ELITE LEARNING

DEPARTMENT OF VETERANS AFFAIRS

TRANSCRIPT OF HEARING

BEFORE


BOARD OF VETERANS’ APPEALS

WASHINGTON, D.C.  20420


Sitting at Philadelphia, Pennsylvania


IN THE APPEAL OF:

Name Not Disclosed

99999999

 

DATE:

May 16, 2018

 

REPRESENTED BY:

State Service Organization

 

MEMBER OF BOARD:

JudgeG, Judge


WITNESSES:

Bill MC



P R O C E E D I N G S

JUDGE:  This is JudgeG presiding at a Travel Board Hearing before the Board of Veterans Appeals on May 16, 2018.  We’re in Philadelphia.  The Appellant is Calvin L. Name Not Disclosed, with a file number of 99999999.  Mr. Name Not Disclosed is represented by the State Service Organization.

Prior to going on record, the Appellant was informed of the informal nature of the proceeding and the fact that the hearing is being tape recorded and a typed transcript will be prepared and that I shall issue a decision sometime in the future.

Also, prior to going on the record we determined the issues we’re going to be discussing today are:  Entitlement to service connection for multiple sclerosis, entitlement to service connection for a neurogenic bladder claimed as a urology issue, entitlement to service connection for atrial fibrillation, and entitlement to a rating in excess of 10% for lumbar strain with degenerative arthritis and degenerative disc disease. 

We also agreed that we’re going to hold the record open for 60 days from the date of this hearing to allow submission of additional evidence. 

Mr. Name Not Disclosed, I ask you to remain seated, but raise your right hand. 

(OATH ADMINISTERED)

JUDGE:  Thank you, Mr. B.  Mr. MC would you like to proceed, please?

BILL MC:  Okay, thank you, Mr. JudgeG.

VETERAN:  One correction.  My last name, it’s two Ts.

JUDGE:  Oh, okay, we have you down as one T here. 

VETERAN:  Correct.

JUDGE:  I got to make sure that’s in the system that way, too.  Okay, thank you for the correction, Mr. Name Not Disclosed.  I apologize for that. 

BILL MC:  Thank you, Mr. JudgeG. 

Calvin, we’ll start out talking about your back, about the lumbar strain.  The issue today isn’t whether or not it’s service connected.  What the VA’s looking for now is whether they can grant you an increased rating.  So, trying to convince the VA that your back is service connected is not the issue.  It’s a matter of how bad does your back bother you and in what ways does it impact your life. 

Another important consideration of the VA is what’s happening in your life today?  If the service connected disability increases in aggravation or how much it bothers you, it may warrant an increase in the disability rating that the VA gives you.  Basically, what we’re looking for is sort of a summary from you of how your back issues bother you today and at what level you would say they impact your life. 

For instance, if your back is so annoying that you can’t sleep at night and then you get anxious, aggravated and annoyed, that’s another factor that the back is causing you aggravation, anxiety and so forth.  So, maybe you could perhaps give us or Mr. JudgeG most importantly, a summary of where you’re at now with your back issues.  Start out with how you hurt your back and then what’s been going on over the years so that he can get a feel for how badly it impacts your life. 

VETERAN:  I first hurt my back when I was in the service.  That was back in 1971.  Until now, I have problems walking.  I walk funny.  My wife will look at me and she says, “Your back bothering you.”  I tell her of course, yes.  I don’t carry a lot of groceries like the heavy stuff.  Getting up to go to the bathroom at night, I have fallen a couple of times because sometimes my leg would really bother me.

JUDGE:  Do you have shooting pains going down your leg from your back?

VETERAN:  Yes.  I had expressed that to the medical doctor, Dr. Wong (phonetic).

BILL MC:  That’s VA?

VETERAN:  Yes.  It takes so long to get an appointment.  I do have an appointment coming up.

JUDGE:  What I would suggest, Mr. Name Not Disclosed, is you put in a claim for that pain because you could be compensated separate for that.  That’s called radiculopathy and many times that flows from a back problem, so you could get a rating for your back and you can also get a rating for the pain going down your leg.  I don't have any jurisdiction over the pain in your leg right now because you haven’t submitted a claim.  I highly suggest you submit a claim for that.  You could be entitled to additional money for that. 

VETERAN:  Okay.

