Advice on requesting and increase please.

[MOS13FOXTROT]

Thanks in advance and also for having this forum.

I have an overall rating of 80%. 70% for PTSD and 20% for a Degenerative Disc Disease and numbness in my right arm.

I have the DDD rating from my ETS date in 2006 and my MRI from then only showed an issue in one disc C5-6.

Recently my symptoms from the neck injury worsened and after a visit with my PA she ordered a new MRI which showed severe issues in almost every disc in my cervical and a minor issue in my T-1 disc now.

MRI results available if it would help.

My question is based on the added problems is it likely they can be linked to the original cervical injury and if so would a rate increase be worth the risk?

Thanks much, AL

[Vync]

Welcome to Hadit!

Yes, it is possible to request an increase, but you will need to have evidence showing your condition worsened to the next higher rating criteria %. My response is a bit lengthy, but it may help make you aware of additional options. I hope this is beneficial.

First, remember that to increase your combined rating % (and your monthly disability payment), your  would need the individual disability rating %'s to go through the VA rating calculator and come out to at least 85% combined, which would round up to 90% or more.

When you have a higher rating like 70%, getting to each higher 10% level becomes progressively difficult. This can happen by requesting a rating increase for an existing disability or by filing for additional claims for new or secondary disabilities.

 

If your 20% rating was based on IVDS, to qualify for 40% or 60%, you would simply need to meet one of the following shown below.

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

 

If your 20% rating was not due to IVDS, I recommend the following approach:

1. Get your award letter for your current rating so you can see how they justified the initial rating. Knowing the details of your starting point is important.

You should also find/request a copy of your C&P exam findings from back then along with all the medical records used as evidence for your SC decision. This might be important, will explain later.

For cervical ratings, there are three ways you could have received your 20% rating. Keep in mind there are a bunch of OR's in the 20% criteria. Because of this, if you meet just one criteria, you would qualify for that %. As info, "lordosis" and "kyphosis" involve spinal curvature.
 

20% criteria

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 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
 

2. Get your medical records from the last 12 calendar months. This is important because if you qualified for a higher rating six months ago, it could change the effective date of the increase.

3. Compare your recent medical records to the spine rating criteria (see the table and diagram below). Again, an OR is present, so you have two ways to qualify for 30% or 40% cervical ratings. The VA does not rate the spine by the # of messed up vertebral levels, so 30% and 40% criteria are based only on reduced ROM or "ankylosis", which is a stiffness of a joint due to abnormal adhesion and rigidity of the bones of the joint. "Unfavorable ankylosis" means your spine is pretty much stuck in an unnatural position. "Favorable ankylosis" means the opposite.

 

30% criteria

Forward flexion of the cervical spine 15 degrees or less;

or, favorable ankylosis of the entire cervical spine

 

40% criteria

Unfavorable ankylosis of the entire cervical spine;

 

When looking at your recent medical records,specifically focus on finding any notes from above regarding forward flexion ROM or "ankylosis". Details of "ankylosis" may be on your MRI report and/or the actual doctor's examination notes. If it is on either, then you should be ok, but it must be for the entire cervical spine, not just a couple of vertebrae levels.

 

4. Disabilities secondary to your cervical DDD

You may not be aware of this at all. When the VA deemed you SC for cervical DDD, they were supposed to determine if it also caused any secondary disabilities. These are often overlooked by VA C&P examiners, which is why I asked you to go back and review your original C&P exam and the medical records used for SC approval from back then.

Check for any indications in your original exam/records and also your recent medical records for indications of these potential disabilities.

Here are some example common secondary disabilities below. For rating criteria of each, click the link below to 4.71 and then scroll to the top and search for each condition. I did include the radiculopathy rating info at the end.

Radiculopathy
This involves nerve problems in each upper extremity (arm) and/or lower extremity (leg). in the case of DDD, something has gone wrong and is pressing against your nerve roots causing the problems. The ratings for these are a bit tricky to read. Some are for the whole arm and others are for various parts of the arm from the shoulder all the way to the tips of your fingers

You didn't mention having a separate % for the numbness you experience. I included the rating criteria a bit further below and it is somewhat tricky to read. I'm not going to go into too much detail about them because they require a doctor to identify the specific latin-named body part/nerve and indicate severity.

Migraines
Some veterans experience a neck injury and suffer from migraines from that point on.

Disabilities caused my side effects of medication used to treat SC disabilities
When receiving prescription medication, most folks throw away the paper inserts that come with them. This comes with a lot of details about the drug, but the most important is side effects. You can look up each medication online to find side effects.

