Favorable findings supports claim

dwbell99

PEB Forum Regular Member
Registered Member
In the situation below, does the Favorable findings below support what is claimed?

CLAIMED: chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely due to abnormal gait caused by service connected left ankle disability.

DECISION: Service connection for degenerative disc disease, lumbar spine (claimed as back) is denied.

REASONS FOR DECISION:
We have denied your claim for service connection for degenerative disc disease, lumbar spine (claimed as back) since this condition neither occurred in not was caused by service.

Favorable finding identified in this decision:
- Private examination for Dr. XXX opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability).
 

gsfowler

Super Moderator
Staff Member
PEB Forum Veteran
Favorable findings is new to the VA, as it is part of legislation that was approved in March 2019. Whenever the VA renders a denial, if there is an associated favorable finding, it must be listed.

If your private medical records contained language supporting a nexus between your chronic L5-S1 disc degeneration & bilateral lower extremity sciatica being secondary connected to a left ankle disability. (That is the favorable finding)

Service connection was most likely denied because during the claim development process, there was not any evidence provided to the RVSR to support the ankle condition (I am speculating because I cannot see the actual claim).

There is a discrepancy in the language in the favorable finding, did you copy/paste or type it?

More likely than not less secondary connected” is incorrect VA grammar.

It would read “more likely than not" (greater than 50%) "at least as likely as not" (equal to or greater than 50%) "not at least as likely as not" (less than 50%) "is not due to" (0%)

If you have a service connected ankle condition and now are claiming a back condition (chronic L5-S1 disc degeneration & bilateral lower extremity sciatica) and your nexus letter reads “more likely than not” or at least likely as not” then you should be granted service connection.

You may want to file a notice of disagreement if you believe the decision is incorrect.
 

dwbell99

PEB Forum Regular Member
Registered Member
Below is the 21. REMARKS, IF ANY: that was submitted with my claim:

21. REMARKS from Back (Thoracolumbar Spine) Conditions DBQ dated Oct 18,2017 by Dr X (my doctor).

ATTESTATION: I have reviewed Veteran's serivce treatment records, VA Medical Center records, and civilian medical records. In Addition, I have conducted a thourough interview with Veteran over many sessions.

It is this provider's medical opinion that veteran's chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are MORE LIKELY THAN NOT > 50% secondary servic3e connected (due to abnormal gait caused by service connected left ankle disability).

PEER REVIEW SUPPORTING THIS MEDICAL OPINION: Please see the attached peer reviewed articl4e which describes the relationship between abnormal gait and back/proximinal dysfuction by Dr. George C. Trachtenberg.
When Lower Extremity Dysfunction Contributes To Back Pain
 

gsfowler

Super Moderator
Staff Member
PEB Forum Veteran
If you are service connected for a lower extremity issue, you should have not been denied on the basis of medical evidence.

File a notice of disagreement
 

dwbell99

PEB Forum Regular Member
Registered Member
1. My case is unique in that I submitted a claim with DBQs 2016 for left ankle, bilateral knees and back as service connected,
2. Rating Decision in 2017 = the left ankle service connection was approved for 10% (osteoarthritis) but knees and back were denied.
3. Review of DBQ 2016 revealed that knees and back were submitted as direct SC but should have been submitted as 2nd SC to ankle
4. Submitted another claim in 2017 for secondary service connected knees, back, and sciatica are MORE LIKELY THAN NOT > 50% secondary service connected (due to abnormal gait caused by service connected left ankle disability).
5. VA received the 2017 Claim they saw the 2016 claim and reopened lumbar spine and made it an appeal. They did the same for the knees.
6. This thread is for the reopened/appeal for the back
 

dwbell99

PEB Forum Regular Member
Registered Member
NOD to Rating Decision: 11/21/2018

The DECISION in Rating Decision dated 11/21/2018 contains flaws:

1. The DECISION in the VA Rating Decision 11/21/2018 listed a rating that had already been listed Rating Decision dated 11/29/2016.
The DECISION in the VA Rating Decision 11/21/2018 of "Service connection for degenerative disc disease, lumbar spine (claimed as back) is denied" is identical to the DECISION in the VA Rating Decision dated 11/29/2016 of "Service connection for degenerative disc disease, lumbar spine (claimed as back).

2. The DECISION in the VA Rating Decision 11/21/2018 should have rated the secondary service connection presented in the Corrected Supplemental claim for Medical (Thoracolumbar Spine) Condition DBQ dated October 18, 2017.