BILL MC:  As you mentioned, the back test of course, pain in other areas, the sciatica and it’s impacted your ability to walk obviously.  Do you have any problems with your feet?  Sometimes when you have a back problem there’s a condition called drop foot where your foot is sort of difficult to control.  Do you run into that?

VETERAN:  I have run into sometimes my foot will shake.  My wife said I drag my feet sometimes.  I notice it but I don’t pay it too much attention.

BILL MC:  In fact, Mr. JudgeG, ironically today I was walking with him and I said, “Man, I had back problems about two years ago and I could hardly walk for about two months, and I notice that you’re walking like I did and you’re dragging a foot.”  We got into that conversation there.  That’s probably the sciatica issue kicking in. 

How about the history of your medical treatments?  Did you get any treatment outside the VA for your back?

VETERAN:  No.

BILL MC:  None.  You started seeing the clinic in Hamilton?

VETERAN:  Yes.

BILL MC:  That’s Dr. Wong?

VETERAN:  Dr. Wong.

BILL MC:  Did he refer you to any specialist within the VA for any treatment?

VETERAN:  Yes.  As a matter of fact, they actually just did tests about two or three months ago up in East Orange.

JUDGE:  For your back disability?

VETERAN:  For my back.

BILL MC:  That would be East Orange Medical Center?

VETERAN:  Yes.

BILL MC:  East Orange, New Jersey.  Then, did they continue with those treatments?

VETERAN:  They recommended I have therapy.  Most people know, therapy doesn’t really help, not unless you get it on a long‑term basis.  I think they only do like 16 visits.  It helped at that instant, but after that, all hell breaks loose.

JUDGE:  Pain-wise?

VETERAN:  Pain.  

BILL MC:  What medications, would you take the medications that they prescribed?

VETERAN:  Naproxen, but sometimes I take Aleve. 

BILL MC:  Have they talked to you about anything other types of therapy like therapeutic massage, chiropractic, or anything like that?

VETERAN:  No, they haven’t. 

BILL MC:  It sounds to me like perhaps you are missing out because maybe the treatment should have been more aggressive along the way?

VETERAN:  I think so. 

BILL MC:  Perhaps, if the VA was able to treat you more frequently or refer you out to some type of specialist, it would be advantageous?

VETERAN:  It’s very possible.  They had mentioned about maybe me having a needle put in my back.  I said no way.  I had two needles in my back and I’m not going that route any more.  I just have to hurt.

BILL MC:  So, no back surgeries as far as you’re concerned?

VETERAN:  No.

BILL MC:  How has it impacted other areas of your life?  You have trouble sleeping due to the back pain?

VETERAN:  I do have trouble laying on my back at night.  I have to lay on my side.  Basically, that’s about it.

BILL MC:  You were about to mention something about getting up and going to the bathroom.  Is that because in the middle of the night you have to be extra careful because your back might be out of whack?

VETERAN:  I do.  I have to be extra careful because like I said earlier, I have fallen a couple of times.  I have to start off real slow.

BILL MC:  Are you able to drive?  Does this impede your ability to drive a car or move around?

VETERAN:  It does to some extent.  If my back is bothering me, I don’t drive.  I do wear a brace and it was recommended that I do not wear it every day, maybe on and off. 

BILL MC:  The brace was issued by the VA?

VETERAN:  Yes.

BILL MC:  Were there any specific questions, Mr. JudgeG?

JUDGE:  Yes, I have a few.  Mr. Name Not Disclosed, can you tell me, are you currently working?

VETERAN:  No. 

JUDGE:  What did you do, Sir?

VETERAN:  I was a medical help.

JUDGE:  If you were working now, do you think you’d have problems with your back?

VETERAN:  I probably would, sitting all day long.

JUDGE:  I saw on the reports from the VA examinations.  They’re saying that you don’t have flare ups of pain.  Is that correct?

VETERAN:  No. 

JUDGE:  That’s what I was going to ask you.  What’s a normal level of pain for your back?

VETERAN:  I’d say a 4 to 5.

JUDGE:  Out of 10?  Then sometimes you get flares of pain?  Is that correct?

VETERAN:  Sometimes it’s worse.

JUDGE:  How high would that flare get?

VETERAN:  Maybe an 8.

JUDGE:  Definitely, you’re actually disputing the fact that these examiners are saying you did not have flares of pain.  I’m looking at you and find it incredible that you did have pain that sometimes your back’s a 4 then other times it gets as bad as an 8.  Has any doctor told you that you should really lie down and take bedrest to treat your back?

