tdiu Low Back Disability Rating

[Irish-7]

I had 6 weeks of doctor ordered bedrest within 12 months of military retirement and filing for disability. I felt that this met the criteria for intervertebral disk syndrome in that I have a bulging disk (L4-L5) and a herniated disk (L5-S1). The doctor's clinical notes from the 2 weeks (01-15 APR 10) and the 4 weeks ( 10 MAY - 07 JUN 10) were turned in 4 times. During my Comp & Pen Exam, I asked the doctor if incapacitating episodes had any bearing on my rating. He did not want to talk about it. I had the C&P Exam narrative mailed to me. The question that pertained to incapacitating episodes was answered "about once per month". I copied the notes (3rd submission) and faxed it to the VAMC deciding my claim. I sent the whole exam, with my corrections to all the mistakes, through my VSO with the VFW to the VA as well (4th time). I was rated 20% for my lumbar spine. The Web Automated Reference Material System (WARMS) states that 6 weeks incap/bedrest is 60%. I did get an overall rating of 90% and have been approved for Individual Unemployability. I don't want to sound like a malcontent, but I really want this corrected. Should I appeal or file NOD for DRO? Perhaps I am misunderstanding something here. There is no way the rater missed this evidence, as it was highlighted in my file. Either I did not meet the criteria, or the VA deliberately ignored this. Any input would be appreciated.

[Irish-7]

Hoppy, I am grateful for your timely response. To answer your questions, the following info is provided: Filed for Service Connected Disability on 09 JUL 10 thru VFW VSO. He gave my portfolio to VARO on 13 JUL 10. I retired from the Army on 30 SEP 10. My C&P exam was on 20 & 26 OCT 10. My decision was dated 06 SEP 11. During the C&P exam, I turned in the clinical notes from doctor appointments scheduled between filing in JUL 10 and C&P exam in OCT 10, including an appointment 4 days before the exam. I did NOT submit clinical notes after my exam at the advice of my VSO, as though it would further delay my claim. However, I gave the VA complete civilian and military health records. Both files showed a track record of pain, numbness and subsequent treatment for lumbar spinal conditions since 2000. Also enclosed were multiple MRIs showing degenerative disk disease, bulging and herniated disks. I felt that was evidence of a chronic condition. To me, the approved Line of Duty established service connection. I did turn in clinical notes from office visits between C&P exam and VA award with my request for Individual Unemployability, so there are documents showing these conditions are still present. I would like to clarify my submission of notes 4 times. There was a copy in the file that I submitted. I included duplicates of those documents with the notes that I turned in during the C&P exam (after the examiner avoided my question). I faxed just the pages with physician ordered bed rest directly to the VARO when I read the misrepresentation on the C&P exam narrative. Another copy was sent through my VFW VSO with the corrected copy of my exam report (I made entries in pen, highlighting mistakes). I did NOT just bombard the VA with multiple, duplicate documents. The follow on submissions were motivated by the examiner and errors are the exam report. This perceived error on my decision is merely the largest discrepancy that I have with my award. I felt (after reading WARMS) that I was short-changed / downplayed on several conditions that I claimed. Ulcer (awarded 10%, WARMS states 40%), neck (got 10%, expected 30%), PTSD (given 10%, met WARMS criteria for 30%) and more. Perhaps I should just "let go". Since I was approved for IU, I don't want to complain. I truly believe that the stress involved with the filing, waiting (financial hardship) and deciding to appeal is worse than the combat that made me eligible. Anyway, I have rambled enough. Thanks for your advice.

[Hoppy]

Irish-7

I have done a lot of research and talked with many veterans who have tried to use the bed rest provisions to obtain a higher rating. I will post more over the weekend. They are not allowing civilians on the base for the next two days and I cant get to my main computer where I have my back claim files stored until saturday.

[Teac]

First Irish, Welcom to Hadit,

As to your back disability... I've had back issues since getting thrown from a moving jeep in 1975.In 1986 the va rated me at 10%, but in 1999 things got real bad and I was rated 60% with TDIU. Today it is almost impossible to get a rating at 60% for a degenerative disc issue. Under the old rating schedule the ratings were based partly on subjective findings, and if you had an underlining nerve issues you didn't even get a seperate rating.

Today prescribed bedrest plays a very important part in determining a rating, or the rating is determined based on how well you you can bend, i.e. limited movement. And any nerve issues are rated seperately. Either way it is almost impossible to get a 60% rating under the guidelines they use today. In fact, I very seldem even seek threatment because I am so used to the muscle relaxers, and motrin drills...I figure why bother....

I doubt that under todays rules I would even be rated 60%. My comments are not to discourge you but just to let you know that a 60% rating is very hard to acheive. Regardless, fight for every thing that you think you have coming.. we can only offer opinions, advice and support...unfortunately the va does the ratings......

I wish you the best.