 

1. Gastrointestinal, like GERD, constipation, or the runs. These tend to be common side effects of NSAIDs, like ibuprofen, naproxen, etc...

2. ED. Some pain meds like opiates can cause problems in the bedroom. ED ratings are not calculated as a %, but are considered an SMC-K award, which is just a bit over $100 extra in your monthly compensation.

 

Let's assume you potentially qualify for a secondary now. The obvious example would be radiculopathy via the numbness. You can go ahead and file a new secondary claim for it. You'll need the medical records and such. It would help if your doctor would fill out a disability questionnaire (DBQ). Secondary claims are new claims, but the main difference is instead of needing proof it was caused by military service, you instead need proof it was caused by an SC disability. It would help even more if your doc could write a strongly worded medical opinion/nexus indicating how it was caused by your cervical spine disability. If you get your medical treatment from a VA doc, they may be hesitant to do this and say it has to be done by the C&P doc. Some are nice enough to do it, but not many do. If they reject your request, ask them if they would consider just filling out the DBQ instead, perhaps at your next appointment if they are short on time.

By checking the documents from 2006, you can see if the VA overlooked rating secondaries initially. Let's assume they overlooked it and you decided to go ahead and file a claim for it now (see previous paragraph). In your request, state that it was in the medical evidence and/or from C&P exam findings from 2006, but never SC. Ask if you are granted SC for the secondary disability for an earlier effective date going back to the effective dates of your original decision.

Another avenue would be to try for a Clear and Unmistakeable Error (CUE) claim, but that is a separate topic entirely and has a very steep set of requirements. Just look CUE on Hadit if you want to familiarize yourself.

 

5. Individual Unemployability (IU) and Totally Disabled Individual Unemployability (TDIU)

Because you have a single 70% rating, this potentially can qualify you for IU or TDIU, which would pay you at 100% IF you ARE NOT gainfully employed due to your SC disabilities.

Here is the VA's link with their details:

https://www.benefits.va.gov/COMPENSATION/claims-special-individual_unemployability.asp

Here is a link with more actual great info (because the VA tends to screw up these requests):

https://www.disabledveterans.org/2010/09/20/top-5-individual-unemployability-misconceptions/

 

Additionally, if you ARE NOT gainfully employed due to your SC disabilities, you might consider exploring SSDI via the Social Security Administration. It is a different application process. It is good to be aware of all of your options.

Good luck!

 

 

4.71a   Schedule of ratings—musculoskeletal system.

Quote

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 (whther 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.

 

 

 

Quote

Diseases of the Peripheral Nerves

Schedule of ratings	Rating
	Major	Minor
The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor.
Upper radicular group (fifth and sixth cervicals)
8510   Paralysis of:
Complete; all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected	70	60
Incomplete:
Severe	50	40
Moderate	40	30
Mild	20	20
8610   Neuritis.
8710   Neuralgia.
Middle radicular group
8511   Paralysis of:
Complete; adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist lost or severely affected	70	60
Incomplete:
Severe	50	40
Moderate	40	30
Mild	20	20
8611   Neuritis.
8711   Neuralgia.
Lower radicular group
8512   Paralysis of:
Complete; all intrinsic muscles of hand, and some or all of flexors of wrist and fingers, paralyzed (substantial loss of use of hand)	70	60
Incomplete:
Severe	50	40
Moderate	40	30
Mild	20	20
8612   Neuritis.
8712   Neuralgia.
All radicular groups
8513   Paralysis of:
Complete	90	80
Incomplete:
Severe	70	60
Moderate	40	30
Mild	20	20
8613   Neuritis.
8713   Neuralgia.
The musculospiral nerve (radial nerve)
8514   Paralysis of:
Complete; drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; can not extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity	70	60
Incomplete:
Severe	50	40
Moderate	30	20
Mild	20	20
8614   Neuritis.
8714   Neuralgia.
Note: Lesions involving only “dissociation of extensor communis digitorum” and “paralysis below the extensor communis digitorum,” will not exceed the moderate rating under code 8514.
The median nerve
8515   Paralysis of:
Complete; the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances	70	60
Incomplete:
Severe	50	40
Moderate	30	20
Mild	10	10
8615   Neuritis.
8715   Neuralgia.
The ulnar nerve
8516   Paralysis of:
Complete; the “griffin claw” deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened	60	50
Incomplete:
Severe	40	30
Moderate	30	20
Mild	10	10
8616   Neuritis.
8716   Neuralgia.
Musculocutaneous nerve
8517   Paralysis of:
Complete; weakness but not loss of flexion of elbow and supination of forearm	30	20
Incomplete:
Severe	20	20
Moderate	10	10
Mild	0	0
8617   Neuritis.
8717   Neuralgia.
Circumflex nerve
8518   Paralysis of:
Complete; abduction of arm is impossible, outward rotation is weakened; muscles supplied are deltoid and teres minor	50	40
Incomplete:
Severe	30	20
Moderate	10	10
Mild	0	0
8618   Neuritis.
8718   Neuralgia.
Long thoracic nerve
8519   Paralysis of:
Complete; inability to raise arm above shoulder level, winged scapula deformity	30	20
Incomplete:
Severe	20	20
Moderate	10	10
Mild	0	0
Note: Not to be combined with lost motion above shoulder level.
8619   Neuritis.
8719   Neuralgia.
Note: Combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings.