VETERAN:  No.

JUDGE:  On the bad days when you have that 8 pain, tell me what your day is like.

VETERAN:  Like hell.  I don’t do anything.  I lay down on my side.  That’s it.

JUDGE:  That’s about all because the pain’s so intense, you can’t really do anything else?

VETERAN:  I’ll take something like Aleve.

JUDGE:  Does that help at all?

VETERAN:  Not really.

JUDGE:  Does your back impair your sleep?  Are you waking up if you’re on it long or anything like that?

VETERAN:  I don’t sleep at night hardly.  I’m up 6, 7, 8 times a night. 

JUDGE:  Okay.  The last time your back by VA for compensation and pension purposes was September 2015.  Do you think your back’s gotten worse since then?

VETERAN:  Yes.

JUDGE:  My initial impression Mr. Name Not Disclosed, is I’ll probably schedule you for another examination.  Would you have any problem coming in for that?

VETERAN:  Over here?

JUDGE:  No, they would schedule it wherever it’s best convenient, wherever you get your treatment.  I’m not sure where they would schedule you in Jersey. 

VETERAN:  East Orange.

JUDGE:  If there’s where you went before, if that’s convenient for you, Yes, Sir.

VETERAN:  East Orange or Orange.

JUDGE:  Okay.  Again, what I’d like to do is see what your current disability is and I would like to have someone get some accurate history that you do have back flares because that is important.  I don't have any more questions right now on your back.

BILL MC:  We’d like a little history now about the MS, how you think that might be tied into military service.  Around what year would you say that the MS was first diagnosed?

VETERAN:  ’79.

JUDGE:  November ’79.
BILL MC:  What was the treatment history there?

VETERAN:  When I came home from the hospital, I had a drug store.  Currently now, I’m not taking anything.  I’ve been in the hospital one time after that and I forgot the medication I was taking, but as of right now, I’m not taking anything for MS.

BILL MC:  When you see Dr. Wong, does that topic come up about multiple sclerosis at all and the VA?

VETERAN:  It does come up, but I haven’t really had any issues that I needed to be addressed. 

BILL MC:  Do you have any questions?

JUDGE:  What are your symptoms right now, Mr. Name Not Disclosed, of MS?

VETERAN:  I miss my gait.  That’s like walking up stairs.  I get extremely tired sometimes.  I can’t open doors.  If I go to open doors, I get real sick.  I also get real sick if I get hungry and don’t eat right away.  I get real sick.

JUDGE:  Nauseous, or you just know that something’s wrong with you?

VETERAN:  I get weak, irritable.

JUDGE:  Did you have any of those symptoms during military service?

VETERAN:  No.

JUDGE:  Are you sure?

VETERAN:  Not that I remember.

JUDGE:  You don’t recall having any sort of starting to feel weak or anything like that?

VETERAN:  I guess it didn't really affect me to where I would notice something was wrong.

JUDGE:  Do you recall feeling weak and wondering why I’m feeling weaker?

VETERAN:  Yes.

JUDGE:  This was between March and December of ’71?

VETERAN:  Yes.

JUDGE:  Do you recall experiencing other symptoms of MS?  You don’t have to have the diagnosis, maybe the symptoms while you were in military service?  I realize it’s quite some time ago. 

VETERAN:  I can’t recall.

JUDGE:  You started feeling the tiredness during service.  You recall how soon after service you started experiencing some of the other symptoms?  Was that pretty soon after discharge?

VETERAN:  It wasn’t right after discharge, but I’ll say within a year or two. 

JUDGE:  Okay, you started definitely experiencing symptoms that you now know are MS?

VETERAN:  Yes.

JUDGE:  What we need, that claim has been denied for service connection, in service injury or current diagnosis and a link.  What he have right now is a current diagnosis.  We need the link, and with your testimony, potentially we have the in service incident.  Has any doctor told you that  your current MS is due to your military service?

VETERAN:  No.

JUDGE:  If you can get such a statement, that would help your case.  They just have to say as likely as not it began during military service, a 50/50 chance.  A lot of doctors are comfortable actually saying that.  If they can’t state to anything else, it’s this.  Again, that is the reason the claim has been denied so far, is we need medical evidence linking your current disability to your military service.

VETERAN:  The doctor that treated me for the MS is retired.  How can I -- I don’t even know if he’s still living.

