Lemuel

It will be rated on Range of Motion (limitations of) with separate ratings for objective neurological impairments or based on incapacitating episodes requiring bed rest perscribed by your doctor. To be rated on incapacitating episodes you have to be SC for IVDS Intervertrebal Disk Syndrome.

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 diseaseUnfavorable ankylosis of the entire spine100Unfavorable ankylosis of the entire thoracolumbar spine50Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine40Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine30Forward 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 kyphosis20Forward 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 height10Note (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 syndromeEvaluate 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 EpisodesWith incapacitating episodes having a total duration of at least 6 weeks during the past 12 months60With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months40With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months20With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months10Note(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.

If all they used were x-rays and they did not test your ranges of motion I would be very skeptical about this rating. All ratings for the spine require assesment and measurment of ROM.

What VASRD codes they have SC your disabilities will guide how the schedule is to be used.

unfortunately you will not get a rating based on your pain level. However, it is important to be clear with any examiner on the side effects and limitations that your medicines/treatment imposes on you.

The rating sounds low but their are many people with intense back pain that have fairly preserved ranges of motion.

Best regards,

Tyler

If you are "in remand", then you can submit new and material evidence under 38 cfr 3.156 B to reopen the claim, for any issues still under remand.  
You can not appeal a claim in remand, because its not "finally adjuticated".  Its like appealing a claim where no decision has been made, they always tell you to wait until its decided.  
You have to wait until the remand is carried out.  
Yes, I know its frustrating when VA wont comply with the judges order in remand.  Its a Stegal violation.  
If they wont comply with the remand, then you can try a writ of mandamus to compel compliance with remand.  Caution, tho.  You need to give the VARO "time" to accopmplish a remand that is supposed to be given expiditious treatement.  Of course, the courts dont define that.  And the VARO/board will say..."Gee that backlog is rough isnt it...to bad its taken 3 years for a remand, but we are working on thousands of other Veterans claims, just like you".  The court always buys that excuse.  
If you plan on filing a writ, make sure you document contacting the VARO about non compliance with remand order.  Several times.  Otherwise your writ will be denied straight out.  
Your writ will almost certainly be denied regardless, but the judge can order the VARO to "answer" the writ.  That is what you need.  If the VARO "answers" the writ, then they will usually say something just like the sentence quoted about the backlog and they are working on it.  But, this will force their hand.  

Is this motion to correct the Record Before the Agency in order or does it need some adjustments?
 
IN THE UNITED STATES COURT OF APPEALS
FOR VETERANS CLAIMS
 
Lemuel clayton bray
Appellant,
vs.
DAVID J. SHULKIN, MD
Secretary of Veterans Affairs
 