3. The Laws and regulations applicable to this issue in the VA Rating Decision 11/21/2018 listed the wrong section.
It should have referenced 38 CFR § 3.310 - Disabilities that are proximately due to, or aggravated by, service-connected disease or injury which is applicable to the Corrected Supplemental claim not 38 CFR § 3.303 - Principles relating to service connection.

4. The EVIDENCE section of Rating Decision 11/21/2018 failed to list the Corrected Supplemental claim for Medical (Thoracolumbar Spine) Condition DBQ dated October 18, 2017.

5. The Rater changed the VA examiner's medical opinion from 'bilateral lower extremity sciatica" to "claimed condition" (implying it was for the "Service connection for degenerative disc disease, lumbar spine (claimed as back).

a. VA Examiner stated "any currently diagnosed condition(s) related to the veteran's claimed bilateral lower extremity sciatica, is less likely than not (less than 50 percent probablility) proximately due to the result of the veteran's left ankle osteoarthritis."

b. Rater stated "On VA examination dated January 29, 2018, the examiner opined that your claimed condition is less likely than not (less than 50 percent probability due to or the result of your service connected condition".

6. VA examiner's conclusion that "Veteran's gait not significantly antalgic on today's exam 1/29/2018" was flawed.
a. did not mention that the exam was conducted 10 days after a L5-S1 spinal fusion surgery.
b. second back surgery which fused the L5-S1 which resulted in a three disk fusion of L3-S1
c. Veteran was wearing a full back brace.
d. The L3-S1 fusion surgery could have corrected the atalgic gait that caused the back problems.
e. Even surgery corrected atalgic gait, the surgery did not undo the damage done by that atalgic gait.

7. VA examiner's conclusion that veteran's gait on 1/29/2018 was not significately antalgic and "even then it would be unlikely to cause the conditions above".
a. Is not supported by documentation.
b. Is discredited by the PEER REVIEW SUPPORTING THIS MEDICAL OPINION listed in the REMARKS of claim DBQ's 11/18/2017 listed below.
When Lower Extremity Dysfunction Contributes To Back Pain
When Lower Extremity Dysfunction Contributes To Back Pain
 

dwbell99

PEB Forum Regular Member
Registered Member
*********************
*** Claim History ***
*********************
1. Submitted claim DBQs 7/19/2016 for
a. chronic ankle are MORE LIKELY THAN NOT > 50% service connected.
b. chronic back pain are MORE LIKELY THAN NOT > 50% service connected.

2. Rating Decision 11/29/2016 decision(s):
a. Left ankle service connection was approved for 10% (osteoarthritis)
b. chronic back pain service connection was denied.

3. Submitted claim DBQ's 11/18/2017 for:
a. lower bilateral knee strain and painful rang of motion are MORE LIKELY THAN NOT > 50% secondary service connected (due to abnormal gait caused by service connected left ankle disability).

b. secondary service connected knees, back, and sciatica are MORE LIKELY THAN NOT > 50% secondary service connected (due to abnormal gait caused by service connected left ankle disability).

c. Cited PEER REVIEW SUPPORTING THIS MEDICAL OPINION:
When Lower Extremity Dysfunction Contributes To Back Pain
When Lower Extremity Dysfunction Contributes To Back Pain

4. Letter 12/14/2017 acknowledged reciept of my 10/30/2017 FDC.

5. VA received the 11/18/2017 claim:
a. claimed that there was an existing appeal for lumbar spine (reopened) appeal.
b. claimed that there was an existing appeal for Knees so (reopened) appeal.
c. claim for sciatica is denied.

6. Rating Decision: 11/21/2018 decision is " Service connection for degenerative disc disease, lumbar spine (claimed as back) is denied"
 

dwbell99

PEB Forum Regular Member
Registered Member
************************************
*** Rating Decision: 11/21/2018 ***
************************************

*** DECISION ***
Service connection for degenerative disc disease, lumbar spine (claimed as back) is denied.

*** Favorable finding identified in this decision ***
- Private examination for Dr. Sean Burgest (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability).
- On VA examination dated January 29, 2018, the examiner noted your history of Lumbar Degenerative Disc Disease, Degenerative Joint Disease, and stenosis, neuropathy/radiculopathy.

*** REASONS FOR DECISION ***

Private examination for Dr. XXX (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely due to abnormal gait caused by service connected left ankle disability.

On VA examination dated January 29, 2018, the examiner opined that your claimed condition is less likely than not (less than 50 percent probability due to or the result of your service connected condition. The examiner also indicated that your gait not significantly antalgic on exam. Additionally, order for the ankle pain to have contributed to the development of lumbar Degenerative Disc Disease, Degenerative Joint Disease, stenosis, neuropathy/radiculopathy your gait would have to be significantly antalgic and even then it would be unlikely to cause your conditions.

