degenerative arthritis a little help here Please

[silverdollar22]

I went in for an increase of my back, left knee and left hip.  I was seen by a overly nice female examiner that turns out to be a nurse practitioner and the outcome of this c&p was shocking to say the least!  When we got done talking for a least a half an hour she said "oh this is only for an increase so lets take a look at your back. She never used a geinommeter or any device to measure my ROM but said to turn around and face the chair and bend over which I did to approx. 30 degree range and she said OK that's all we need. The next couple of days i read this on e-benefits  

  Is this DBQ being completed in conjunction with a VA 21-2507, C&P Examination Request? [X] Yes [ ] No ACE and Evidence Review ----------------------- Indicate method used to obtain medical information to complete this document: [X] In-person examination Evidence Review --------------- Evidence reviewed (check all that apply): [X] VA e-folder (VBMS or Virtual VA) [X] CPRS 1. Diagnosis ------------ Does the Veteran now have or has he/she ever been diagnosed with a thoracolumbar spine (back) condition? [X] Yes [ ] No Thoracolumbar Common Diagnoses: [ ] Ankylosing spondylitis [ ] Lumbosacral strain [X] Degenerative arthritis of the spine [ ] Intervertebral disc syndrome [ ] Sacroiliac injury [ ] Sacroiliac weakness [ ] Segmental instability [ ] Spinal fusion [ ] Spinal stenosis [ ] Spondylolisthesis [ ] Vertebral dislocation [ ] Vertebral fracture  Page 20 of 66 Diagnosis #1: Degenerative Disc Disease of the Lumbar Spine ICD code: M47.0 Date of diagnosis: already service connected Diagnosis #2: Lumbar radiculoapthy ICD code: M54.16 Date of diagnosis: already service connected 2. Medical history ------------------ a. Describe the history (including onset and course) of the Veteran's thoracolumbar spine (back) condition (brief summary): Since the veteran is already service connected for his condition, this exam will focus on his current status. He reports pain in his lower back that is rated a "7". He takes Hydrocodone i tab by mouth a few times per week. No surgery to his lower back. He denies that he has had steroid injections, or pain medication injections. He has lumbar radiculopathy that is constant. b. Does the Veteran report flare-ups of the thoracolumbar spine (back)? [X] Yes [ ] No If yes, document the Veteran's description of the flare-ups in his or her own words: this will occur about once per week that will last for most of the day with a pain level of a "8-9". Precipitating factors: unknown. c. Does the Veteran report having any functional loss or functional impairment of the thoracolumbar spine (back) (regardless of repetitive use)? [X] Yes [ ] No If yes, document the Veteran's description of functional loss or functional impairment in his or her own words. limited ROM of the lumbar spine is in itself a functional limitation of the lumbar spine. 3. Range of motion (ROM) and functional limitation -------------------------------------------------- a. Initial range of motion [ ] All normal [X] Abnormal or outside of normal range [ ] Unable to test (please explain) [ ] Not indicated (please explain) Forward Flexion (0 to 90): 0 to 65 degrees Extension (0 to 30): 0 to 20 degrees Page 21 of 66 Right Lateral Flexion (0 to 30): 0 to 15 degrees Left Lateral Flexion (0 to 30): 0 to 15 degrees Right Lateral Rotation (0 to 30): 0 to 20 degrees Left Lateral Rotation (0 to 30): 0 to 20 degrees If abnormal, does the range of motion itself contribute to a functional loss? [X] Yes (please explain) [ ] No If yes, please explain: limited ROM of the lumbar spine is in itself a functional limitation of the lumbar spine. Description of pain (select best response): Pain noted on exam and causes functional loss If noted on exam, which ROM exhibited pain (select all that apply)? Forward Flexion, Extension, Right Lateral Flexion, Left Lateral Flexion, Right Lateral Rotation, Left Lateral Rotation Is there evidence of pain with weight bearing? [ ] Yes [X] No Is there objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine (back)? [X] Yes [ ] No If yes, describe including location, severity and relationship to condition(s): he does have localized tenderness noted to the lumbar spine on the spinal cord and on either side of the spinal cord. b. Observed repetitive use Is the Veteran able to perform repetitive use testing with at least three repetitions? [X] Yes [ ] No Is there additional loss of function or range of motion after three repetitions? [ ] Yes [X] No c. Repeated use over time Is the Veteran being examined immediately after repetitive use over time? [ ] Yes [X] No If the examination is not being conducted immediately after repetitive use over time: [ ] The examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. [ ] The examination is medically inconsistent with the Veteran's statements describing functional loss with repetitive use over  Page 22 of 66 time. Please explain. [X] The examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Does pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time? [ ] Yes [ ] No [X] Unable to say w/o mere speculation If unable to say w/o mere speculation, please explain: There was a question on the 2507 