It Took 175 Days To Get It Wrong!

[71M10]

Well it took Detroit 175 Days to process an increase on an original 0% award from 1988.

My C&P physical noted that I have Ankylosis (part of spine) and that the spine is fixed in Flexion, with Dyspenea (flattening of Diapragm on x-ray), Urinary symptoms, ED, and numbness in toes left foot (with Valgus gait left side) and loss of sensation on skin of left side of back when walking. Forward Flexion to 25 (other measurments 10-15). Spine is also khypotic and Scolotic. DDD L5-S1 due to thoracic Khyposis. Cervical Spine has Degenerative Arthritis and Khyposis (full measurement of motion was not done).

They rated me 40%

They stated I was not ratable at the 50% since my entire thoracolumbar was not ankylosed. In the text of the decision (and C&P) it stated that my spine was fixed in Flexion which along with my other syptomology supports a rating at the 50% level if they would read the notes in that section.

They have ignored the instructions on rating residuals (urinary, ED, Nerve damage).

So I plan to appeal to DRO on the Lowball and ask them to rate the Urinary, ED, and Nerve deficits (I thought they would deffer in first place for another C&P).

I think I need a medical opinion on the Cervical Spine since my original SC was for Thoracic strain and Arthritis. Can I appeal that or will it be a new claim?

Sorry for all the questions.

The Khyposis

[Alex]

Following are the diagnostic codes for rating the spine:

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 disease

Unfavorable ankylosis of the entire spine 100%

Unfavorable ankylosis of the entire thoracolumbar spine 50%

Unfavorable ankylosis of the entire cervical spine; or, 40%

forward flexion of the thoracolumbar spine 30 degrees or

less; or, favorable ankylosis of the entire thoracolumbar

spine

Forward flexion of the cervical spine 15 degrees or less; 30%

or, favorable ankylosis of the entire cervical spine

Forward flexion of the thoracolumbar spine greater than 20%

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 kyphosis

Forward flexion of the thoracolumbar spine greater than 10%

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 height

Note (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

Ir looks from your description that the VA's 40% rating is not necesarily wrong, but make sure the examination report contains comments on your fatiguability, etc. in accordance with the DeLuca case.

Alex

Edited June 25, 2007 by Alex

[71M10]

Following are the diagnostic codes for rating the spine:

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 disease

Unfavorable ankylosis of the entire spine 100%

Unfavorable ankylosis of the entire thoracolumbar spine 50%

Unfavorable ankylosis of the entire cervical spine; or, 40%

forward flexion of the thoracolumbar spine 30 degrees or

less; or, favorable ankylosis of the entire thoracolumbar

spine

Forward flexion of the cervical spine 15 degrees or less; 30%

or, favorable ankylosis of the entire cervical spine

Forward flexion of the thoracolumbar spine greater than 20%

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 kyphosis

Forward flexion of the thoracolumbar spine greater than 10%

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 height

Note (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

Ir looks from your description that the VA's 40% rating is not necesarily wrong, but make sure the examination report contains comments on your fatiguability, etc. in accordance with the DeLuca case.

Alex

The Measurement that was done did confirm with DeLuca. They however ignored notes (1) and (5). I was wondering if under Sections 4.7 higher of two evaluations, 4.3 Resolution of reasonable doubt, and especially 4.10 functional impairment. The fact that the muscle spasams have me locked forward and have done so for so long, that they have altered the shape of my spine should warrent a higher rating. I meet the perponderance of thier Criteria for what demonstrates Unfavorable Ankylosis. Am I putting too much importance on 4.7, 4.3, and 4.10??

I figure I will get an updated copy of the c-file, the complete rating decision look at it for 10-15 days, draft a NOD.

Is there any benefit to responding immediately? I suspect a careful review and having everything pulled together is the best way to move forward. If I don't persuade the DRO to make a change, than this goes to BVA which will probably drag it out even longer?

[Vike17]

71M10,

I'm willing to bet that the "ankylosis" noted in the C&P exam and the "spine is fixed in Flexion" comment was probably stated by the examiner as a body habitus. This may be why the RVSR rated the case as he/she did. Also, I'm willing to bet the "other measurments 10-15" were more than likely the additional measurements taken due to the Deluca criteria. The only thing, as Alex mentioned, is you may want to look at the number of times the examiner measured the forawrd flexion. There is a new VA giudeline out on this that states the examiner must take three measurements to asses any fatigue, weakness ect...