Given the nature of the two opposing decision opinion, in this case, reasonable doubt has not been ruled in your favor. The VA asses the opinion and supporting rationale of the VA examination to be more objectively based.
 

oddpedestrian

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First you need to be working with a free VSO ASAP there are no more "NODS" I recommend filing an HLR review in your case but supplemental might be necessary if you want to add more evidence but I would stick with HLR.

Given the complexity of this claim I would have made sure your doctor provided a better rational for the service connection you may also want to find more peer reviewed evidence, I typically state these claims are weak but given the amount of claims I have seen won SC just about anything to back it is not unwinnable.

First I do not like how the rater concluded that the more "objective" opinion was from the VA examiner nor was it completely "rationale" when an examiner wants to slam the door on your claim they will state something like this ...Not only is the condition not medially supported their are no peer reviewed opinions that support this claim to this examiners knowledge that these two issues are related... so in that hypothetical the examiner is saying not only are the conditions not backed up by evidence their are no other doctors that support the link either that's what I call a strong denial. This examiner not only opines that its not severe but even if it was its not related to the back but offers no opinion on what could be causing the back issues... that would be a rationale the rater would need since apparently there IS evidence that your claimed conditions are possibly linked.

Given the "nature" of the two opposing opinions.. whats that supposed to mean exactly? what are your doctors credentials and examiners? get this information and have it handy in case you need to appeal to the BVA or even at the informal conference.

I recommend a HLR appeal you cannot add any evidence but I would strongly recommend an informal conference and have a VSO rep you!!! This is very important if the senior adjudicator denies the claim appeal with a evidence only BVA appeal but lets see what happens with the HLR review first. Good luck
 

dwbell99

PEB Forum Regular Member
Registered Member
First you need to be working with a free VSO ASAP there are no more "NODS" I recommend filing an HLR review in your case but supplemental might be necessary if you want to add more evidence but I would stick with HLR.

Given the complexity of this claim I would have made sure your doctor provided a better rational for the service connection you may also want to find more peer reviewed evidence, I typically state these claims are weak but given the amount of claims I have seen won SC just about anything to back it is not unwinnable.

First I do not like how the rater concluded that the more "objective" opinion was from the VA examiner nor was it completely "rationale" when an examiner wants to slam the door on your claim they will state something like this ...Not only is the condition not medially supported their are no peer reviewed opinions that support this claim to this examiners knowledge that these two issues are related... so in that hypothetical the examiner is saying not only are the conditions not backed up by evidence their are no other doctors that support the link either that's what I call a strong denial. This examiner not only opines that its not severe but even if it was its not related to the back but offers no opinion on what could be causing the back issues... that would be a rationale the rater would need since apparently there IS evidence that your claimed conditions are possibly linked.

Given the "nature" of the two opposing opinions.. whats that supposed to mean exactly? what are your doctors credentials and examiners? get this information and have it handy in case you need to appeal to the BVA or even at the informal conference.

I recommend a HLR appeal you cannot add any evidence but I would strongly recommend an informal conference and have a VSO rep you!!! This is very important if the senior adjudicator denies the claim appeal with a evidence only BVA appeal but lets see what happens with the HLR review first. Good luck
Thanks for the good information.

I have a Texas Veterans Commission as my VS0.

Was not aware that NOD's (Notice of Disagreement) were gone.

Was planning on submitting a Notice of Disagreement so I can add additional medical opinions.

I have requested another medical opinion supporting that the current L3-S1 spinal fusion is more likely than not > 50% secondary connected due to the abnormal gait caused by service connected left ankle disability.
NOTE: The L3-S1 disk fusion is documented in the VA DBQ.

Also requested from two medical opinions (one from my pain doctor and one from my back surgeon), for the chronic L5-S1 disc degeneration resulted in a L5-S1 fusion, when added to the existing L3/L4/L5 fusion is manifested by surgical fusion from L3 to S1 with limitation of motion and pain, including on use, productive functional impairment comparable to complete bony fixation (ankylosis) of the lumbar spine. (which warrants a rating of 50%).

Also requested from two medical opinions (one from my pain doctor and one from my back surgeon), stating that my lumbar ankylosis prevents me from getting gainful employment. (which warrants a rating of 100%)

I am thinking that they inadvertently approved the secondary service connection because the Favorable Findings of the Rating Decision supports the veteran's secondary service connection claim. 38 CFR § 3.104 - Binding nature of decisions

Please let me know what are your thoughts on these items.
 

oddpedestrian

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The favorable finding is a silly thing they do now it means that the evidence you provided isn't "enough" to grant service connection. That is not an error it's a way to disregard evidence in your favor.

