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.

[donna68]

http://www.benefits.va.gov/warms/bookc.asp#q

The Spine

Rating

General Rating Formula for Diseases and Injuries of the Spine

(For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating

Intervertebral Disc Syndrome Based on Incapacitating Episodes):

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease

Unfavorable ankylosis of the entire spine................................................................... 100

Unfavorable ankylosis of the entire thoracolumbar spine............................................... 50

Unfavorable ankylosis of the entire cervical spine; or, forward flexion

of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of

the entire thoracolumbar spine................................................................................ 40

Forward flexion of the cervical spine 15 degrees or less; or, favorable

ankylosis of the entire cervical spine........................................................................ 30

Forward flexion of the thoracolumbar spine greater than 30 degrees but not

greater than 60 degrees; or, forward flexion of the cervical spine greater

than 15 degrees but not greater than 30 degrees; or, the combined range of

motion of the thoracolumbar spine not greater than 120 degrees; or, the

combined range of motion of the cervical spine not greater than 170 degrees;

or, muscle spasm or guarding severe enough to result in an abnormal gait

or abnormal spinal contour such as scoliosis, reversed lordosis, or

abnormal kyphosis................................................................................................. 20

Forward flexion of the thoracolumbar spine greater than 60 degrees but not

greater than 85 degrees; or, forward flexion of the cervical spine greater than

30 degrees but not greater than 40 degrees; or, combined range of motion of

the thoracolumbar spine greater than 120 degrees but not greater than 235

degrees; or, combined range of motion of the cervical spine greater than

170 degrees but not greater than 335 degrees; or, muscle spasm, guarding,

or localized tenderness not resulting in abnormal gait or abnormal spinal

contour; or, vertebral body fracture with loss of 50 percent or more of the

height..................................................................................................................... 10

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

5235 Vertebral fracture or dislocation

5236 Sacroiliac injury and weakness

5237 Lumbosacral or cervical strain

5238 Spinal stenosis

5239 Spondylolisthesis or segmental instability

5240 Ankylosing spondylitis

5241 Spinal fusion

5242 Degenerative arthritis of the spine (see also diagnostic code 5003)

5243 Intervertebral disc syndrome

Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25.

Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes

With incapacitating episodes having a total duration of at least 6 weeks during the

past 12 months................................................................................................................. 60

With incapacitating episodes having a total duration of at least 4 weeks but less than

6 weeks during the past 12 months.................................................................................... 40

With incapacitating episodes having a total duration of at least 2 weeks but less than

4 weeks during the past 12 months.................................................................................... 20

With incapacitating episodes having a total duration of at least one week but less than

2 weeks during the past 12 months.................................................................................... 10

Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.

General Rating Formula for Mental Disorders:

Total occupational and social impairment, due to such symptoms as:

gross impairment in thought processes or communication;

persistent delusions or hallucinations; grossly inappropriate

behavior; persistent danger of hurting self or others; intermittent

inability to perform activities of daily living (including maintenance

of minimal personal hygiene); disorientation to time or place; memory

loss for names of close relatives, own occupation, or own name .......................... 100

Occupational and social impairment, with deficiencies in most areas,

such as work, school, family relations, judgment, thinking, or mood,

due to such symptoms as: suicidal ideation; obsessional rituals

which interfere with routine activities; speech intermittently illogical,

obscure, or irrelevant; near-continuous panic or depression affecting

the ability to function independently, appropriately and effectively;

impaired impulse control (such as unprovoked irritability with periods

of violence); spatial disorientation; neglect of personal appearance and

hygiene; difficulty in adapting to stressful circumstances (including

work or a worklike setting); inability to establish and maintain

effective relationships ........................................................................................... 70

Occupational and social impairment with reduced reliability and

productivity due to such symptoms as: flattened affect; circumstantial,

circumlocutory, or stereotyped speech; panic attacks more than once

a week; difficulty in understanding complex commands; impairment

of short- and long-term memory (e.g., retention of only highly learned

material, forgetting to complete tasks); impaired judgment; impaired

abstract thinking; disturbances of motivation and mood; difficulty in

establishing and maintaining effective work and social relationships ........................ 50

Occupational and social impairment with occasional decrease in work

efficiency and intermittent periods of inability to perform occupational

tasks (although generally functioning satisfactorily, with routine

behavior, self-care, and conversation normal), due to such symptoms

as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or

less often), chronic sleep impairment, mild memory loss (such as

forgetting names, directions, recent events) ........................................................... 30

Occupational and social impairment due to mild or transient symptoms

which decrease work efficiency and ability to perform occupational

tasks only during periods of significant stress, or; symptoms controlled

by continuous medication ..................................................................................... 10

