Thad

Newbie response (since I'm waiting for my own IVDS ROM-based ratings): Your cervical total ROM seems to be 291, which rates at 10% ("combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees"), but I don't know how much they'll add for the neurological impact.

I'm very much a newbie, and may be misunderstanding, but thought that a recon doesn't stop the 1-yr clock for NOD. So if I read you right, you disagree with two 3/16/09 ratings, and haven't gotten any new rating decision back on either since then. To me, I thought that means you better get two NODs in before 3/16/10. Waiting for a recon decision might delay you past the 1-yr point from original rating; do you then have recourse if there is no response to the recon request? I guess the question in my mind is whether a refusal to rerate on a recon is treated as a new rating that starts a new one-yr NOD clock, or if it leaves the original 1-yr clock intact. Also, you might attack the failure to follow DeLuca guidelines on repetitive/flareup loss of ROM and see if that gets you a lower-ROM, higher-SC%.

Thanks, Berta -- yes, that's almost word for word. I assumed that this was part of their deny-at-first approach, and so my reconsideration tried to very strongly rebut that statement of theirs and their omission of relevant SMRs. If nothing else, I thought that the new documentation might help if the reconsideration doesn't work, and it has to be laid out in front of a DRO reviewer. I'm inexperienced, since this was my first rating decision and now my first reconsideration request, but your thoughts on benefit of the doubt matched mine.

Yes it does sound like the main points. Are you going to argue for a DeLuca increase based on flareups or on repetitive use? I think I'd add a paragraph on what your current pain/mobility symptoms are and how they are are affected by flareups or by repetitive use. Maybe point out if the C&P exam dr failed to ask you about additional loss of ROM on flareups or on repetitive use. Then explain why you think the previous ROMs more accurately capture the "additional functional loss" than the C&P exam by itself, and finally ask that the DeLuca guidelines be applied. Luck! Thad

Filed my own reconsideration request, just a couple of weeks ago (rating decision was Nov '09), probably will file NOD later in '10 if RR doesn't work. Considered a VSO, but the local one I knew about seemed uninterested, and there was LOTS of stuff to organize and cross-reference, so I did it myself. If it gets to the time to file a NOD, I may go back and ask the VSO again if they'd like to help or review.

Sorry I missed that the C&P was already over. FWIW, adding those words to the Recon is what I did, going so far as saying in the Recon that baseline ROM of AAA qualified for BBB %SC, but that applying the DeLuca guideline for decrease in ROM on flareup to only CCC degrees would qualify for a DDD %SC, and asking for that. Could use the old SMR ROM #'s or a private ROM rating that is more favorable. GAO DeLuca report on how few C&P exams/decisions really satisfy the DeLuca guidelines. VA FAST letter on DeLuca I think I asked that reconsideration "ratings should include the 38 C.F.R. § 4.40 and DeLuca guidelines’ on additional functional loss (the degree of additional range-of-motion lost due to pain during repetitive use or during flare-ups)." Folks more experienced than me may give better guidance; all I can do is let you know in a few months (or years) how that turns out.

>You've got to be kidding! Your Dr.'s opinion was thrown out because it didn't agree with the C&P examiner's opinion? And they say that the claims process is non-adversarial. I wonder if the fact that my Dr. is a VA specialist will hold more weight. My private IMO doc was previous military, board certified orthopedic surgeon, military journal reviewer, etc, etc. To make matters worse, the VA decision also said that his IMO was disqualified since he'd referred to on-duty decline over 3 or 4 in-service visits, but that "wasn't supported by the SMRs" where they said they only saw 1 visit. So my reconsideration sends all the SMRs my doc referred to, with all the incidents highlighted that they "didn't see." What I really wanted to tell them was that since they think that a poor review of the SMRs is disqualifying, that they should disqualify their own C&P dr and rating team who ignored the visits that were clearly in the SMRs.