[donh777]

I had a c&p exam in sept 2010.. Examiner said i could bent to 50degrees. Same examiner had in his report I had 47 days of doctor prescribed bedrest. One private physician and one VA pcp. What does VA do,,,,,,reduce me from 40% to 20% effective on date of exam. Got my 40% back on range of motion from another c&P examiner on March 8 this year. I have already filed another NOD. and asked for DRO review.

[Irish-7]

Again, I am most appreciative of everyone's timely replies. I admit, I am naive to the ways and thought process of the Veterans Administration. To me, it seemed cut and dry. WARMS says 6 weeks bedrest was 60%, I had it in writing. But, then again, I was either wrong or mis-rated on the other disabilities, too. After 30 years in the Army, I am accustomed to following written rules and regulations. I get the feeling that the VA does not really go by their established criteria. I truly believe that they just rate you however they please, as long as it does not add up to 100% the first time. You have to fight for every percentage point and every penny. Disgraceful. I am hoping to find a retired DRO, VA rater or attorney that is familiar enough with the system (like you guys) and have them review my whole case before I file the NOD. I would pay them as an attorney or legal representative. I want to have confidence that I read WARMS correctly before I make a move. How deflating this feeling is, that this will never be "over". I will have to punch, kick, scratch and claw just to keep what I have, or to correct what I should have received. I hope I still have that resiliency. But, that battle is down the road. For now, I should be concentrating on tracking down my back pay. I assume that I must start a new topic to address that. Thanks again for your support. Please forgive me if I am not typing these replies in the right place. I spent most of my career in the Combat Arms. I am not a real literate computer-kind-of-guy.

[Hoppy]

IRISH-7

I am having trouble pasting a response into this thread. I will post this and try to finish the post using the edit feature. It would not let me paste into the edit frame. I will finish this post when the board starts working again. I got it to work by using the paste feature on the browser rather than right click.

From a VA training manual 1. How is IVDS rated?

a. IVDS that is primarily disabling because of periods of acute symptoms that require bed rest according to the cumulative amount of time over the course of a year that the patient is incapacitated, i.e., requires bed rest and treatment by a physician, is evaluated at 60 percent if there are incapacitating episodes of at least six weeks total duration during the past 12 months; at 40 percent if there are incapacitating episodes of at least four but less than six weeks total duration during the past 12 months; at 20 percent if there are incapacitating episodes of at least two but less than four weeks total duration during the past 12 months; and at 10 percent if there are incapacitating episodes of at least one but less than two weeks total duration during the past 12 months.

What was the code you were rated under was it for IVDS? Maybe the used the wrong code for 2010.

You stated you were treated in 2011. However, you did not mention bed rest was prescribed in 2011.

Several years ago I did a lot of research on the bed rest issue and found very little. I do all my research by reading BVA cases. WARMS will not tell you how the laws are interpreted. The BVA decisions include a summary of the medical evidence and the application of the laws. If you talk to an attorney, you need to find out if the “pendency of the claim” issue could have affected your claim for 60% for 2010. When doing my BVA research, I only found one claim that was awarded 60% using the bed rest criteria.. I found tons that were denied because there was no prescribed bed rest. The claim that was awarded was for a VA clinician (MD) who kept a log of days missed from work and he wrote a prescription for himself for bed rest to cover the days he missed work.

A veteran who posted on hadit asked his VA primary care doctor for a prescription for bed rest and the doctor told him that the bed rest was not part of the treatment for a back condition. It would not surprise me if there are VA clinicians who make up excuses not to write bed rest prescriptions because they are anti compensation doctors.

http://en.wikipedia.org/wiki/Bed_rest

Bed rest is commonly prescribed in the following cases.

For sufferers of acute pain in the spine or joints; for example, in the case of backache the unloading of the corresponding spinal segment decreases the intradiscal pressure, and it would bring relief in cases such as compression of spinal nerve. The prescribed duration of bed rest vary and opinions differ.

There was another veteran on hadit who wrestled with the bed rest issue.

He got letters from his doctor saying that he had been placed on bed rest in excess of six weeks during the last year. A DRO challenged the doctor’s assessment. The DRO wanted a more detailed explanation of the bed rest. The DRO told the veteran that he did not believe that he went an entire six-week period without getting out of bed. The DRO’s definition of bed rest was a requirement that you could not get out of bed at all. This DRO could be an idiot. The problem is that his decision to delay the claim or worse yet someone at the BVA might agree with them. I guess this DRO did not know the difference between bed rest and strict bed rest. Maybe the DRO just makes up requirements that are not beneficial to claims.

http://medical-dicti...ry.com/bed+rest

bed rest

restriction of a patient's activities, either partially or completely. A person on strict bed rest must remain in bed at all times. Many patients are placed on bed rest with bathroom privileges and are permitted to ambulate to a toilet in the bathroom.

Edited March 26, 2012 by Hoppy