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    • Proof C&P Exams are often frauds
      Well, yes, remember who pays for your C and P exam.  Still, regulations provide that if you have a balance where 2 docs differ on opinion, the VA CAN choose one over the other, but has to give a reasons and bases as to why.   For example, one doctor can do a more thorough exam.  Or, one doctor can be preferred if he states he read your records, while another doc does not say this.   If you have been denied, the VA is required to give you the benefit of the doubt if the claim is "in equipose", that is, there is a balance between positive and negative evidence.   When you appeal, you can certainly argue that your private doc did a more thorough exam.   HOwever, your private doc may/may not made an applicable nexus statement.  YOu need to check your records to see if the nexus is there.  
    • Assistance With Sleep Apnea Claim
      The Reason I mention Mild  is to let vets know  That a lot of what is said at your VAMC can be turned around and used against you in your claim, so check your MyHealthVet Notes ever so often after you see a VA anything. ''Mild  My Assperralo'' jmo .......Buck
    • Reopened Claim & sent my Medical Records as evidence.
      No real update other than they've been treating my back/migraines with medication. They're setting up an eye exam to see if that has anything to do with the migraines. The doctor they sent me to examined me and was amazed at how bad my physical condition was and the VA not taking any responsibility by not service connecting any of my conditions. (They told me that on an MRI I had in 2000 that I had herniated/bulged discs) I'm still waiting on some kind of update, but it's still in 'gathering evidence' stage. They have my service records now as well as chiropractic records and the records from this recent trip to the doctor. Wondering if I'll get another C&P exam scheduled as I can't find anything in my eBenefits records history about the first one I had and the medical building I had it done at has been out of business for several years. They did send an email saying they should have a decision on my claim by April 2017??? Wow...That's weird they would even set that deadline so far out...so I really don't know what to do but wait...
    • DRO hearing
      Berta please read and tell me what you think. John D is on this for me as I type this.   "With respect to the issues pending before the VA which are, service connected bowel, bladder and PT (Permanent and Total) status, please consider;   1st with respect to the issue of PT. I have provided for the VA, very probative evidence not only from Dr. Craig Bash, but also the SSA that clearly shows that I should be PT. VA has yet to consider this evidence and I wish to go on record, that if the VA would rate me PT, I would drop ALL pending issues for service connected disability. This seems the easiest way for everyone and will save myself and the VA time and effort.   2nd, if the VA denies PT or refuses to allow issue 1 noted above to take place, then consider the following; I understand through my POA, that the DRO is mandating a C&P exam for the bowel/bladder. Apparently to reconcile Dr. Bash's IMO and other medical evidence in my favor, against a refuting record from 2012-2013. This constitutes a CUE in my opinion as the VA is obligated to not only apply the doctrine of reasonable doubt under CFR 3.102, but also apply VA's CFR mandate of relative equipoise in my favor. The evidence of record is clearly in my favor and Dr. Bash's opinion is at least as probative if not more than any other refuting opinion. I feel as if the VA is "doctor shopping" to secure a opinion against me, when the evidence is already clearly in my favor.    In short, I will not be attending any additional CP exam for bowel/bladder and I encourage the VA to rate me PT of which I will drop all remaining claims. By doing this, we can save everyone the time and effort to further develop and adjudicate pending issues. This would also allow the VA to more timely assist other veterans by clearing my issues off of the board."
    • Proof C&P Exams are often frauds
      Wow, I go to my C&P Thursday.. Sorry to hear that man.
    • Increase Upgrade rather then DRO or Re open
      A claim for increased disability in a compensation claim that was previously denied because all service-connected (SC) disabilities were considered noncompensable is a “claim for increase.”   I received on Dec 30 2015 eed of 8/2015  I received a non  compensable rating of migraines the CNP and the DBQ  stated I was prostrate weekly so in 3/20/2016 I filed for an upgrade within the year I also submitted new evidence a DBQ by a VA doctor in my favor as well as pointed at the past evidence in the DBQ done during the CNP of the orig claim,    now I was told I Cant file for an upgrade unless a year has passed is that true even though I have new evidence? Also will the VA see that if I cant and change it to an UPgrade ?
    • Proof C&P Exams are often frauds
      I lived I a VA hospital 6 months with failed pancreas surgeries.. yet they take the word of a screwy C&P examiner over the 6 months of VA records as an inpatient. The doctors and nurses write every move you make, every word you utter. 6 months of those records fill up those huge paper boxes used for zerox paper. You would think the VA would read those records. Instead they send you to some doctor who is only there to make you look bad at a C&P exam. Instead of a neutral doctor the ones they use for the C&P act like you are a fraud. They see you for a few minutes ask questions like a bad interrogation, trying to trip you up with statements. Those answers that are undeniable proof are in the records from your service and the 20 years of medical records plus the 6 months as an inpatient.   IMHO  
    • PTSD Claim and Reconsideration transfered claim was lost and found very confused
      I am a Veteran who has been diagnosed with PTSD by my VA Doctors in Montrose NY they implored me to go to the Montrose PTSD unit and I was told that the Montrose VA only takes Veterans who have in service stressors. I filed my claim for PTSD in Aug of 2015 the denied me in Jan 0f 2016 and never sent me a SOC or denial letter and denied me with out a CNP and  with out reviewing my PTSD diagnosis of Aug 2015 and my stay at PTSD unit in Oct until Nov 2015 since then I asked for a reconsideration  of the PTSD decision after I surmised I was denied and I also submitted new evidence like my diagnosis and the the stay at Montrose PTSD unit and Buddy Letter from a shipmate I did this on 3/20/2016 they closed it with no letters sent no CNP etc no letters in system I was told to put it back in and I did on 4/42016 and it was closed again on 4/26/2016 I then was told to put contention back in I did on 4/30/2016 and this was closed on 5/6/2016 no letter no SOC no CNP no nothing. my case was in NJ regional office I contacted them and the Homeless veterans coordinator then got my caseopened EED of 3/20/2016, then he had my case transferred to NY because I am homeless in NY and then it was closed again, I was   recently at a  standown where a Homeless veterans person with the regional office in NY  who contacted me verified I was a homeless took a state ment , she contacted me and told me that my case was going to a special unit I also have congressional liason who has been supportive and in contact I should be red flagged for homeless and it was a FDC claim as well they have a congressional inquiry where they found an old appeal from 2014 that was never dealt with any ways I need to understand what is going on or if anyone has deal with a similar situation, { How long my appeal since 2014 DRO should that take and also how long should a reconsideration for a homeless vet take this is not a new claim any input please.
    • Exams during flare up?
      The Knee and Leg     Rating 5256   Knee, ankylosis of:   Extremely unfavorable, in flexion at an angle of 45° or more 60 In flexion between 20° and 45° 50 In flexion between 10° and 20° 40 Favorable angle in full extension, or in slight flexion between 0° and 10° 30 5257   Knee, other impairment of:   Recurrent subluxation or lateral instability:   Severe 30 Moderate 20 Slight 10 5258   Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint 20 5259   Cartilage, semilunar, removal of, symptomatic 10 5260   Leg, limitation of flexion of:   Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 5261   Leg, limitation of extension of:   Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 5262   Tibia and fibula, impairment of:   Nonunion of, with loose motion, requiring brace 40 Malunion of:   With marked knee or ankle disability 30 With moderate knee or ankle disability 20 With slight knee or ankle disability 10 5263   Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) 10
    • Exams during flare up?
      §4.40   Functional loss. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.        §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.).  (c) 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.   §4.59   Painful motion. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. These are some of the references 

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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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