                                         Appellee,  
 
Docket 17-2990
Motion to correct the rba
 
This motion is brought under Rule 10 (b). 
There are many missing items from the RBA relevant to my claim and appeal.  While most of the items are not relevant to the NOA current issue, they are relevant to the BVA Remand and bode for causing a return to the CAVC if not obtained.  Obtaining a carefully copied new complete copy of the Medical Division OPTRs and IPTRs from the VA Records Management Center should provide most of the missing evidentiary documents and in a reasonably organized fashion not including much of the superfluous and disorganized documents in the RBA.  The rest can be obtained from the Communications Division in the VA Central Office.
Missing, specifically, but not limited to:
1.      Missing 5 months of OPTRs for Seizure Clinic visits at the West Los Angeles Medical Center that started 2 weeks from 9/17/90, reference RBA pages 3290 (page1) beginning & 3289 (page 2).
2.      Missing 6 or more months of OPTRs for Spine Clinic or Back Clinic reference RBA 2996 dated 9/12/91included in IPTRs.  Appellant has a copy of the 10/28/91 visit which is now missing from the IPTRs but dates the visits from April 1, 1991 in the copies provided by Cheyenne VARO.
3.      Neuropsychological Assessment, undated, but dated by Progress Note on RBA page 3343 as 8/16/91 in IPTRs.  Appellant has a copy of this from the hard copy of the file sent to Appellant by Cheyenne VARO.
4.      1-5-90 X-ray report of X-ray ordered on RBA page 3256.
5.      Multiple additional hard copy radiographic reports that will be in the Medical Division OPTRs and INPTRs.
6.      Denver VARO internal memos and VAOIG letters responding to the Appellant’s alleged failure in getting a DRO hearing in Cheyenne, before the closure of the 1/22/1992, in addition to The Denver VARO letter dated JUL 20, 1998, RBA pages 2626 thru 2628, claim appeal on June 19, 1995.  I have an interoffice memo provided to me by the Communications Division in the VA Central Office last year.  It is available from the same resource to the Appellee’s attorney for inclusion in the RBA as are probably many of the other missing items.  Use the Denver VARO JUL 20, 1998 letter to the VAOIG as a reference point to get the memos.
7.      Denver VARO letter of June 19, 1995 Closing the appeal of the 1/22/1992 referenced on RBA pages 2626 & 2710.
8.      The missing letters from me stating periods of unavailability for a hearing because of traveling for obligations to family and friends including the transfer to DC when the hearing hadn’t been provided while I was in Wyoming before my move to DC.  The letters are detailed on that interoffice memo provided to me by the Communications Division in the Central Office last year.
The RBA is 4529 pages long and is not in any way correlated to the 3151-page CD that I received dated 2/15/2017 which I have done considerable work on.  I may have to referenced pages from that CD as 02/15/2017 CD that I have not yet found in the RBA.  I can forward to the attorney for the Appellee via Adobe Creative Cloud or by Fax broken up for large files, as the attorney requests by phone or email, items that I have that escaped becoming paper mashie from water damage from my original copies, or from the hard copies sent to me by Cheyenne VARO in 2015 or were on the 1420-page CD provided to Attorney Ellermann for the BVA hearing. 
The items that I do not have, have been previously requested by FOIA on numerous occasions and responded to with items from the C&P file in a non-denial denial response.  “This is all of the records we have,” quoting the letter dated, February 9, 2017, (RBA page 1056) from The Records Management Center in response to my FOIA of August 11, 2016, (RBA 1399 thru 1405).  Quoting from my letter:
“I’m requesting all C&P Documentation that was not included on the CD provided to my attorney, Vanessa Ellermann via correspondence dated March 28, 2016.
There is a big gap from the time I was in Japan until 2009.  In that time I had a claim and an appeal that is either incomplete or denied that there is no documentation of on the CD.
Also, I’m attaching a previous request for Medical Division copies of Medical files to replace documents that have gone missing from my C&P file.”
The Record Management Center is under the Appellee’s jurisdiction and is not responding with the missing items from the hard copy of the pre-computerized Medical Division OPTRs and IPTRs which fall under the jurisdiction of the Director of the Medical Division which was the former position of the Secretary and has not provided a complete record of the correspondence via the U S Consulate from 1998 thru 2012 regarding attempts to get a C&P exam for pending claims and appeals.
The Appellee’s attorney may stipulate that efforts to obtain a qualified English Speaking Neuropsychological Assessment were impossible and that therefore all claims and appeals between 1998 and the present.
The RBA seems to be sufficient except for the missing response to the VAOIG by Denver VARO acknowledging the failure to give the requested hearing in the appeal of the 1/22/1992 Decision.  I have a copy of the memo (which is not in the RBA) that seems to have been used to prepare the letter I saw in my file on my last review of it in Washington, DC, sent to me by the Communications Section in the Central Office detailing the dates of my letters, dates I would be unavailable, dates of the AOs letters in the period of unavailability and dates of hearings set in the period of unavailability on those same letters.
I request the Appellee’s attorney fulfill all previously requested FOIA letters, from January 1, 1990 through the present, as required by 38 CFR 3.159, that were responded to with non-denial denials from the Medical Division or stipulate to the Appellant’s belief of what is on those documents, and radiographic films, which had incomplete reports not rejected by AOs, as required by 38 CFR 3.159 and 4.2, for failure of completeness and failure to provide etiology opinion statements, and EEG tracings which would show, if given to a second opinion professional requesting a complete report including an etiology statement form the medical history included in the Appellant’s medical file. 
By 1990 these items were produced digitally except for the hard copy OPTRs & IPTRs and should be archived somewhere for research access.  The films, that were shown to me, would have been retired after 5 years but replaceable from the digital data.  The hard copy EEG tracings are probably similarly disposed of on the Telemetry Units, but the digital video and tracings should be reproducible from archives. 
The several “abnormal” EEGs and 9/16/1990 IPTR should be sufficient to provide the Appellee’s attorney grounds for stipulations as to the similarity of what could or would be produced given the West LA VARMC was using the telemetry units for a “cutting edge” theory research that led to over a decade of wrong information regarding temporal lobe seizures being diagnosed by VA physicians as pseudo and psychogenic seizures and being passed as “clinically approved,” affecting all Americans with this particular problem.
The Appellee’s attorney can, keeping in mind my TBI residuals, rely upon my residual 126 verbal IQ and 13 plus years as a Naval Hospital Corpsman independent duty qualified and having been shown the Radiographic films by the attending physicians, being present when the EEG technician left my side to get a physician for a stat reading of an EEG by the attending physician, or being present when the ultra sound technician left my side to obtain a stat viewing by the attending physician and having noted them in writing over several years in requesting the copies of the films on the refusal of the medical division to do complete reports including etiology assessments as required by 38 CFR 3.159 and 4.2.
I will raise no objection to an Appellee’s request for an extension to 30 days of the time to respond to this request to correct the RBA.
At the same time, I request the opportunity to make further requests to correct this very lengthy and complex RBA  in the interest of getting it right the first time and not having to carry this action out further.
 