It is very important that any opinion or nexus you provide now addresses the VA examiner's negative opinion so make sure your docs read her assessment. If you do not do this they will disregard them. i.e. ...after reading doc X opinion on this condition not being related there is clear evidence to the contrary...then go on to how they are both are linked in detail.

Be careful going to any more VA C&P exams after submitting all your evidence for a supplemental claim it should be re-rated but they may schedule you for another exam. Often the new examiner will just copy and paste what the old examiner wrote or it gives them an opportunity to address why you have back pain claiming you are just fat or obese is one of their favorites.
 

dwbell99

PEB Forum Regular Member
Registered Member
My concern about a HLR is whether I can get a 50% rating for my back which will give me a total disability of 60% when added to my 10% for left ankle and 10% for tinnitus without submitting additional medical opinions.

I have asked two doctors to write medical opinions for fused Lumbar which is 50% and 100% disability for Total Disability Individual Unemployability (TDIU) for my back. One doctor is my back surgeon and the other is my pain Doctor. Also asked my pain doctor to write a medical opinion to support my existing medical opinion for back secondary to left ankle service connection.

Also this claim started in 2016 so could about 3 years of back pay so I would rather get back pay on 100% rather than 60%.
 

heathro1281

Well-Known Member
PEB Forum Veteran
Registered Member
1. I don't understand how you believe your ratings = 50% , what code do you believe you should be rated for?

2. IU wouldn't apply to you in any aspect because, per the VA website to be able to claim IU you need a inability to hold substantially gainful employment AND
a. You have at least 1 service-connected disability rated at 60% or more disabling, or
b. 2 or more service-connected disabilities—with at least 1 rated at 40% or more disabling and a combined rating of 70% or more

You just stated you expected 50% out of the back conditions which wouldn't qualify you for a. and your total would be 60% which doesn't qualify for b. ?
 

gsfowler

Super Moderator
Staff Member
PEB Forum Veteran
I have just re-read your decision notification and I believe that the rater was correct in accepting the opinion of the VA examiner over that of the pain management doctor that gave the opinion that your DDD in lower spine is caused by abnormal gait of your ankle condition.

However, if you are able to get another opinion from an orthopedic physician, it may hold more weight. You can also request that your examination be conducted by a VA provider, rather than a contractor if you would like.

As long as it has not been greater than one year since the last decision on the issue, you can reopen the claim with new and material evidence. You can either request your VSO to request another VA examination, or you can solicit another DBQ from a different provider.

I also think that if you take this to appeals, you have a pretty good chance of getting the DDD service connected secondary to your service connected ankle condition.
 

dwbell99

PEB Forum Regular Member
Registered Member
Why do you beleive that the rater was correct in accepting the opinion of the VA examiner over my doctor?
 

gsfowler

Super Moderator
Staff Member
PEB Forum Veteran
The linked journal article does not support the level of injury that you are claiming.

I recommend that you reopen with new medical evidence (DBQ completed by your spinal surgeon or an orthopedic physician) and more supportive published journal opinion. You can request that the VA reopen and tell them you only want an exam by a VA employee and not a contractor.

Most related journals reference severe abnormal gait as a contributory factor to DDD and the VA contracted provider did not opine that there was any abnormal gait present.

If you have any evidence in your private medical record to support any claims in disturbance of gait, they can be used to support your position. This would more than likely prevail in an appeal. Lay statements that show you had a severe disturbance of gait may prove useful too. A lay statement can be used to reopen the claim for appeal.

Additionally you should be filling for SSDI with the SSA. Get granted SSDI and you are almost certain to be granted IU. Get granted IU and you are almost certain to be granted SSDI.
 

dwbell99

PEB Forum Regular Member
Registered Member
Thanks, VA examiner rated the wrong gait (on the post L3-S1 fusion surgery instead of the pre-operation surgery).

Veterans pre-disk fusion abnormal gait was identified by Anil B. Desai, Chief of Compensation & Pension in his Peripheral Nerves Conditions (not including Diabetic Sensory-Motor Peripheral Neuropathy) DBQ dated 12/28/2017.

8. Gait:
Is the Veteran's gait normal?
[No] If no, describe abnormal gait.
Mild Limp
Provide etiology of abnormal gait:
Likely residuals of left ankle surgery
 
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