JUDGE:  It can be any doctor, your current treating doctor.  If you just tell them the symptoms you started experiencing in your military service.  Say hey doc, as likely as not, was this the first time that my MS appeared during military service?  It was diagnosed in ’79, but it was there in ’71, okay?  Does that make sense?

VETERAN:  Okay.

BILL MC:  Thank you.  The next issue is the bladder.  You started to speak a little bit about the bladder issue.  They’re calling it neurogenic bladder.  What’s been happening with that?

VETERAN:  I have weak urine.  I’ll be up 6, 7, 8 times a night going to the bathroom.  If I have to go to the bathroom when I’m out, I have to go right then.

JUDGE:  Urinary urgency.

BILL MC:  Has any doctor mentioned that could be connected to even your back problems?

VETERAN:  I would have to go to him.

JUDGE:  Yes, because frequency, we have the ability to connect a bladder problem to a back.  You can have impairment in your nerves that affects your bladder from your back, if that makes sense.  That will be one thing to do.  Do you recall having any urinary problems while you were in military service?

VETERAN:  Not really noticeable, I guess.

JUDGE:  Do you recall when you first started noticing, hey, I’m going to the bathroom a lot more, I gotta get to the bathroom quick?

VETERAN:  I was going then, but young though.  I didn't really pay it too much attention.

JUDGE:  You think you started having symptoms during military service?

VETERAN:  Yes.

JUDGE:  How about before military service?  Do you recall having any sort of symptoms?

VETERAN:  Not that I’m aware of.

JUDGE:  We could talk about either direct service connection, meaning it started during your military service and we’re also going to look at it as being caused by your back.  So, we have two different ways to approach that claim.  Again, Mr. MC will ask you of any doctors linking it.  If you can get that statement to either link your bladder to symptoms that began during military service or to your back disability, either one of those will help your claim and allow me to grant the claim actually.  Okay?  I do not have any more questions right now on the bladder issue. 

BILL MC:  The final one, Calvin, was the atrial fibrillation.  What’s your history there?

VETERAN:  I’m due to have an operation.  They said I would have an operation within five years.  It’s been just about that long. 

BILL MC:  Did you have any problems in service or within a year or two of military service in that area? 

VETERAN:  I have known that there was something wrong with my heart prior to me going into service, but I guess it just got really bad within the last three years.

BILL MC:  When you say that, do you mean that a doctor had diagnosed you with something before you went in or while you were in you were told you had high blood pressure or a similar heart issue?

VETERAN:  I was told that I did have -- I had been told I had a hole in my heart or something?

JUDGE:  Mitral valve prolapse.

BILL MC:  So, they were telling you before you even went in the service that they noticed that?

VETERAN:  Yes.

BILL MC:  You would have thought that would have been enough to eliminate some of the concerns.  So, did the condition get aggravated while you were in?  Did you go to sick call or were you hospitalized at all for any heart issues?

VETERAN:  Not for that, not then, no.  Afterwards.

JUDGE:  How soon afterwards?

VETERAN:  Maybe a few years.

JUDGE:  Did you start getting cardiac treatment, heart treatment?

VETERAN:  Actually, about four years ago, I went to the VA and I was complaining then.  They did work up on me and they took me straight from the VA to the hospital.

JUDGE:  Were you complaining of chest pains or just lack of energy?

VETERAN:  Lack of energy.

JUDGE:  Lightheadedness?

VETERAN:  Extreme tiredness.  I don’t remember all the symptoms.  But I know there was something wrong. 

BILL MC:  Is the VA planning to do the operation or is it just outside?

VETERAN:  They’re actually -- I don't know if they’re actually planning to do it, but the cardiologist said that I would probably require surgery within about five years. 

BILL MC:  So you’re seeing a VA cardiologist up there?  Okay.  Any other questions?

JUDGE:  I would just ask if any doctors told you your afib is due to your military service. 

VETERAN:  I haven’t had a cardiologist --

JUDGE:  If you could obtain such a statement, it would help.  Before you started military service, young, strong, ready to go, high school sports, eventually?

VETERAN:  Yes.

JUDGE:  During military service, did you find yourself starting to slow down?

VETERAN:  Yes.

JUDGE:  More than you would have thought normal for the activities you were doing?

VETERAN:  Yes.

JUDGE:  Maybe that was a little bit of your heart starting to go at that time.  It seems like there might have been something preexisting.  You recall ever having hear problems other than being told you had heart problems before your military service?

VETERAN:  No.