Different condition for me, but my C&P examiner said it would be "mere speculation" on his part to conclude that my left knee was associated with my right knee SC. Then the rating decision said that my private doc's IMO which said that left knee "was" SC had to be eliminated, since it did not agree with the C&P examiner's statement that such a conclusion would be "mere speculation." I've sent in more documentation and SMRs for a reconsideration and am waiting to hear back, but JMHO: Assume that this is something that you want or need to overcome; might be better to submit more now rather than wait till after an unfavorable rating decision is sent. I'll look forward to hearing what others will say. That VA attitude sure doesn't seem to represent the benefit of the doubt between 2 docs one of whom says they can conclude and one of whom says they can't, but I hoped to avoid having to go to appeal where the private doc's IMO might get more respect.

Just a thought: DeLuca guidelines say that there is "typical" ROM, but then sometimes a "reduced" ROM caused either by flare-ups or repetitive use, and that the C&P exam (and rating decision) is required to address both (degraded ROM due to flare-ups and/or repetitive). If it were me, I'd consider taking copies of the SMRs that show the worst ROM and emphasize to the C&P doc that that's how bad it often gets, even if today's non-flareup ROM is a little better than that. Perhaps even send a sworn statement to that effect, specifically quoting the SMR ROM #'s (and associated schedular SC %) and asking that the DeLuca guidelines be applied, and that the most favorable (least ROM) flareup #'s be used. Best of luck, Thad

You're welcome -- luck to you too! May be different if you leave service with a disability %, but JMHO from trying to get the % now: Since you're still in-service: records, records, records. 1) Make sure the SMRs keep mentioning what's chronic or ongoing or unchanged. VA finds it easy to say that (after years of) in-service complaints, the conditions stopped being mentioned, so they must have been transitory. 2) Make sure that your separation physical lists it ALL. Thad

The same restoration % applies to everyone for the current year we are getting CRDP, not based on when you retired or were SC'd. While the restoration rate is less than 100%, it just saves them (costs us) money by not giving us 100% of the offset back as CRDP. What you get back each month is (100% of BaseTableAmt) + (Restoration% * (VA amount - BaseTableAmt)). So each year as Restoration % grows closer to 100%, we each get closer and closer to getting all of the VA amount back as CRDP. Also, this assumes you are not rated unemployable or 100%, since then the restoration % is automatically 100% and you would get the full VA amount back as CRDP. My sidebar shows I'm actually only 30% SC now, so I don't (yet) qualify for CRDP. But I hope changes in the rating decision will push me to at/over 50% SC so I can start getting the CRDP.

LILS, I should have also said that the VA $ is simple: it comes, and it's taxfree. The CRDP is more complicated because they (DFAS) start by subtracting off the VA $ from your retired pay as an offset, but then they credit most of it back (if you're 100%-SC) as CRDP. Whatever total finally comes in the retired pay is taxable. Thad

So if not combat-related, then CRSC probably doesn't apply, and CRDP would (that's what I get). Calculations are a little ugly: "Payments are determined by DFAS and will vary depending on your retired pay, disability percentage, dependents, and more. These slides are offered strictly as a tool for retirees to make an educated decision about their benefits." So read: crsc and crdp and Slideshow on calcs Best to you, Thad

My 2 cents is to be aware that, despite getting another set of ROM #'s done, the VA rating decision may use the Waddell scores to say that the disability and the ROM #'s are unreliable. Google "Waddell tests" and you see that the tests are used to indicate that the patient's verbal replies or behaviors don't correlate with what the testers "expect" from the patient's physical/nervous situation. In other words, that the patient may be faking or that the pain may be psychological. Now that's not what Waddell said the tests were supposed to be used for, but that's what workers comp and so on are sometimes using them for. One thought from this forum that really helped me was to look at the VA's denial reason(s), and make sure that you produced documentation that covered that SPECIFIC point -- here, whether the vet could be faking or exaggerating their symptoms. If possible, you might consider getting a retest of the Waddell signs from a private doctor (where more or all are negative), or submitting an explanation as to why the positive signs are reasonable IN THIS SITUATION. I'm finding it hard enough to walk my own ROM-based spine stuff thru, without the complications of positive Waddell signs. I don't have decades of VA experience, but JMHO, and hoping the vet gets what they really deserve, despite the difficulty of doing it thru the VA!