that asks whether pain, weakness, fatigability or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over period of time. There really is no way to predict functional ability during a flare-up when it is not witnessed. This would be subjective, presumptive and speculative at best and an opinion is not feasible and cannot be rendered. d. Flare-ups Is the exam being conducted during a flare-up? [ ] Yes [X] No If the examination is not being conducted during a flare-up: [ ] The examination is medically consistent with the Veteran's statements describing functional loss during flare-ups. [ ] The examination is medically inconsistent with the Veteran's statements describing functional loss during flare-ups. Please explain. [X] The examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss d uring flare-ups. Does pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups? [ ] Yes [ ] No [X] Unable to say w/o mere speculation If unable to say w/o mere speculation, please explain: There was a question on the 2507 that asks whether pain, weakness, fatigability or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over period of time. There really is no way to predict functional ability during a flare-up when it is not witnessed. This would be subjective, presumptive and speculative at best and an opinion is not feasible and cannot be rendered. e. Guarding and muscle spasm  Page 23 of 66 Does the Veteran have guarding or muscle spasm of the thoracolumbar spine (back)? [X] Yes [ ] No Localized tenderness: [ ] None [X] Resulting in abnormal gait or abnormal spinal contour [ ] Not resulting in abnormal gait or abnormal spinal contour [ ] Unable to evaluate, describe below: Provide description and/or etiology: he walks with a slight forward bend to his back due to the pain f. Additional factors contributing to disability In addition to those addressed above, are there additional contributing factors of disability? Please select all that apply and describe: Disturbance of locomotion, Interference with sitting, Interference with standing Please describe additional contributing factors of disability: he cannot walk over 15-20 minutes at the time. He cannot sit for greater than 10-20 minutes and standing for over 15 minutes. 4. Muscle strength testing -------------------------- a. Rate strength according to the following scale: 0/5 No muscle movement 1/5 Palpable or visible muscle contraction, but no joint movement 2/5 Active movement with gravity eliminated 3/5 Active movement against gravity 4/5 Active movement against some resistance 5/5 Normal strength Hip flexion: Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Knee extension: Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Ankle plantar flexion: Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Ankle dorsiflexion: Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Page 24 of 66 Great toe extension: Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 b. Does the Veteran have muscle atrophy? [ ] Yes [X] No 5. Reflex exam -------------- Rate deep tendon reflexes (DTRs) according to the following scale: 0 Absent 1+ Hypoactive 2+ Normal 3+ Hyperactive without clonus 4+ Hyperactive with clonus Knee: Right: [ ] 0 [ ] 1+ [X] 2+ [ ] 3+ [ ] 4+ Left: [ ] 0 [ ] 1+ [X] 2+ [ ] 3+ [ ] 4+ Ankle: Right: [ ] 0 [ ] 1+ [X] 2+ [ ] 3+ [ ] 4+ Left: [ ] 0 [ ] 1+ [X] 2+ [ ] 3+ [ ] 4+ 6. Sensory exam --------------- Provide results for sensation to light touch (dermatome) testing: Upper anterior thigh (L2): Right: [X] Normal [ ] Decreased [ ] Absent Left: [X] Normal [ ] Decreased [ ] Absent Thigh/knee (L3/4): Right: [X] Normal [ ] Decreased [ ] Absent Left: [X] Normal [ ] Decreased [ ] Absent Lower leg/ankle (L4/L5/S1): Right: [X] Normal [ ] Decreased [ ] Absent Left: [X] Normal [ ] Decreased [ ] Absent Foot/toes (L5): Right: [ ] Normal [X] Decreased [ ] Absent Left: [ ] Normal [X] Decreased [ ] Absent 7. Straight leg raising test ---------------------------- Provide straight leg raising test results: Right: [ ] Negative [X] Positive [ ] Unable to perform Left: [ ] Negative [X] Positive [ ] Unable to perform Page 25 of 66 8. Radiculopathy ---------------- Does the Veteran have radicular pain or any other signs or symptoms due to radiculopathy? [X] Yes [ ] No a. Indicate symptoms' location and severity (check all that apply): Constant pain (may be excruciating at times) Right lower extremity: [ ] None [ ] Mild [X] Moderate [ ] Severe Left lower extremity: [ ] None [ ] Mild [X] Moderate [ ] Severe Intermittent pain (usually dull) Right lower extremity: [ ] None [ ] Mild [ ] Moderate [X] Severe Left lower extremity: [ ] None [ ] Mild [ ] Moderate [X] Severe Paresthesias and/or dysesthesias Right lower extremity: [ ] None [ ] Mild [X] Moderate [ ] Severe Left lower extremity: [ ] None [ ] Mild [X] Moderate [ ] Severe Numbness Right lower extremity: [ ] None [ ] Mild [X] Moderate [ ] Severe Left lower extremity: [ ] None [ ] Mild [X] Moderate [ ] Severe b. Does the Veteran have any other signs or symptoms of radiculopathy? [ ] Yes [X] No c. Indicate nerve roots involved: (check all that apply) [X] Involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve) If checked, indicate: [ ] Right [ ] Left [X] Both d. Indicate severity of radiculopathy and side