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    • Reviewing 2016/15 BVA Decisions for MST/PTSD, just might give you a greater sense of well being and help support your positive outlook. You can link to BVA Decisions, right from the VA.Gov home page. I just checked 4 somewhat similar BVA 2016 MST/PTSD Awards and 1 Denial, your claim appears to be much stronger than any of the 4 Awards. Semper Fi  
    • PS I forgot to mention.....I think the PUCS are all on line....I found on line the one that covered my husband in Vietnam...he had heard when they got back to the world that his unit in Vietnam got the PUC but the Marine Corps made them fill out their DD 214 forms themselves and none of them really knew what awards or decorations to put down.He always wondered about the PUC and there it was on his DD 215 and they sent the ribbon to him and any medals not made in Vietnam, and told him he could purchase the Vietnamese medals at a PX.  
    • Geez John....I am sure you questioned already the St Louis fire potential. I still have SMRS here from a vet who VA told were destroyed in the St Louis Fire. I told him to go to NARA site and he got them.His rep asked me to help him and showed me 2 pages of SMRS and the letter from VA that said the rest were destroyed in the fire. I immediately realized the VA was full iof crap on that---no watermarks or charred edges on the copies....I was with the local fire department for 8 years. Firemen , especially in a horrendous fire like St Louis was, did not have any time at all to select a few papers here and there from any vet's files. They told one vet here the same BS but he had enlisted AFTER the St louis fire. Has your father filled out a DD 149? The form is here somewhere. A DD 149 brought the Presidential Unit Citation to my husband and other awards he did not have on his DD 214, along with a DD 215. Most of the records lost in the fire were for USAF vets, not Army. When VA uses the fire excuse for any vet, I think the vet should request the records themselves from NARA. It could be possible they were destroyed but it also is possible the VA lied.  
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    • Indeed he is. But a NOD is more than just a ballpark statement that one is disagreeing with the decision. On Christmas Eve (of course) 1988 my husband got a proposed reduction letter. The tree went flying out the front door.They proposed to reduce his then 30% PTSD to 10% since he had obtained 'substantial employment' with the VA  and also was in Voc Rehab. I wrote the NOD stating he only got the VA job because the director didnt want him to file an EEOC case on another hiring matter for a full time fireman's position, when their personnel director violated the law. OPM had found him qualified but he never even got an interview because the fire department at this VA hired relatives....for years without interviewing qualified veterans.He got a part time VA job in their dietetics department within hours after we talked to the director about this ( until another VA fireman position opened -per the director-and none ever did) yet he was a former PHVAC, and Nuke as well. Substantial employment? My butt.The personnel director was removed due to that fiasco.I gave them the VAMC's director's contact info and testified I was a witness to this entire situation, in the NOD. Also I pointed out that ONE sole semester of VOC Rehab does not make anyone a rocket scientist and he already had requested accommodations to his PTSD, and needed a note taker and also tutoring from the college. About 7-8 months later AmVets on his POA called here but he had not gotten home yet and AMVETS said that's OK, just tell him the VA will send him a formal letter that they have restored his comp back to 30%. This was 1988 and no PC internet then. I used the regulations they quoted in the proposed reduction letter against them and also used plain old common sense. Same thing with my daughter's NOD.I raised CUE in it too.VA Educational department error. That was resolved in 3 weeks,after I mailed her the NOD, she copied and signed it and sent it in. I used the regulations from their own Chapter 35 application.I guess no one at VA Edu knew how to read the regs. A NOD is the most important avenue of attack to a faulty VA decision. Telling them why they are wrong, with evidence they have and how the regulations were misinterpreted can do wonders....but many times they will still fight back. If it is a question of a medical nature( lousy C & P exams  are the most likely cause of denials) than an IMO/IME is definitely in order. If they said your SMRs were 'silent' for any nexus, with the NOD ,send them a copy of anything in the SMRs that prove the nexus. And of course if they made a legal error to your detriment in a recent decision within the appeal period formally ask them to go CUE themselves. ....explained here many many times already....but file the NOD on time if they do not react to this type of CUE request.          





carlie

Help With Dc 5019 - Please

3 posts in this topic

My brain is fried right now from doing so much research so I really need some input here

The following is info from M21-1.

