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MrStryker

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About MrStryker

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  1. Multiple precedential decisions have impacted the application of 38 CFR 4.59. Refer to the table below for a listing of impactful precedential court holdings, a brief description of the impact, and the applicability date (date of decision) for each. More detailed explanations for each holding and its impact on the application of 38 CFR 4.59 in claims processing can be found in M21-1, Part III, Subpart iv, 4.A.1.c-i. Holding Summary of Impact Date of Decision DeLuca v. Brown, 8 Vet.App. 202 (1995) Clarified exam requirements to assess the impact of pain on functional impairment including additional loss of motion due to pain. December 22, 1995 Burton v. Shinseki, 25 Vet.App. 1 (2011) 38 CFR 4.59 is not limited in applicability to arthritis claims. August 4, 2011 Mitchell v. Shinseki, 25 Vet.App. 32 (2011) Clarified exam requirements for assessing impact of painful motion with use and during flare-ups, and that when assigning a disability evaluation based on loss of ROM, painful motion is not considered the same as limited motion unless the pain actually causes a loss of motion. August 23, 2011 Petitti v. McDonald, 27 Vet.App. 415 (2015) 38 CFR 4.59 does not require objective evidence of painful motion for assignment of a minimal compensable evaluation for a joint. 38 CFR 4.71a, DC 5002 does require objective evidence of painful motion. October 28, 2015 Sowers v. McDonald, 27 Vet.App. 472 (2016) 38 CFR 4.59 is limited by the DC applicable to the claimant’s disability, and inapplicable to a DC that does not provide a compensable evaluation. Note: The Sowers holding influenced a subsequent policy decision to assign the minimum compensable evaluation under the corresponding DC for painful motion under 38 CFR 4.59. February 12, 2016 Note: The policy decision to assign the minimum compensable evaluation under the corresponding DC for painful motion under 38 CFR 4.59 is effective May 23, 2016. Correia v. McDonald, 28 Vet.App. 158 (2016) Clarified exam requirements for ROM testing to evaluate joint disabilities for painful motion in weight-bearing, nonweight-bearing, with active and passive motion, and in comparison to the opposite joint. Directed that pain with passive motion (even in the absence of another indication of painful motion) is sufficient to satisfy the criteria for entitlement to the minimum compensable evaluation under 38 CFR 4.59. July 5, 2016 Southall-Norman v. McDonald, 28 Vet.App. 346 (2016) 38 CFR 4.59 is not limited to DCs involving limited ROM. December 15, 2016 Reference: For more information on assignment of effective dates associated with precedential court decisions, see M21-1, Part III, Subpart iv, 5.C.7.l-q.
  2. Medical evidence used to evaluate functional impairment due to pain must account for painful motion, pain on use, and pain during flare-ups or with repeated use over a period of time. As a part of the assessment conducted in accordance with DeLuca v. Brown, 8 Vet.App. 202 (1995), the medical evidence must clearly indicate the exact degree of movement at which pain limits motion in the affected joint, and include the findings of at least three repetitions of ROM. Per Mitchell v. Shinseki, 25 Vet.App. 32 (2011), when pain is associated with movement, an examiner must opine or the medical evidence must show whether pain could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time, and if there is functional impairment found during flare-ups or with repeated use over a period of time, the examiner must provide, if feasible, the degree of additional LOM due to pain on use or during flare-ups. Per Correia v. McDonald, 28 Vet.App. 158 (2016) the joints involved must be tested for pain on both active and passive motion, and in weight-bearing and nonweight-bearing, and if possible, the ROM of the opposite, undamaged joint must be assessed for comparison. Important: If the examiner is unable to provide any of the above findings, he or she must indicate that he/she cannot determine, without resort to mere speculation, whether any of these factors cause additional functional loss, and provide the rationale for this opinion. Note: Per Jones (M.) v. Shinseki, 23 Vet.App. 382 (2010), the VA may only accept a medical examiner’s conclusion that an opinion would be speculative if the examiner has explained the basis for such an opinion, identifying what facts cannot be determined, or the basis for the opinion is otherwise apparent in VA’s review of the evidence.
  3. This may help. https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014194/M21-1-Part-III-Subpart-iv-Chapter-4-Section-A-Musculoskeletal-Conditions?query=range of motion In DeLuca v. Brown, 8 Vet.App. 202 (1995), the CAVC held that in examinations of musculoskeletal disabilities, the examiner must be asked to give an opinion on whether pain could significantly limit functional ability during flare-ups or with repeated use over a period of time. This information must be portrayed in terms of the degree of additional ROM lost due to pain on use or during flare-ups.
  4. The logical answer is the range of motion (ROM) will be measured during the C&P exam. I think you would need to make a trip to the emergency room during flare ups in order to document rom.
  5. Limitation of Motion of the Knee Code 5261: If the knee is not frozen, but is limited in extension and cannot straighten all the way, then it is rated under this code. If the leg can only straighten to within 45° of being completely straight, then it is rated 50%. If it can straighten to 30°, it is rated 40%. To 20°, it is rated 30%. To 15°, it is rated 20%, To 10°, it is rated 10%, and to 5°, it is rated 0%. Code 5260: If the knee can straighten, but cannot bend all the way, then it is rated under this code. If the knee can only bend to 15°, then it is rated 30%. If it can bend to 30°, it is rated 20%. To 45°, it is rated 10%, and anything 60° or more is rated 0%. Now if the knee can move, but cannot either bend all the way or straighten all the way, then it can be rated TWICE—once under code 5261, and once under this code 5260.
  6. MrStryker

    Caregiver appt

    You got this from Ebenefits or Myhealthevet? The caregiver program is done by the VHA (hospital) vs VBA (claims). Did your wife already do the training and did you have your home visit from the VA nurse?
  7. MrStryker

    STR's??

    I requested my c file and it shows as a claim in Ebenefits. You can ask a VSO to search VBMS or virtual VA to see if they're in your file.
  8. I did this at the Oakland VARO and got copies of my C&P exam. I also contacted my VSO and they faxed other C&P exams to me. I went to the VARO to see how the process worked. They are definitely overworked at the VARO so the VSO route or if you're represented by a law firm is the way to go to get the copies. Why we as veterans don't have access to VBMS is beyond me. If we're working our own claim we should be able to have access.
  9. Axis is no longer used as it was used in the DSM IV. The DSM V currently being used for evals.
  10. I just had my in home visit from the nurse for the dependent care. What stage of the process are you in?
  11. The Space A should really allow at minimum a spouse to travel with a 100% P&T vet.
  12. I just verified with the Ellis Clinic that indeed the $500 covers the exam as well as the letter. This is by far the best value when it comes to IME. Can't comment on how it will turn out, but most docs are charging $500 for each nexus letter.
  13. It list the symptoms but you still need the nexus. It doesn't say it's at least or more likely than not connected to your service connected PTSD. I think if that's all you're submitting it will get denied.
  14. Right on that's what I needed to know. Just didn't want to have a "gotcha" moment.
  15. I sent in my packet to the Ellis Clinic in OKC. Does the $500 include the exam and nexus letter or is the nexus a separate charge?
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