me up three or more times every night.
On May 27, 2009 I complained about the knee at the V.A. Clinic at McClellan where Dr. Ashcraft, M.D. had x-rays taken and sent me to the Orthopedic Doctor at Mather. On June 22, 2010, the Orthopedic Dr. Locum Tenens gave me a very brief examination, he stated that I have a little arthritis in the knee and I shouldn't walk on it much. No further treatment offered.
Dr. Locum Tenens' (attached) report clearly states; "Diagnostic Tests: X-ray of the right knee showed early degenerative arthritis of the Patellofemoral joint, with Patellofemoral spurs.
DIAGNOSIS: Early Patellofemoral arthritis and chondromalacia of the patella.
Dr. Locum Tenens also advised me to avoid walking and riding bicycles. I do have a slight limp nevertheless, Dr. Locum Tenens was unable to detect it during the two short steps that he had me take within the very small examination room.
My work requires me to be on my feet most of the time. My work place is 950,000 sq feet in size. I'm unable to do most of the things that I need to do and I found myself getting depressed and feeling inadequate because of this constant pain and inability to perform my required work.
I took the issue to my private medical doctor. Dr. Daniel Sewell, M.D. did a through examination, took x-rays, then sent me for an MRI. The (attached) MRI found: "tear of the medial meniscus, tear of the lateral meniscus and osteoarthritis." My doctor said that I needed surgery and that he will write a report that this is more than 50% likely service connected. (attached)
On July 14, 2010 I underwent arthroscopic surgery to my right knee, which was followed by several weeks of Physical Therapy. Of course I had to be off of work for six weeks.

The knee is improved, however, I continue to suffer pain in the right knee and a slight limp. I think that this is due to the degenerative arthritis that resulted from the initial injury of 1964. Also, I have taken early retirement as I was unable to perform all of the required duties.


Electronic Tech :smile:



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#2 boomer2

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Posted 22 April 2011 - 04:17 AM


Electronic Tech

My doctor said that I needed surgery and that he will write a report that this is more than 50% likely service connected. (attached)

I would change this to say "it is more than likely that the current condition was caused by the injury on active duty"

I don't if that would suffice, anyway I'm sure some of the more experienced vets here can give you better advice than me.
Hope this helps.


#3 Pete53

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Posted 22 April 2011 - 06:20 AM

Good luck but even if the Doc won't change it still should be enough more than 50% is not VA language is the problem.

I agree with Boomer.

#4 carlie

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Posted 22 April 2011 - 07:07 AM

ET,
I would not send that yet until you get more responses.
Most of it shouldn't even be in there and will just muddy up the waters.
I will try to post more after awhile.
JMHO

#5 Berta

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Posted 22 April 2011 - 07:34 AM

"My doctor said that I needed surgery and that he will write a report that this is more than 50% likely service connected." (attached)
Boomer said:
"I would change this to say "it is more than likely that the current condition was caused by the injury on active duty"

I would suggest "more likely than not"

But before the doc does the IMO please read the IMO criteria in our IMO forum here.

I see you are 0 % now-

Do you mean they gave you a rating as SC Zero in the past?

Is this your first claim on the 1964 injury?

"The pain has grown progressively worse since the injury"

Do you have medical evidence of continuous treatment for this injury and/or the pain from it since 1964?

"I think that this is due to the degenerative arthritis that resulted from the initial injury of 1964. Also, I have taken early retirement as I was unable to" etc

The IMO doctor must state to VA with medical evidence-that the arthritis is as likely as not due to the progressive problems of the knee injury.
He or she would probably have a good treatise to use to support how this can happen as well as how "tear of the medial meniscus, tear of the lateral meniscus and osteoarthritis"is 'as likely as not' medically due to the inservice injury.

Do you have any medical records and/or buddy statements that show this problem as been consistent throughout the last 45 years?

I am not in any way doubting the basis of your claim.

I just see some landmines in it-meaning ways the VA could deny it.

#6 Berta

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Posted 22 April 2011 - 07:46 AM

To add:

http://www.va.gov/ve...es4/1037520.txt

http://www.va.gov/ve...es4/1030277.txt

This are two 2010 BVA decisions that show what I mean regarding continuity of symptomatology.

You might well have significant records to show that.I couldn't tell from your post.