	Rating
Sciatic nerve
8520   Paralysis of:
Complete; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost	80
Incomplete:
Severe, with marked muscular atrophy	60
Moderately severe	40
Moderate	20
Mild	10
8620   Neuritis.
8720   Neuralgia.
External popliteal nerve (common peroneal)
8521   Paralysis of:
Complete; foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes	40
Incomplete:
Severe	30
Moderate	20
Mild	10
8621   Neuritis.
8721   Neuralgia.
Musculocutaneous nerve (superficial peroneal)
8522   Paralysis of:
Complete; eversion of foot weakened	30
Incomplete:
Severe	20
Moderate	10
Mild	0
8622   Neuritis.
8722   Neuralgia.
Anterior tibial nerve (deep peroneal)
8523   Paralysis of:
Complete; dorsal flexion of foot lost	30
Incomplete:
Severe	20
Moderate	10
Mild	0
8623   Neuritis.
8723   Neuralgia.
Internal popliteal nerve (tibial)
8524   Paralysis of:
Complete; plantar flexion lost, frank adduction of foot impossible, flexion and separation of toes abolished; no muscle in sole can move; in lesions of the nerve high in popliteal fossa, plantar flexion of foot is lost	40
Incomplete:
Severe	30
Moderate	20
Mild	10
8624   Neuritis.
8724   Neuralgia.
Posterior tibial nerve
8525   Paralysis of:
Complete; paralysis of all muscles of sole of foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired	30
Incomplete:
Severe	20
Moderate	10
Mild	10
8625   Neuritis.
8725   Neuralgia.
Anterior crural nerve (femoral)
8526   Paralysis of:
Complete; paralysis of quadriceps extensor muscles	40
Incomplete:
Severe	30
Moderate	20
Mild	10
8626   Neuritis.
8726   Neuralgia.
Internal saphenous nerve
8527   Paralysis of:
Severe to complete	10
Mild to moderate	0
8627   Neuritis.
8727   Neuralgia.
Obturator nerve
8528   Paralysis of:
Severe to complete	10
Mild or moderate	0
8628   Neuritis.
8728   Neuralgia.
External cutaneous nerve of thigh
8529   Paralysis of:
Severe to complete	10
Mild or moderate	0
8629   Neuritis.
8729   Neuralgia.
Ilio-inguinal nerve
8530   Paralysis of:
Severe to complete	10
Mild or moderate	0
8630   Neuritis.
8730   Neuralgia.
8540   Soft-tissue sarcoma (of neurogenic origin)	100
Note: The 100 percent rating will be continued for 6 months following the cessation of surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. At this point, if there has been no local recurrence or metastases, the rating will be made on residuals.

 

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[Carl the Engineer]

What he said ^^^^^^^^^,

Vync,

I think you nailed it,

Hamslice

 

[Buck52]

Great information from Vync, check all the links he put on here  very good Information.

[MOS13FOXTROT]

Wow. That was above and beyond, Sir. Thank you.

I never had a C&P exam for my spine issue. I had one concerning the PTSD but the DDD process amounted to an MRI in Dallas and other than the MRI tech I never spoke to a Dr. for the VA.

I was rated for 10% for the DDD and 10% for the numbness (radiculopathy?) I didn't understand the difference so I'm guessing the 10% standard was based just on that MRI report?

Now I am having similar but not as extreme issues with my left arm as well.

Very detailed information and I'm thinking I will move forward with this just based on the lack of a C&P exam for the original claim. 

 

Thank you again! more than good information!

 

Al

[MOS13FOXTROT]

Also it was pointed out to me that the new MRI shows an affect on my T-1 vertebra as well as the old injury in the cervical spine. I was advised that the thoracic injury may, if connected to the old injury, be considered for an additional injury?

Is that possible in our opinion?

Thanks so much.