affected: Right: [ ] Not affected [ ] Mild [X] Moderate [ ] Severe Left: [ ] Not affected [ ] Mild [X] Moderate [ ] Severe 9. Ankylosis ------------ Is there ankylosis of the spine? [ ] Yes [X] No 10. Other neurologic abnormalities ---------------------------------- Does the Veteran have any other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes)? [ ] Yes [X] No 11. Intervertebral disc syndrome (IVDS) and episodes requiring bed rest -----------------------------------------------------------------------  Page 26 of 66 a. Does the Veteran have IVDS of the thoracolumbar spine? [ ] Yes [X] No 12. Assistive devices --------------------- a. Does the Veteran use any assistive device(s) as a normal mode of locomotion, although occasional locomotion by other methods may be possible? [X] Yes [ ] No If yes, identify assistive device(s) used (check all that apply and indicate frequency): Assistive Device: Frequency of use: ----------------- ----------------- [X] Cane(s) [ ] Occasional [X] Regular [ ] Constant b. If the Veteran uses any assistive devices, specify the condition and identify the assistive device used for each condition: for his lower back and radicular symptoms 13. Remaining effective function of the extremities --------------------------------------------------- Due to a thoracolumbar spine (back) condition, is there functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis? (Functions of the upper extremity include grasping, manipulation, etc.; functions of the lower extremity include balance and propulsion, etc.) [X] No 14. Other pertinent physical findings, complications, conditions, signs, symptoms and scars ------------------------------------------------------------------------ a. Does the Veteran have any other pertinent physical findings, complications, conditions, signs or symptoms related to any conditions listed in the Diagnosis Section above? [ ] Yes [X] No b. Does the Veteran have any scars (surgical or otherwise) related to any conditions or to the treatment of any conditions listed in the Diagnosis Section above? [ ] Yes [X] No c. Comments, if any: No response provided  Page 27 of 66 15. Diagnostic testing ---------------------- a. Have imaging studies of the thoracolumbar spine been performed and are the results available? [X] Yes [ ] No If yes, is arthritis documented? [X] Yes [ ] No b. Does the Veteran have a thoracic vertebral fracture with loss of 50 percent or more of height? [ ] Yes [X] No c. Are there any other significant diagnostic test findings and/or results? [X] Yes [ ] No If yes, provide type of test or procedure, date and results (brief summary): MRI LUMBAR SPINE W/O (JUN 09, 2014@07:51) Report: MRI Lumbar Spine Sagittal STIR and sagittal and axial T1 weighted, T2 weighted images of the lumbosacral spine were obtained. Findings: Comparison to MRI of the lumbar spine on 8/4/11. Normal alignment of the lumbar sacral spine is visualized. Heterogenuos bone marrow signal is noted likely due to degenerative changes. L5-S1 Modic type II changes. At T12-L1, L1-2 there is disc desiccation, mild diffuse disc bulging with mild facet joint hypertrophy without significant neural foramina narrowing. Normal appearance for the patient's age. At L2 L3 there is a right paracentral and foraminal disc protrusion with extrusion and mild superior migration, producing narrowing of the right lateral recess and posterior displacement of the right L3 nerve root. Protrusion contacts and produce mild displacement of the a right L2 nerve root within the neural foramen. At L3-4 mild disc narrowing and desiccation, diffuse disc bulging without significant central spinal canal narrowing. Mild bilateral facet  Page 28 of 66 joint hypertrophy without significant neural foramen narrowing. Unchanged in comparison to prior At L4-5 there is disc narrowing, bulging and desiccation with moderate facet joint hypertrophy, ligamentum flavum hypertrophy and bilateral mild neural foramina narrowing. Unchanged in comparison to the prior. At L5-S1 severe disc narrowing and desiccation with moderate facet joint hypertrophy, ligamentum flavum hypertrophy and bilateral mild neural foramina narrowing. There is a mild degenerative retrolisthesis of L5 on S1. Unchanged in comparison to the prior. The conus medullaris ends at the lower portion of L2 body. Cauda equina demonstrated no compression. No evidence of paraspinous soft tissue abnormality. Impression: 1. L2 L3 right paracentral and foraminal disc protrusion with extrusion and mild superior migration, producing mild displacement of the right L2 nerve within the neural foramen and the right L3 nerve within the lateral recess. Please correlate clinically for right L2 and/or L3 radiculopathies. 16. Functional impact --------------------- Does the Veteran's thoracolumbar spine (back) condition impact on his or her ability to work? [X] Yes [ ] No If yes describe the impact of each of the Veteran's thoracolumbar spine (back) conditions providing one or more examples: He has pain in his lower back on a daily basis. He has missed 9 days of work over the past year due specificially to his lower back. 17. Remarks, if any: -------------------- Page 29 of 66 No medical opinion was requested for this already service connected disability.

