Talked With "senior Staffer"

[71M10]

Greetings all:

This is in relation to a claim for increase for what I was told in 1988 was a "bone condition".

Filed for increase on 12/29/06 after initially trying to get into VA health system to have physical therapy for my back. They kept indicating I needed a needs test since I was 0% SC and currently I do have a decent job but High co-pays for PT :-(. And as I looked into the ratings schedule (should have years ago) I noticed that I was easily (yeah sure) SC to 20% for arthritis (on my X-rays) if you believe that if they broke it they buy it.

Received a reminder about the C&P exam I was scheduled for about 5 days before (first communication about it). Went to the exam felt good about it (2/26/07). 3/16/07 mailed in my private physicians records, Physical Therapy records, x-ray reports, and the records release they sent me, and my VCAA notice with the box checked no for waiting for more records (I just sent it all). I also asked for a copy of my current C&P exam and my complete C-file from 1988. 7 days later Battle Creek sent me a copy of my exam. I think the Doc did good by me. 25 days later Detroit sent my original rating and exam record. When they did my C&P the Doc didn't have the C-file or the C&P from 88, but the diagnosis is the same Thoracic strain and degenerative arthritis. My ROM forward (flexion) was 25 with pain and reduction on repetition, She indicated ankylosis (not complete) with segment fixed in Flexion, Dyspnea, ED, Urinary frequency, and nerve root stretching. My head posture was noted as forward due to kyphoscoliosis. I have noted numbness on the right foot at the toes, reduced reflexes for all my lower limbs, she noted my occasional falls and the daily effects on normal activities I reported to her. I think this bodes well for getting a rating so I can get in the system for some Physical therapy (but I think im worse off physically than I thought I was). I Called a couple of weeks later to see if they had received the records, which they couldn't verify, after two weeks of this I did and IRIS inquiry and was told they had the records. So I called a couple of times after that to see if it was in ratings and was told it was waiting to be pulled. Then May 14th I called and was told that they were waiting for medical records. I indicated I sent them and they verified receipt. VA employee indicated VA still had to request them from the provider even though I sent them in. So I asked when they requested them (id check with Dr.'s office on getting them sent). Employee said VA hadn't requested them yet and she couldn't tell me when they would be able to get a letter sent out requesting them. I did an IRIS inquiry, and request through Senator’s office. IRIS inquiry went no where, they said they had the records and that there was a backlog. Senator sent a letter saying they were looking into it. Called today person looking on the system said a senior staff member had pulled my file yesterday, put me on hold and I ended up talking with the senior staffer. He told me they were looking into my claim at the request of the senator’s office. He indicated he could see that I sent in medical records and a records release form and said they still had to request the records. I told him the VCAA form I sent said don’t wait for records, and I only sent the release form back since their letter to me said they needed it and not receiving it would seriously impact my claim. I also pointed out they have had it for over 60 days and still hadn't sent a request for those records, long pause and he said I see your point. He indicated he would have the record sent to rating unless there is some other reason it wasn't ready. I asked about how long it would take to rate and he said from 2-4 weeks. Then about another 2 weeks after that for post determination. Here are my remaining questions:

Do you think im getting strung along or is this guy giving it to me straight?

Some opinions on what my rating might be(i know hard without complete details)?

My original C&P had arthritis on the x-ray, but the physician gave me full range of motion without using a Goniometer and no xrays were made of the adjacent segements that now clearly show the same level or grater arthritic activity than the original segement, is this CUEable for the 10% rating ror X-ray evidence?

Can I ask for secondary SC on cervical segment due to altered body mechanics on a NOD?

Will I have to go back for additional C&P's for nerves and breathing or will they rate off what they have?

Sorry lots of questions but interesting in hearing your opinions.

Best regards,

Tyler

[jbasser]

I have seen Cspine filed secondary to Lumbar spine for Arthritis. It would be a new claim.

Remember, Nerve groups are rated separately when associated with Ratings of the spine.

Pulmonary innervation is at C3 with accessory nerves at C4/C5. The Phrenic Nerve.