Does this mean that if you are already service connected for diagnostic code 5019

you should be receiving a compensable minimum of 10 percent ?

Thanks so much for your help everyone, I sure do appreciate it.

carlie

************************************************************

e. Rating Cases with DC 5013 Through 5024 Use the table below to rate cases that use DC 5013 through 5024.

If the DC of the case is … Then …

gout under DC 5017 rate the case as rheumatoid arthritis, 5002.

• 5013 through 5016, and

• 5018 through 5024 evaluate the case according to the criteria for limited motion or painful motion under DC 5003, degenerative arthritis.

Note: The provisions under DC 5003 regarding a compensable minimum evaluation of 10 percent for limited or painful motion apply to these diagnostic codes and no others.

Reference: For more information on 10 and 20 percent ratings based on x-ray findings, see 38 CFR 4.71a, DC 5003, Note (2).

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I think- they mean a minimum of 10% with both limited motion and also pain.

This claim might help you- but it is dated 1997 and I dont know if any of these regs have changed-dont think so-

http://www.va.gov/vetapp97/files3/9722700.txt

It makes the point that they rated the DC 5019 condition under the 5003 provisions.

'The veteran’s right shoulder and left shoulder disabilities

have been evaluated under Diagnostic Code (DC) 5019 for

bursitis. This Code provision states that bursitis is to be

evaluated under DC 5003 as for degenerative arthritis.

38 C.F.R. § 4.71a, DC 5019.

DC 5003 states that 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 involved. When however, the limitation of

motion of the specific joint or joints involved is

noncompensable under the appropriate diagnostic codes, a

rating of 10 percent is to be applied for each such major

joint or group of minor joints affected by limitation of

motion. Limitation of motion must be objectively confirmed

by findings such as swelling, muscle spasm, or satisfactory

evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. "

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Berta and all,

On my 2002 C & P, VA Doc put " insertion of the Trapezius muscle on the right is

very tender to palpation -- I think there is a rule, can't find it now but it refers to

pain on palpation and that this pain must also be considered.

How about this one here ? It just refers to 5019 evaluated at 10 %, . (I am not using this as an example of painful palpation).

http://www.va.gov/vetapp04/files2/0415517.txt

III. Compensable rating - Bursitis of the left shoulder

The veteran seeks a compensable rating for his service-

connected bursitis of the left shoulder. Disability

evaluations are based upon the average impairment of earning

capacity as contemplated by the schedule for rating

disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part

4 (2003). In order to evaluate the level of disability and

any changes in condition, it is necessary to consider the

complete medical history of the veteran's condition.

Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

However, where an increase in the level of a service-

connected disability is at issue, the primary concern is the

present level of disability. Francisco v. Brown, 7 Vet.

App. 55 (1994). In cases in which a reasonable doubt arises

as to the appropriate degree of disability to be assigned,

such doubt shall be resolved in favor of the veteran.

38 C.F.R. § 4.3 (2003). Where there is a question as to

which of two evaluations shall be applied, the higher

evaluation will be assigned if the disability picture more

nearly approximates the criteria required for that rating.

38 C.F.R. § 4.7 (2003).

When evaluating musculoskeletal disabilities, the Board must

also consider whether a higher disability evaluation is

warranted on the basis of functional loss due to pain or due

to weakness, fatigability, incoordination, or pain on

movement of a joint under 38 C.F.R. §§ 4.40 and 4.45 under

any applicable diagnostic code pertaining to limitation of

motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995).

Bursitis is rated under Diagnostic Code 5019, which in turn

makes reference to Diagnostic Code 5003, for degenerative

arthritis. Diagnostic Code 5003 specifies that degenerative

arthritis of a major joint be rated under the criteria for

limitation of motion of the affected joint, with a minimum 10

percent rating assigned for such limitation. Limitation of

motion of the shoulder is rated under Diagnostic Code 5201,

which awards a 30 percent rating for motion of the arm

limited to 25º from the side, a 20 percent rating for motion

of the arm to midway between the side and shoulder level, and

a 20 percent rating for limitation of motion at the shoulder

level; these ratings apply to minor, that is, non-dominant

joints. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (2003). In

every case where the requirements for a compensable rating

are not met, a zero percent evaluation may be assigned, even

if the diagnostic schedule does not provide for such a

noncompensable evaluation. 38 C.F.R. § 4.31 (2003).