Don't know if this is similar: I had my C&P exam done at the Denver VAMC; the (med records) Release of Information office at the VAMC said it would take several months to be written up. When I requested the complete C&P exam records two months later, the VAMC would only release the xray results, but not the dr's report, saying only the VARO could release that. I kept asking every so often and they kept saying it was not releasable. One day (more than 4 months post-exam) they finally said the C&P exam could be released -- it turned out that the VARO had just mailed the rating decision, and magically the VAMC could now release the C&P exam dr's report.

James, Sorry, I was trying to keep the post short, and only ask about what hadn't been answered in http://www.hadit.com/forums/index.php?showtopic=33211 One reconsideration example is VA denying left knee but SC'g the right knee (both post-TKR). Deferred IVDS is "InterVertebral Disk Syndrome": VA's name for degenerative spine problems. Thanks again, Thad

Very helpful, James! I just got the original rating letter a month ago, and am trying to see exactly what I can pull together in the way of new evidence on some of the denied issues, but definitely will not wait long. I like your idea of "production points" and getting the deferred stuff settled first if possible. That would also help if the deferred IVDS is SC'd and helps support showing DDD/DJD in other body areas. Thanks, Thad

Would anyone know about this? I'm considering either a NOD or a "Request for reconsideration" on what was denied on an original claim, but the VA still has other conditions like IVDS listed as "deferred" in their initial award letter. No evidence that they're taking any actions at all on what was deferred. 1) Can I (should I?) NOD/RFR on what was awarded, or does that mess up what is deferred? 2) Is there a way during NOD/RFR to say "just decide the IVDS on what you have"? Thanks, as always I appreciate the experience of those who've walked the path before. Steve

VAF, you're right and I'm wrong. I was using the shorter example on pg 66 "my intent file and informal claim for PTSD under 35 CFR..." and I wrongly assumed that I could skip the "for PTSD" words. Oh well, life goes on... Berta, thanks for encouraging using several approaches for SC, I'll try that. I'll find and add the rating decision text later. Any thoughts on: 2) About either a NOD or a "Request for reconsideration" -- Do both allow you to send in new statements, IMOs, etc for VA to use during that followup process? -- Can both approaches be done while VA still has other (IVDS) conditions "deferred"? Thanks, Thad

I appreciate all your thoughts on this. -- Yes, the rating decision awarded SC@30% for the right knee and SC@0% for the flatfeet -- There were 2 both-knee-related IMOs, both said they HAD looked at the SMRs/SPRs before concluding service connection and both gave their nexus logic; C&P dr just said any such conclusion would have to be conjecture; rating decision said that if the C&P dr thought it would be conjecture then IMOs couldn't conclude differently (blowing off IMO-writers opinions; board certifications; military medical journal reviewer status; etc). -- "denials tell you what you need to get a claim approved": I will add this approach, arguing against their main point that the left knee problem was not continuous, as well as using Hoppy's approach of IMOs that (more clearly) tie the left to the right knee & feet -- "forget the "informal claim" that you originally sent": then the book author's example letter was just plain wrong, but I can live with losing the earlier date if I have to 1) Would it be possible go the "presumptive" route -- to argue that (osteo)arthritis was shown present in several body parts during service, and so the left knee (getting to the needs-surgery point only post-service) is still SC? I don't know whether presumptive is harder than direct or secondary. 2) About either a NOD or a "Request for reconsideration" -- Do both allow you to send in new statements, IMOs, etc for VA to use during that followup process? -- Can both approaches be done while VA still has other (IVDS) conditions "deferred"? Thanks again for your experience and suggestions! Thad