#7 vmo

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Posted 22 April 2011 - 08:31 AM

"If" you are already 0% service connected for the knee, you have won the first battle with the VA (war). You need to establish as much as possible a continuity of treatment of the knee disability (especially if not already service connected). You referred to a "limp" which is an "altered gate" (the way you walk). The limp can cause you a host of other problems---such as problems with the other knee and/or back pain. Xrays, MRI, surgery records, and orthopedic opinions are crucial to your claim. Do not accept "no" from the VA, pursue your claim (aggressively). *Example: I started out in 1971 at 0% rating for a knee injury---now 70%, pending 100 (after two knee and one spine surgery). However, it has taken a lot of MRI's, Xrays, orthopedic, neurological, opinions/surgery records (plus multiple VA exams) to get there. Prior posts from others here at Hadit have given you some great information/direction. Read, read, and read.

#8 Electronic Tech

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Posted 22 April 2011 - 04:39 PM

Thanks for all the great replies.

I have a 10% rating for Tinnitus since 2007 after fighting the VA since 1968.

Then I fought them for retro pay and after a long battle won that with some great help from the DVA.

The first time that I have claimed this knee was last year. I just got their first response and form about four weeks ago. Then I sent for medical records.

I don't know why it should be a problem to get SC as I have the sick call record on it.

As stated, there has always been pain and the limp. But one get accustom to a certain amount of pain and I didn't notice the limp.

People would ask me; Why are you limping?" and I would just say "it was from an old army injury." So, I was busy with life and never had any specific medical care for the knee. If needed I can get buddy statements from family and former co-workers later. I'm waiting now to hear more from carlie. My research has found this:

Here is an exert of the 38 CFR telling about the x-ray evidence for Arthritis.
It is in 4.71a the Musculoskeletal System.

5003 Arthritis, degenerative (hypertrophic or osteoarthritis):
Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below:
With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion.
Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive.
Here is the what is considered major and minor joint groups:


4.45 The joints.
As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations:

(a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.).

(b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.).

Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.).

(d) Excess fatigability.

(e) Incoordination, impaired ability to execute skilled movements smoothly.

(f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions.

Hope this helps. Here is a link to the 38CFR if you need it.


http://ecfr.gpoacces...2.97.26&idno=38

Thanks Everyone,
Electronic Tech :smile:



#9 carlie

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Posted 22 April 2011 - 08:14 PM

[quote name='Electronic Tech' timestamp='1303442167' post='242732']
Hi All,
I filed a claim of an injury to my right and I'm ready to file the Statement In Support Of Claim.
I would like feed back from the more experienced vets here. I need to mail this in a couple of days.
Thanks for any help.

ET - I'm just going to throw my dimes worth in here, short and simple as I see it.
Please don't shoot the messenger.

The injury to my right knee occurred in February 1964, I have (attached) a copy of the medical record from when I went to sick call for that injury.

I have always had a slight limp and mild pain since then.
The pain has grown progressively worse since the injury.
A few months ago the pain would go very sharp waking me up three or more times every night.


Statement In Support Of Claim - Additional information relevant to claim filed on XX/XX/XXXX.
I filed a claim for an injury to my right knee that I contend was incurred during active duty.
Please refer to attached medical record dated XX/XX/XXXX, verifying incurrence of injury to right knee, while stationed at XXXXX.
I feel that this injury has led to an abnormal gait and at times the pain from it wakes me up several times at night thus affecting my sleep. I have a diagnosis of DDD and have had
to have surgery on this knee.
I have had no other injuries to this knee, since active duty.
I request a C&P examination be scheduled for the adjudication of these issues, at the earliest date available.

{{{***** On May 27, 2009 I complained about the knee at the V.A. Clinic at McClellan where Dr. Ashcraft, M.D. had x-rays taken and sent me to the Orthopedic Doctor at Mather.
On June 22, 2010, the Orthopedic Dr. Locum Tenens gave me a very brief examination,
he stated that I have a little arthritis in the knee and I shouldn't walk on it much.
No further treatment offered.****}}}} -
This just muddies stuff up and doesn't add anything of probative value for SC or a grant.

{{{{****Dr. Locum Tenens' (attached) report clearly states; "Diagnostic Tests: X-ray of the right knee showed early degenerative arthritis
of the Patellofemoral joint, with Patellofemoral spurs.
DIAGNOSIS: Early Patellofemoral arthritis and chondromalacia of the patella.***}}}} -
I would hang onto this to take a copy to to C&P with me and/or use further down the road.

Dr. Locum Tenens also advised me to avoid walking and riding bicycles.
Is the above in writing ? For how long were you advised to avoid walking?
Did this doc RX anything to help you ambulate, if so what?
Did he put you on bed rest?

I do have a slight limp nevertheless, Dr. Locum Tenens was unable to detect it during the two short steps that he had me take within the very small examination room.
Never put something like the above in a claim ! This only shows support to negate a disability exists.
Only use something like this if you are rebutting an exam for being inadequate.