According to the October 2001 VA examination report, he is

right-handed, and thus his left shoulder is a minor joint.

The Board notes that the position of an arm held out at

shoulder level is 90 degrees from the position of the arm at

the side. See 38 C.F.R. § 4.71a, Plate I (2003).

The veteran underwent VA orthopedic examination in October

2001. He reported a long history of left shoulder pain which

extends across his chest both anteriorly and posteriorly. On

objective examination, he was without edema, effusion,

redness, heat, or instability of the left shoulder joint.

However, he did report weakness and tenderness. He also had

abnormal movement and guarding of movement. Range of motion

testing of the left shoulder revealed forward flexion to

162?, abduction to 161?, external rotation to 84?, and

internal rotation to 82?. While pain, weakness, instability,

fatigability, and lack of endurance were noted, no additional

limitation of motion was attributed to these factors. X-rays

of the left shoulder revealed minor degenerative changes.

The final diagnosis was of degenerative joint disease of the

left shoulder, with loss function due to pain.

The veteran has also received VA outpatient treatment for

left shoulder pain. However, his outpatient treatment

records do not reflect any range of motion findings.

Based on the October 2001 examination findings, the veteran

does not have sufficient limitation of motion of the left

shoulder to warrant a compensable rating. According to

Diagnostic Code 5201, the veteran's left arm must be limited

to shoulder level movement in order for a compensable rating

to be warranted. However, the veteran has both forward

flexion and abduction of the left shoulder to 162º and 161º,

respectively, well in excess of shoulder level. Therefore,

the criteria for the award of a compensable rating are not

met, and a noncompensable rating must be assigned under

Diagnostic Code 5201.

However, the Board also notes that Diagnostic Code 5003,

referenced by Diagnostic Code 5019, awards claimants a 10

percent rating for each affected major joint, if the joint

does not have limitation of motion to a compensable degree,

but does have some limitation of motion. Therefore, because

the veteran has already been awarded service connection for

bursitis of the left shoulder, and has some limited and

painful motion of that joint, a 10 percent rating is

warranted for this disability under Diagnostic Code 5003.

Also considered by the Board were the provisions of 38 C.F.R.

§ 4.40 which requires proper consideration to be given the

effects of pain in assigning a disability rating, as well as

the provisions of 38 C.F.R. § 4.45 and the Court's holding in

DeLuca. However, there is no evidence in the present case

that there is any weakness, excess fatigability, or

incoordination due to flare-ups of the service-connected left

shoulder disability which would warrant increased

compensation. While the VA examiner noted in October 2001

that the veteran's left shoulder displayed pain on motion,

weakness, and tenderness, the examiner did not express this

additional impairment in terms of additional limitation of

motion. Therefore, a rating in excess of 10 percent under

38 C.F.R. §§ 4.40, 4.45 or under DeLuca is not warranted.

In conclusion, the preponderance of the evidence supports a

compensable rating of 10 percent and no higher for the

veteran's service-connected bursitis of the left shoulder.

As a preponderance of the evidence is against the award of an

increased rating in excess of 10 percent, the benefit of the

doubt doctrine is not applicable in the instant appeal. See

38 U.S.C.A. § 5107(:( (West 2002); Ortiz v. Principi, 274

F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet.

App. 49, 55-57 (1991).

specific joint involved. When however, the limitation of

motion of the specific joint or joints involved is

noncompensable under the appropriate diagnostic codes, a

rating of 10 percent is to be applied for each such major

joint or group of minor joints affected by limitation of

motion. Limitation of motion must be objectively confirmed

by findings such as swelling, muscle spasm, or satisfactory

evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. "

Edited by carlie

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