Thanks, Hoppy, appreciate your thoughts -- I'll work on them while I dig for other records and words. Thad

I don't know how to go now: NOD vs appeal vs hearing vs CUE vs whatever, for the following problems: 1) When is an informal claim not a claim? 2) How better to connect left knee to right knee & flatfeet? 3) Conditions that VA deferred? What would you suggest as an approach to resolving these issues, and should I try to correct just 1) and 2) related to the current award, or go after 3) at the same time? Does sending in new information help or can I only do that based on which appeal route I go? Seems like what I want them to ask them to do is to use all the SMRs and IMOs provided, instead of blowing them off. Have been DITY so far (not working with a VSO, local one didn't seem too interested). Sorry for the long post: dind't want to ask 3 separate questions in case what to do altogether was different than if there was only one issue. MANY thanks, Thad ----------------------------------------- 1) When is an informal claim not a claim? In Jul 2008 I sent in a short, two-sentence form 21-4138 saying that it was an "informal" claim per 38CFR3.155 requesting "service-connected disability compensation", without listing any specific body parts or conditions, and said that I was collecting and would submit the needed records and evidence. It pretty much matched one of the short examples in the "Vet's Survival Guide" book. VA replied referring to my "application for benefits" and my "application for compensation" and told me to complete a form 21-526. They received the formal claim (within 12 months) on 5/27/2009; their award letter 6 months later uses that formal claim date as the effective date, saying "Your previous form 21-4138 filed 7/3/2008 did not specifically list your claims and does not constitute an informal claim for benefits. 38 CFR 3.155 states that any such informal claim must identify the benefit sought...your attempt did not name which compensation and disability benefits were being sought." Getting the extra year is important, since it includes 6 months of 100% post-hospitalization time. ----------------------------------------- 2) How better to connect left knee to right knee & flatfeet? They awarded 30% right knee (osteoarthritis, post-TKR) and 0% bilateral pes planus as direct service-connected based on SMRs, but denied left knee (osteoarthritis, post-TKR). I documented 5 during-service bilateral knee pain visits (for which orthotics were repeatedly prescribed). Reason VA cited was that only right knee needed surgeries during service and left knee was never formally diagnosed with osteo during service. In addition to general words about parachuting and knees and whole-body-effect of osteo, I had 2 IMOs from post-service ortho dr and from podiatrist both stating that knees were service-connected. VA said those opinions looked at SMRs but not service x-rays and were just conjecture; C&P exam dr said he had no service x-rays so any conclusion would be conjecture, and that the left osteo could have just hit post-service. I thought the original IMOs were clear enough or would get the benefit of reasonable doubt in the vets favor, but the VA decision says the IMOs conclusion of SC is not in agreement with the C&P opinion that concluding SC would be conjecture. It would be possible to ask both ortho and podiatrist to write new IMOs specifically connecting left knee to right knee and flatfeet, now that those are SC (going secondary instead of direct SC?). Getting the left knee is important, since it would put me at 60% total with the bilateral. ----------------------------------------- 3) Conditions that they deferred? I also claimed cervical and thoracolumbar IVDS, and VA just says that decision is deferred "for further development" and "because we need additional evidence". I sent in SMR/CMRs on that and a third "is service-connected" IMO. The C&P dr didn't seem to know what IVDS stood for, and would only do the thoracolumbar ROM (then didn't record it in his notes). I had already sent in both ROM testing from a civilian dr certifying that they had used the mil/VA ROM testing guidelines. I think VA has enough to go on, and just want them to issue a decision using what's already there.

Thanks, Jay and Pete -- it seems it could be so simple, until it isn't. Fingers crossed for all who are waiting...

Thanks, Larry and Sharon -- appreciate it, getting even a ballpark is better than clueless.

Thanks, Larry -- posted my IRIS reply as a new topic to not hijack this one.