JUDGE:  No chest pain, anything like that? 

VETERAN:  No.

JUDGE:  Again, you at least were active and everything, right?

VETERAN:  Yes.

BILL MC:  Mr. Name Not Disclosed was actually in the medical field while he was in the military, so you were a medic?

VETERAN:  Right. 

JUDGE:  That actually gives your testimony a little more weight.  Do you recall any sort of symptoms that you as a trained medic would know this is not a normal heart symptom?  Did you recognize you had any of those during military service?

VETERAN:  I didn't recognize it, but I knew there was something wrong.

JUDGE:  I’m going to ask the same question for your MS.  As a trained medic, did you notice anything that was not a normal symptom that you were experiencing during military service?

VETERAN:  Tiredness.

JUDGE:  Okay, because again, as a health care professional at one time, we do give you greater weight to statements that deal with something that you’re trained in. 

Okay, I do not have any more questions on the atrial fibrillation.  Do you have a closing, Mr. MC?

BILL MC:  Yes, Mr. JudgeG.  First of all, we appreciate this opportunity to appear before the court and with you presiding, I always encourage Veterans like Mr. Name Not Disclosed to try to take their appeal this far because one thing I stress is the fact that the VA again, it’s not an adversary situation.  It’s a situation where the VA is trying to help the vet by looking for something that might have been overlooked in the prior decisions.  We’re pleased that Mr. Name Not Disclosed was able to get to this level today.  I think in thorough discussion here today also that there’s a couple of other issues with the lumbar strain that have to be considered, like you mentioned the radiculopathy and the sciatic pain and how that affects him, and even the foot drop and the way that impacts his life.   What we’ll work on in the next 60 days is perhaps getting some more medical statements from doctors that treat Calvin and whether they can at least render an opinion as to whether or not they think that these issues might have started in service or gotten worse in the service.

JUDGE:  Perfect.

BILL MC:  Calvin, is there anything that you feel we should add and get on the record because this is important that we know everything that’s going on.  Like we thought before, it’s a matter of how much this impacts your life, too.  You can have a 10% disability that is incredibly stressful and causes a lot of anxiety.  If you tell somebody that man, this really gets me down or creates anxiety, gets me agitated, that’s very realistic.  So, anything else you can think of? 

VETERAN:  Not at this moment, but I will be contacting my doctors starting tomorrow. 

JUDGE:  During flares of back pain, how much back motion are you able to move?  Pain free motion, I should say?

VETERAN:  I don’t know.

JUDGE:  If normally your range of motion, and I’m just making these numbers up, are 1 to 90 when your pain is like 4, what is it on a bad day?  Does it drop to like 1 to 50, 1 to 40?  Do you have even lesser than that?

VETERAN:  1 to 60. 

JUDGE:  Okay, so you have at least a third if almost half your motion is lost due to back pain on a bad day?

VETERAN:  When it’s bothering me real bad, you can really tell in how I walk. 

JUDGE:  Again, your back is rated on range of motion too, so if you’re really limited in your side to side turning, rotation, do you do that at all?

VETERAN:  I don’t.

JUDGE:  You don’t at all because you’re afraid of pain or it does hurt?

VETERAN:  Right.

JUDGE:  How about the lateral bending side to side?  Can you do that?

VETERAN:  I don’t do that either.  I don’t do anything that’s going to aggravate it.

JUDGE:  Even on a good day?

VETERAN:  Even on a good day. 

JUDGE:  Okay.  Thank you, I apologize I didn't ask you those questions earlier.  Mr. Name Not Disclosed, as Mr. MC basically stated, you must have had an idea of how this hearing was going to go.  I don’t want you to answer me right away, but think back.  Did you tell me everything you wanted to tell me?  Again, just take a second because once you leave here, the hearing’s over.  I would hate to have you say I wish I said x, y or z.

VETERAN:  I think I’ve said everything.

JUDGE:  Okay.  Are you satisfied with the conduct of the hearing and do you feel you had a fair opportunity to be heard?

VETERAN:  Yes, I do. 

JUDGE:  Okay.  I’d like to thank you for your military service.  I’d like to thank you for taking the time to appear before me because I believe it’s going to be some valuable evidence and information to work with.  Thank you, Mr. MC for your presentation also.  That helped me very much.  I appreciate that.

BILL MC:  Thank you.

JUDGE:  With that, we’ll go off the record.

(HEARING ADJOURNED)