degenerative arthritis VA Disability Proposed Rate Reduction Response

[J Ash]

I got a letter a week ago that the VA wants to reduce the rating I currently have for Degenerative Arthritis of the Spine from 20% to 10%. I have had the 20% rating for over 5 years. The disability is the result of an injury that occurred when I was in the military and is well documented. I have prepared a statement contesting the reduction, but I'd like someone to read through it to see if I could be messing anything up.  This is my first post here, so I'm not sure if this is a valid request for these forums.

 

Here is the statement I have so far. Any advice or information is appreciated.

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This statement is in response to the proposed reduction of my disability rating for thoracic spine degenerative joint disease with kyphoscoliosis from 20% to 10%.

As stated in §4.71a—Schedule of Ratings–Musculoskeletal System, The Spine, “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis” are to be rated at 20%.

The presence of kyphoscoliosis, caused by the muscle spasms and guarding which resulted from my injury, should continue to be rated at 20%, as indicated in the aforementioned Schedule of Ratings.

Additionally, my current rating of 20% for thoracic spine degenerative joint disease with kyphoscoliosis has been in effect for over five years and is thus afforded ‘Protection of 5-year stabilized ratings’ as stated in 38 CFR Part 5, § 5.171. Under this protection, the rating cannot be reduced without showing Material improvement.

For the following reasons, Material Improvement, as detailed in 38 CFR Part 5, § 5.171 (c), has not been shown:

• During the VA Examination, dated January 20, 2016, the VA examiner did not use any medical instrument to measure the combined range of motion of the thoracolumbar spine or the forward flexion of the thoracolumbar spine. Therefore, there is no evidence that the measurements taken during the VA Examination, dated November 28, 2014, represent a sustainable material improvement.

• I have discussed my incapacitating exacerbations with muscle spasms with my VA primary care doctor during every checkup and continue to receive medication to treat these episodes. There has been no sustained improvement in either the frequency or the severity of these incapacitating exacerbations and, due to recent restrictions on medications I can take (explained below), there has been an increase in the daily pain, inflammation, and muscle spasms that I experience.

• Between once and twice a month, an incapacitating exacerbation is triggered by events as common place as moving laundry from the washer into the dryer, putting a trash bag into the alley dumpster or picking up one of my kids, indicating that no improvement has been maintained under the ordinary conditions of life.

I have daily pain, inflammation, and muscle spasms that are a direct result of the disability discussed here. I also experience incapacitating episodes which occur an average of once to twice a month. During these episodes, my movement, strength, and mobility is severely limited for at least a full day. These episodes can be triggered by events as common place as moving laundry from the washer into the dryer, putting a trash bag into the alley dumpster, or picking up one of my kids.

In the past, to manage the daily aspects of my disability, my VA primary care doctor prescribed Etodolac, a nonsteroidal anti-inflammatory drug (NSAID), to minimize the inflammation and reduce muscle spasms. Within the last few years, I was diagnosed with Kidney disease and told by my VA Nephrologist that I am no longer able to take any NSAIDs. Since I have stopped taking Etodolac, my daily pain has increased making everyday tasks more difficult and increasing the number of debilitating episodes I experience.

I have also been prescribed Cyclobenzaprine, a muscle relaxant, to manage the daily aspects of my disability as well as the debilitating episodes. When taking Cyclobenzaprine I always experience drowsiness and trouble concentrating, which are documented side effects to the medication.  Because of these side effects, I am not able to take Cyclobenzaprine on a regular basis to manage the daily pain, inflammation, and muscle spasms.

 If, after the review of the information provided above, the reviewers still hold to the decision to reduce my current rating for thoracic spine degenerative joint disease with kyphoscoliosis from 20% to 10%, then I request a personal hearing.

[J Ash]

18 hours ago, broncovet said:

Whoa!  Katrina Eagle (a Well known attorney representing Veterans) had an article on reductions about 5 years ago, but its been taken down, unfortunately.  

She advised Veterans to NOT show how they meet the current rating schedule.  Instead, VA has to show "actual improvement under ordinary conditions of life".  The Veteran need not prove over and over again how he meets the current rating schedule every day, month or year.  It appears that the VA will have to try to prove CUE as your decison has become final after one year.  To prove CUE, the VA will have to prove that its undebatable.

Broncovet, thank you for the information. So based on what you said, it sounds like you are recommending that I remove the part of my statement at the beginning but leave the rest.  Basically focusing just on the fact that they have not proved "Material Improvement".

Did I understand you correctly?

[J Ash]

18 hours ago, Berta said:

This case might help explain what I mean:

http://www.va.gov/vetapp03/files/0329046.txt

 

Thank you Berta! I'm going to print this out and read through it.

[broncovet]

Yes, J Ash.  This was the gist of Attorney Katrina Eagles Advice.  She suggested you opt for the hearing in a proposed Reduction, and that you argue that you have not had "material Improvement" instead of arguing you meet the "higher rating" criteria.    You see most conditions wax and wane, so you could argue this is "episodic" improvement if that is the case.  

A very bid deal is the conditons affect on employment.  If you can not work, then its very tough for VA to show your condition improved "under ordinary conditions of life".  Example:  YOu rest up and get pain relief from resting your sore back.  This is not "material improvement" under ordinary conditions of life, since if you did go back to work, your back would flare up again.  Ditto if you find pain relief through meds or a back brace.  "Ordinary conditions of life" does not mean you take 4 Vicodin, and 4 morphine tablets and put on your back brace and you are able to make it through one work day by resting your back a half day in the bosses office.  Read what the VBM says about proposed reductions.    

Check the thoroughness of the exam they cited to reduce your rating.  Was it less thorough than the exam they used to rate you with?  Did the examiner state they reviewed your records to compare your present disability level with previous levels?  How would the examiner know what your previous disability levels are if they did not review your history?   

She also pointed out to argue you have not had "material improvement" since your last rating decision.  You see, if that rating was continued when you were last rated/or denied for another condition, the VA "admits" that they are continuing your rating, so, that means you met the criteria for the higher rating.  

She said one of the best defenses to a proposed reduction is 2 words:

PROVE IT!   

The burden is on VA to show your condition improved, and that improvement was sustained (not episodic) and that it was "under ordinary conditions of life" which means working.  This applies to a condition rated over 5 years OR P and T, as these ratings are considered "stabalized".  

Sometimes the VA grants "temporary" ratings, such as when you have surgery, and none of the above applies to a temporary rating.  If the VA "forgets" to reschedule you for an exam to terminate a temporary rating, well that is the VA's fault, not yours.  

[broncovet]

JAsh

    I went through and BOLDED some key points that Katrina made in 3.344 (above) that may be useful to you to argue at your hearing.  

Edited February 6, 2016 by broncovet

[SemperFiGeek]

Tip I learned recently: If they send you a proposal to reduce immediately request a personal hearing within 30 days and file a new claim for increase within the 60 day period following and you will get a new exam before they decided on the reduction which gives you another shot to get it right. I received a proposal to reduce on 12/9/2015 and have all new exams scheduled for next week because i filed for increase again for the conditions they wanted to reduce. It confuses the heck out of them and they have to follow the rule most favorable to the veteran.