 
 
Lemuel C Bray
In Pro Se
2833 Main Street
Torrington, WY 82240-1929
lembray@gmail.com
Ph     307 316 8568
FAX 307 316 0936
 
 

I have never used a form for my 1151 claims.
As StatesideLegal says here:
http://statesidelegal.org/about-us
there is no specific 1151 form but some VSOs or vet reps might have a specific template they use.
I  always just wrote my VARO a letter stating it was a claim under auspices of 38 USC Section 1151, and then laid out the evidence, which I enclosed, and I got a proof of mailing receipt.
This is a template of my most recent 1151 claim:
"Department of Veterans Affairs                       September 20,2012
                                                           
Regional Office
130 South Elmwood Avenue
Suite 601
Buffalo, N. Y. 14202 2478                                 XC xx xxx xxx 
 
 
To whom it may concern:
 
            This is a claim filed under auspices of Section 1151, 38 USC.
 
            I request a proper rating and proper retroactive payment regarding my deceased husband's hypertensive disease, malpracticed on during his lifetime by the VA health care system. My husband is Rodney F. Simmons, deceased, date of death-October 14, 1994.
 
            The most recent VA actions regarding his death would be the Nehmer Philadelphia VARO award letter , dated January 17,2012, regarding his AO IHD,in my C file.
 
            Also the CUE claim I had pending at your VARO since 2004 was awarded by the Philadelphia VARO this past January.
 
            I have enclosed as evidence, a VA document from Dr. XXXXXXXX XXXXX, as requested by the Office of General Counsel ,dated July 24,1997 ,which includes  the following statements :
 
“As noted in his history review above ,his BP was NOT adequately treated,and this is extensively documented.”
 
“Yes, better antihypertensive treatment should have been initiated,given the evidence of both old CVA and old MI.”
 
“It is my professional opinion that it is likelier than not that this dose of pseudoephedrine
would raise his poorly controlled  BP, and did contribute to his death.”
 
“and concentric hypertrophy (consistent with inadequately treated hypertension).”
 
            I remind VA that my DIC application, to include accrued, was filed within one year after the veteran's death.
 
            Regarding the EED for this claim, I refer you to the enclosed documents and the veterans' VA  employment physical of June 1988 and the medical records subsequent to and including the heart attack Rod had on August 13, 1988,misdiagnosed by VA as a sinus infection. That specific 1151/FTCA issue (the cardiac event of 1988 etc) has been proven and resolved by the VA. And I refer you to all VA medical records and documents generated after August,1988 as well.
 
                                                      -2-
 
            I have enclosed copies of the VA's 1997 posthumous rating sheet showing the HBP as NSC and the rating given.
 
            I refer VA to 21-1MR Part IV, Subpart B,Chapter 3,Section D ,et al, for further guidance on how these types of Section 1151 claims are to be adjudicated.                                                                                      
                                                                                                 Respectfully, 
                                                                                             Berta M. Simmons
                                                                        Surviving Spouse of Rodney F Simmons
 
                                                                                                  XC XX XXX XXX 
                                                                                              (contact info redacted)
(I gave them my email and phone number, always good to put into 1151 claims)
                                                          
 
Enclosed:
Exhibit A-1 and A-2  OGC June 6th 1997  request to VACO Director Medical Services   2 pages
 
Exhibit B-1 and B-2 Response from Dr. XXXXXX XXXXXX VACO Medical Services July 24,1997 2 pages
 
Exhibit C-1 and C-2  Buffalo VARO rating sheet dated July 9, 1997 2 pages
 
Enclosures total 6 pages."
------------------------------------------------------------------------------------------------------
 They denied it at first, I filled another CUE on them within days, via email to their director and via complaint at the IRIS system, and the award was shortly thereafter, in the mail.(CUE under 38 CFR 4.6)-they ignored my medical evidence from VACO)
 But as you can tell, this all grew out of the successful FTCA case I had.
I was only  able to get the above report and medical question the OGC asked, after the settlement had been paid.
In most 1151 cases, an IMO/IME is needed to strongly confirm malpractice occurred, with a full medical rationale based on all available medical evidence, and a strong statement that the VA did not provide proper and timely  diagnosis or therapy, treatment etc, consistent with that  of the "standard and usual " medical community-meaning non VA doctors, and that those medical errors caused  the veteran's additional disabilty of   -------- . (or caused and/or contributed to  the veteran's death.)This was also my same cause of action on my SF 95.....as failure to diagnose and treat-in spite of overwheming evidence in the veteran's medical records.
 
 
 
 
 
 
           
 
 
 
 

Can you give us a link to the  May 2017 Remand  or to the Docket #?
I assume you raised the issue on appeal of the note the physician put into the file regarding a different veteran.
BVA decisions are public and hold no names or identifying information.:
https://www.index.va.gov/search/va/bva.jsp