Please Help (berta)

[david walker]

I just finished my NOD. Can you guys take a look and see what you think???? I took out the names and the dates. Please all advise is appreciated. Has anyone ever contacted their congressman for help. If so....how and what can they do???

I received a rating decision dated __. Consider this letter to be an official “Notice of Disagreement” (NOD) regarding the following disabilities:

Cervical radiculopathy left upper extremity 0% effective date of

Cervical radiculopathy right upper extremity 0% effective date of

1. I fully disagree with the 0% service connected determination for cervical radiculopathy left upper extremity and 0% cervical radiculopathy right upper extremity.

a. The most common causes of Cervical radiculopathy are herniated cervical disk, spinal stenosis and degenerative disk disease. All of which I have been diagnosed with by civilian and VA doctors. All are service connected.

b. A Nerve Conduction Study (EMG/NCV) stated: findings suggestive of chronic bilateral C6-T1 cervical radiculopathy in bilateral upper extremity. In the rating decision letter dated 1/18/06 it stated my claim of cervical radicuopathy must be considered “chronic. This test proves chronic cervical radiculopathy.

c. Family Physicians medical report dated 6-2-05 directly connects radiating pain from my neck to my elbow to my cervical neck problems.

d. A letter from chiropractor, he directly connects the radiating pain in both my arms to my cervical neck problems.

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

Title 38, Part 4.26 Bilateral factor. When a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, and 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability and M21-1MR Chapter 4 Section A b.

d. C&P exam states “she does not use a brace” this statement is now untrue, I was issued a brace from the VAMC-Asheville on 4-10-06.

2. I also disagree with the effective date of April 10, 2006. I originally filed September 8,2004.

[Berta]

I think you covered all the bases-

did you get a VCAA letter on this claim?

[david walker]

I don't know what a VCAA letter is???

[Berta]

I don't know what a VCAA letter is???

See the recent posts under VCAA and VCAA Election/Response form

[Vike17]

David,

Portions a,b, and c are irrelavant to your appeal. You stated that it has been deemed already service-coonected, so arguing these points aren't going mean really anything. As a matter of fact portion (a) you state;

"The most common causes of Cervical radiculopathy are herniated cervical disk, spinal stenosis and degenerative disk disease. All of which I have been diagnosed with by civilian and VA doctors. All are service connected"

This actually is something a doctor would need to state on your behalf. It may be general knowledge to the public, but if this was at issue, which it isn't, the VA would need something from your doctor stating YOUR radiculopathy/neuropathy is the cause of YOUR Cervical disc herniations.

You need to make the argument of why you think the your bi-lateral upper extremity radiculpopathy warrants a higher evaluation that 0%. this hinges on the documeted symptoms. Are they "mild," "moderate," "severe," or complete?

As far as the effective date, did you claim these with, I assume, your origanl claim on Sept. 8, 2004, or were these conditions noted on a C&P exam of April 10, 2006, as being secondary to yor cervical spine?? If you did specifically claim them on the original claim, but the C&P eximaner made the nexus on the C&P exam, then this would probably be the correct effective date.

Also, i noticed under portion b you stated;

"In the rating decision letter dated 1/18/06 it stated my claim of cervical radicuopathy must be considered “chronic. This test proves chronic cervical radiculopathy"

If this is the rating decision that granted the 0%, the one year appeals period is over and this decsion has become final and you cannot appeal this any more unless the has been a CUE, which it appears there hasn't been. Also I don't understand why, if the VA awarded service-connection as you stated, then why would they make such a reference as the radiculopathy must be considered "chronic." Are you sure they granted service-connection for this????

The bi-lateral factor has nothing to do with bieng issue a brace. maybe I mis-understood this portion, but the way it's presented, that's what your intenetions look like??? If you were issued a brace for your arms on April 10, 2006, does the VA know this??? if they are aware of this, then this may also have the earliest date of some sort of action which could be construed as a claim for the bi-lateral radiculopathy. Also, how could you be rated for these on Jan. 18, 2006, but have an effective date awarded as of April 10, 2006. Was there another rating decision somewhere in between that you failed to mention???

There are somethings that do not add up here. If you could give a complete and acurate synopsis of your claims ect.. It would really help to sort this out.

Vike 17

[david walker]

Vike 17, you made so good points. I talked with my VA rep after the post yesterday. I had originally filed for BLR on 1/18/06, it was deined, reason being must be chronic.

(I guess they had to rule in my favor when the NCS stated it was chronic)

When I talked to my rep he pointed out the raters had only used my NCS and C&P exam to rate me on this issue. The doc who did my C&P was not on my side. We talked about how much pain and my problems at work and he totally lied and stated in the C&P my test were negative for pain. (This really makes me angry, I will be sure they understand my pain, should I have another C&P.)

I am working now on a request to reconsider "pointing out they failed to take all my medical documentation into consideration". Also I have new documentation and waiting on the mail to get here - I have requested all my doctors info to see if there is anything in it to help me. I have medical documentation on this condition all the way back to 2003.

Thanks for the help, will post me new letter.

Edited May 8, 2007 by david walker

[Berta]

I dont know if this case can help you:

http://www.va.gov/vetapp06/files4/0629427.txt

One thing in it might---

"Thus, in order to properly evaluate the appellant's service-

connected cervical spine degenerative disc disease, the Board

must consider both the orthopedic manifestations as well as

the neurological manifestations as demonstrated by the left

and right cervical radiculopathy. While the RO appears to

have evaluated the appellant's claim based upon the lack of

incapacitating episodes, the issue of whether the appellant

is entitled to a higher disability rating based upon combined

orthopedic and neurologic manifestations was not adequately

addressed."

Would't a brace be an orthopedic manifestation?

Also- the regs changed in 2005:

"The newest rating

criteria, effective September 26, 2003, provide for rating

back disability under criteria contained in the General

Rating Formula for Diseases and Injuries of the Spine. 38

C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2005)"

This claim has lots of DCs and info and maybe there is something there that could possibly help you.

Is this a progressive disease-the radioculopathy?

Could it possible lend to SMC at some point if it progresses to loss of use of ?

I regret that I dont know much about this disability-any higher % must be supported by medical evidence.