The symptoms of this are an elevated diaphragm on a chest xray, wiith paralysis under flouroscope ( Sniff Test)

Hope this helps.

Edited May 25, 2007 by jbasser (see edit history)

[Vike17]

Tyler,

"Do you think im getting strung along or is this guy giving it to me straight?"

You probably didn't do yourself any justice by getting your senators office involved. Considering you filed for the increase about six months ago, you're actually doing pretty decent as far a time wise is concerned. Try to be a little more patient.

"Some opinions on what my rating might be(i know hard without complete details)?"

Based on what you posted, your range of motion will warrant a 40% evaluation. However, depending on how many incapacitating episodes you had within the last 12 months, it may be hier (60%). You should also receive a seperate rating for the ED at 0% with the SMC "k" award. In order to receive a seperate rating for any footdrop, you'll need a nerve conduction study/EMG showing what nerve is damaged.

"My original C&P had arthritis on the x-ray, but the physician gave me full range of motion without using a Goniometer and no xrays were made of the adjacent segements that now clearly show the same level or grater arthritic activity than the original segement, is this CUEable for the 10% rating ror X-ray evidence?"

No, accuracy of exams and medical records are not a basis for a CUE. You should have appealed that decision within the one year time limit from the rating decision.

"Can I ask for secondary SC on cervical segment due to altered body mechanics on a NOD?"

You can ask for anything; however, it all comes down to medical evidence linking the one condition to the other. As Jbasser said, I have also seen Cervical spine condition rated as secondary to a thoracolumbar disability. You need to ask your doctor this question. Only he/she can make that determination.

"Will I have to go back for additional C&P's for nerves and breathing or will they rate off what they have?"

If those additional disabilities were not addressed by the C&P examiner and/or you haven't claimed them yet, then, yes, more than likely you'll need another C&P exam for those conditions.

Hope this helps!

Vike 17

[SLEDGE]

"My original C&P had arthritis on the x-ray, but the physician gave me full range of motion without using a Goniometer and no xrays were made of the adjacent segements that now clearly show the same level or grater arthritic activity than the original segement, is this CUEable for the 10% rating ror X-ray evidence?"

Excerpt From Berta on Feb. 16., To BETRAYED

"My point is- do you have a copy of the actual C & P results?

I am wondering if the VA examiner actually addressed the relationship to your other disabilities as well as using the goinometer"

"the goinometer"

When the examiner does not specify that the goinometer was used the examination 'is not complete' for rating purposes.

When the patients physical limitations cannot be ascertained by the rater due to the 'lack of a contemporaneous examination' by the examiner, using the goinometer, the claim cannot be rated and will have to remain open.

The examination without the goinometer was not an examination that the RO could use for rating purposes.

'Full Range' ain't even a number on the scale.

The act of rating the claim without a qualifying examination is grounds for C.U.E., they screwed it up.

Therefore, the claim remains open.

The amount of time that has passed since the erroneous rate was established is not an issue for the RO to even consider because their lack of quality in their work has left the claim open from the original date of the filing of the claim.

The effective date has to be the original filing date.

From: http://www.va.gov/vetapp05/files3/0516620.txt

On November 9, 2000, the President signed into law the

Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.

106-475, 114 Stat. 2096 (2000). This law redefines the

obligations of VA with respect to the duty to assist and

includes an enhanced duty to notify a claimant as to the

information and evidence necessary to substantiate a claim

for VA benefits. The final rules implementing the VCAA are

codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)

(2004). This change in the law is applicable to all claims

filed on or after the date of enactment of the VCAA (November

9, 2000), and to claims filed before the date of enactment

but not yet final as of that date. See 38 U.S.C.A. §§ 5100,

5102, 5103, 5103A, 5106, 5107, 5126 (West 2002).

"and to claims filed before the date of enactment

but not yet final as of that date."

Based upon the above, in my opinion, you should file a C.U.E. on the original rating decision.

sledge

[71M10]

Thanks for the input.

To clarify, I only contacted senetor's office since VA couldn't/wouldn't verify they had recieved the VCAA notice and records sent to them and they still hadn't sent me a copy of the c-file.

Best regards,

Tyler