I checked and they reduced me from 30% to 10% off of this exam!  I checked the cfr and here's what i found

The Spine

   Rating

General Rating Formula for Diseases and Injuries of the Spine

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 kyphosis20

Is it me or according to this it should be rated at at least 20% even with the bad ROM reading?

Edited September 17, 2016 by silverdollar22

[Buck52]

There are some more Regs on this Hadit Elder   broncovet is good with the Regs  maybe he can chime in.

.....................Buck

[broncovet]

I need a little more information to see if this reduction is proper.  First, how long did you have your rating?  Was it over 5 years, over 10 years, over 20 years, or less than 5 years?  This is important.  If your rating was less than 5 years, (and not P and T), then they may be able to reduce you on this exam, if it was much better than the exam they used to rate you.  In other words, if your symptoms improved from your MOST RECENT decsion.  

Did you get a reduction proposal?  If they just reduced you, without giving you a chance for a hearing, then this should be void ab initio.   The VA must do the proper procedure for a reduction, which involves giving you 60 days notice and an opportunity for a hearing to dispute the proposed reduction.  If they did not follow this, the reduction should be reversed.  

 

If you had your rating over 5 years, they should not be able to reduce you on this single exam, unless its consitent with all the other medical records.  

Here is an important regulation:

3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, § 3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

[broncovet]

Importantly, in (a), above,  is the term "under ordinary conditions of life".  What this means is if you got better from bed rest BUT DID NOT GO BACK TO WORK, they cant reduce you.  (That is, if your rating is over 5 years old and "stabalized".)  3.344 C allows VA to reduce you if you have not been rated over 5 years, that is, you have a temporary rating.  Over 5 years is key, this is permanent and you get the full benefit of the regulation cited above.  

[silverdollar22]

Hey guys here's the deal!  My initial exam for my back was in 95. Then I had an increase in 2014. Initial rating was 10% and increased to 30% in 2014. I have 6 herniated discs in my back,bad arthritis and DDD so I don't think it will get better! Here's where they got me. They raised my nerve pain in my legs from 10% each leg to 20% which I guess kept me at 80% overall. This meant that it was a reduction in my back but an increase of my legs which was a wash! Did you see where she stated that I have a abnormal gait! Wouldn't that by itself Grant me at least 20% in the CFR? I stated already that she didn't play the game right by just guessing my ROM which she put as 65 degrees which was more like 10-20 when I stopped bending! Can or should I NOD this exam? Also got denied for my hip even with my PCP writing a letter stating my hip in her opinion was more likely than not due to my auto accident while in the army! Go figure! I should get my BBS soon and find out the details.

       Thanks,

                    Eric

[silverdollar22]

Bump

[lotzaspotz]

You can challenge the exam based on her eyeballing ROM and not using the goniometer, as I believe is required.