My work requires me to be on my feet most of the time.
My work place is 950,000 sq feet in size.
I'm unable to do most of the things that I need to do and I found myself getting depressed and feeling inadequate
because of this constant pain and inability to perform my required work.
I took the issue to my private medical doctor.

You need evidence regarding the above like performance reports, sick time records, a statement from a supervisor,things of this nature to substantiate the above.

Dr. Daniel Sewell, M.D. did a through examination, took x-rays, then sent me for an MRI.
The (attached) MRI found: "tear of the medial meniscus, tear of the lateral meniscus and osteoarthritis."
My doctor said that I needed surgery and that he will write a report that this is more than 50% likely service connected. (attached)

This doctor will need to state in writing, (something very similar to) that they have personally reviewed your
SMR's/STR's and that it is their medical opinion that your current diagnosed disability's of XXX,XXX,XXXX are more/as likely as not, the progressive result of the active duty injury.
They will need to support their opinion with full medical rationale.

{{{*** On July 14, 2010 I underwent arthroscopic surgery to my right knee, which was followed by several weeks of Physical Therapy.
Of course I had to be off of work for six weeks.***}}}
I would provide a copy to the C&P examiner and/or save for use later down the road.

{{{*** The knee is improved, however, I continue to suffer pain in the right knee and a slight limp.
I think that this is due to the degenerative arthritis that resulted from the initial injury of 1964.***}}}
Your opinion is irrelevant to VBA claims adjudication. Now they are supposed to give some consideration to your statements on your symptomology -
but only to your symptomology and not what is related to what.
Only a doctor's written opinion is relevant on this.

Also, I have taken early retirement as I was unable to perform all of the required duties.

I addressed the employment issue above.
If you are shooting for IU you would need hard evidence that your employment
was terminated by either medical advice or the employer due solely to your knee condition.
If it comes from your doctor and you are shooting for IU the doctor needs to opine that you are unable to hold any substantial gainful employment due solely to SC'd disability's.
Before IU would even be considered you have to have SC'd disability first, so I would not even consider it at this point with what you have posted.
Again, this is all only my opinion and pretty much the way I would handle it.


Hopefully other's chime in - but ultimately it's your claim and your responsibility.
The burden of proof lays on the claimant.



#10 Electronic Tech

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Posted 23 April 2011 - 06:54 PM

Hi Carlie,
Thanks for your great and lengthy response.

In the cover letter that the VA sent me last month they are asking for; evidence that the condition existed from military service to present time. Any treatment records related including reports or statement from doctors, etc, etc. Dates and places treated at VA. My statement or statements from others, etc.

Because I have been seen be their Orthopedic Doctor (who did a very poor job) (and why didn't he send me to an MRI?) (Yes, I know not to say that.) and I have the sick call record. I wouldn't think that getting this SC'ed would be a problem.

In their Orthopedic Doctor's report, he stated; "I gave the patient advice how to do quadriceps exercise with ankle weightlifting with full extension at the knee, to avoid certain activities, and to return to the clinic p.r.n."
There was no other treatment provided! No bed rest.
Is a C & P exam different than seeing their Orthopedic Doctor as I have already done? And do I need to request it?

No, I'm not looking for IU as I'm getting Social Security.

Thanks,
Electronic Tech




#11 carlie

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Posted 23 April 2011 - 07:14 PM


In their Orthopedic Doctor's report, he stated; "I gave the patient advice how to do quadriceps exercise with ankle weightlifting with full extension at the knee, to avoid certain activities, and to return to the clinic p.r.n."
There was no other treatment provided! No bed rest.
Is a C & P exam different than seeing their Orthopedic Doctor as I have already done? And do I need to request it?

No, I'm not looking for IU as I'm getting Social Security.

Thanks,
Electronic Tech


ET,
Full extension - geez I don't know if that would provide any compensation but might get SC'd at zero.
A C&P exam is a COMPENSATION & Pension examination that a decision maker has to request.
If the claimant has probative evidence of something from AD and points out I would like a C&P examination,
chances are they will get a C&P exam.
SSDI is not effected by VA comp - SSI is income limited.

#12 john999

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Posted 23 April 2011 - 07:18 PM

You should file for TDIU if your SC conditions forced you to retire early. A C&P exam is very different from an exam by a regular orthopod at the VA. After you get your condition SC'ed then file for IU. How do you live on just SSD? You are a vet. If you can't work due to injuries suffered in service the VA is supposed to take care of you. You have to prove it, but there it is.

#13 Electronic Tech

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Posted 25 April 2011 - 03:33 PM

Thanks everybody for great responses.

I will file my papers in a few days and report any progress.
BTW, I thought that Arthritis is compatible with x-ray evidence.
We'll see.
Electronic Tech
:rolleyes:




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