A mental condition has been formally diagnosed, but symptoms are not

severe enough either to interfere with occupational and social

functioning or to require continuous medication........................................................ 0

[Irish-7]

In response to Donna: I read the attached section of WARMS about a month before I filed for Service Connected Disability. Actually, it was a few days shy of my Army Retirement Exam in June 2010 (as I was coming off my 2nd period of bed rest). This information is what made me think that I would get 60% for my lumbar spine. Anyway, let me try to answer your statements from your first post in order. I separated from the Army by a normal retirement. There was no severance pay. Shoulder: I cannot lift my left arm above shoulder level. WARMS listed percentages of 30 & 40%, depending on how severe or if your dominant arms was affected (Diagnostic Codes 5301 thru 5306). Lumbar / back: So, what you are saying is that if I was awarded 60% (for IVDS) in 2010, it would have dropped to 0% if I did not have bed rest the next year? I figured that the MRI's, X-rays and 10+ years of treatment notes would be worth something beyond the incapacitation time. But, if I am understanding you correctly, that my award would have dropped to zero, then I am better off with 20 percent. I realize that there are no precedents set, but I know a few guys that were rated higher for their back than me, even though they lacked the same volume of supporting clinical notes and MRI's verifying degenerative disk disease, bulging and herniated disks. They each only had one or two disabilities, so perhaps the VA gave them a better consideration. Since I had a whole stack of conditions, to rate me high would risk breaking the unwritten rule that you don't get 100% schedular on an initial claim. (Not as a regular retirement, anyhow. I would like to think that this does not apply to severely wounded/broken veterans that were discharged by a medical review board). As far as the mental disorders go, I met the criteria for 30%, almost word for word. The C&P doctor hardly asked me about combat. I feel that the Psychiatrist and Comp & Pen General Practitioner were of the mindset to downplay or reduce my rating. They are the reason that I am worried about VA medical care. My PCM at the local VAMC seems alright. I am about to make another appointment. I thank you for your time and effort. Are you the same Donna from the VA Benefits Blog on Facebook? If you are, I am pleased that we meet again. Please say "Hello" to Richard, Ben and Wendell for me. I am lost with the new program, so I dropped out when the site went to Timeline.

[john999]

Just remember you don't have to have PTSD to get 100% for a mental condition from the VA. You can have depression, panic disorder, anxiety disorder, depression etc. You don't even have to have been in combat or in a combat zone.

[Irish-7]

Thanks, John. I did not initially believe that I had PTSD. My diagnosis was made by a counselor at a VETs Center. I did have nightmares for over 25 years. I just figured that was a "right of passage" for the Combat Infantryman. I started to experience mood swings, depression and stress related disorders in early 2006. I believe the triggers were multiple duties as Casualty Notification Officer, Casualty Assistance Officer, NCOIC of Military Funeral Honors for one of my soldiers that was KIA in Afghanistan and the intricate involvement in the services for another one of my men that committed suicide in 2009. Working the other end brought things full circle for me. I was coaxed to claim these conditions when I filed for disability. I ignored the advice of fellow veterans who told me to talk about people getting shot, dead bodies and all the gory details of battle. I felt that I had enough serious physical disabilities to be rated 100 percent. Hell, I read the criteria in WARMS and highlighted evidence of service connection in my file. During my mental evaluation of the Comp & Pen exam, the doctor controlled the conversation. I just answered his questions. He really did not talk about combat. He asked me the same questions over and over. "What made you start going to the VETs Center for counseling"? I thought, "Either this guy can't hear, or he is just plain stupid". He was dumb like a fox. He asked enough things about the positive aspects of my life to make me look fine. I think that the raters just give you 10% if you have war related decorations, like the Combat Infantryman's Badge or Combat Action Badge. Obviously, I did not receive the individual disability ratings that I expected. Now, I am second guessing not taking my friends advice. I am the only veteran that I know, that admitted anxiety issues, but was denied PTSD. I also have serious reservations about the staff in the mental health department of the VAMC. My counselor at the VETs Center was very angry that I was denied. He knew the Psychiatrist that evaluated me. They worked together for over 20 years. I get the feeling that there is some "bad blood" there. Anyway, I have the name of a different doctor in the same hospital. I set up an appointment with my Primary Care Manager today. I believe that I must go through the PCM to see specialists. I will talk to the new shrink and see what he has to offer. I won't hold back this time!

[bhoward422]

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.

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.

Do you still have your back claim on file if you do please can I get a sample if I can could you forward to [PM Member for email] because I have other issues that I have to file secondary to my back Thanks!

Edited June 12, 2013 by Tbird
Removed email address: Please do not post personal identifying information.