As far as the secondary claims, did you actually claim those conditions, or were they first noted in the C&P exam? Also, if you claimed the cervical spine and the VA denied it, what was the reason i.e no nexus, ne evidence of being incurred while on active duty, no evidence of being linked to the thoracolumbar spine ect...?

Vike 17

[71M10]

71M10,

I'm willing to bet that the "ankylosis" noted in the C&P exam and the "spine is fixed in Flexion" comment was probably stated by the examiner as a body habitus. This may be why the RVSR rated the case as he/she did. Also, I'm willing to bet the "other measurments 10-15" were more than likely the additional measurements taken due to the Deluca criteria. The only thing, as Alex mentioned, is you may want to look at the number of times the examiner measured the forawrd flexion. There is a new VA giudeline out on this that states the examiner must take three measurements to asses any fatigue, weakness ect...

As far as the secondary claims, did you actually claim those conditions, or were they first noted in the C&P exam? Also, if you claimed the cervical spine and the VA denied it, what was the reason i.e no nexus, ne evidence of being incurred while on active duty, no evidence of being linked to the thoracolumbar spine ect...?

Vike 17

Body Habitus has no comments, Cervical I am assuming I need to get a medical opinion on, since the balance of my spine is way off it should be easy enough. Other items are mentioned in the physical.

Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Do I have to file for each one of those now??

The 10-15 was a paraphrase for all the other movements. at 25 forward, 40% covers the maximum award for limitation of motion. As far as I know the other measurements wont come into play since the 40% critera only applies to forward Flexion or cervical or favorable ankylosis.

Never directly claimed Cervical, what I claimed was an increase to my "bone condition" which is what I was told was service connected in 1988 after my claim for back injury was evaluated. Nothing else but that, this year I requested the original physical and saw it said "Bone Condition" thoracic Strain and Degenerative Arthritis.

One of the Catch 22's with VA I am finding annoying is they minimize what evidence a person can give on their medical state, but than also consistantly refuse to address medical issues because the veteran didn't ask directly. When we ask directly we are politely told that since we are not medical professionals we cant make that determination.

In 1988 I also filed for a heart condition since I had abnormal ECG's and they did 3 x-rays on me and need 3-4 doctors to opinion on my Aorta, prior to discharge. VA never examined me for it, just ignored it. Asking my private doctor do a HLB27 test on me, if its positive I will start my quest for getting a diagnosis of Ankylosing Spondylitis (which would explain a lot of things).

Thanks for the comments and help.

[Vike17]

71M10,

"Body Habitus has no comments, Cervical I am assuming I need to get a medical opinion on, since the balance of my spine is way off it should be easy enough. Other items are mentioned in the physical."

If there wasn't any type of body habitus noted, then it's a good bet that there may have been ankylosis but proabaly not the entire thoracolumabt spine as needed. With the cervical spine, you said you didn't claim it, so actually there isn't anything the VA can deny. The VA typically doesn't infer a claim to simply deny it! You'll need to a file an actual claim for any secondary condition that may be a result of your lumbar spine, and submit medical evidence of the nexus. The VA can infer claims such as these, but your best bet is actually file a claim for them. I have seen this done actually quite a few times where the veteran's C&P exam also diagnosed some secondary conditions with residuals and the RVSR or the DRO went ahead and granted service-connection on a secondary basis without having the veteran actually claim them!

"Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code."

One thing to keep in mind is this is a portion of a CFR. Unless this was specifically asked on the VA Form 21-2507 to the examiner, then he/she will only address the issues stated from the requesting person.

"The 10-15 was a paraphrase for all the other movements. at 25 forward, 40% covers the maximum award for limitation of motion. As far as I know the other measurements wont come into play since the 40% critera only applies to forward Flexion or cervical or favorable ankylosis."

Yes, those actual degrees will not result in another rating percentage. 40% is the highest rating one can obtain based soley on range of motion. The only way to be awarded a higher evaluation is based on incapacitating episodes prescribed by a doctor, or ankylosis of the thoracolumbar spine or the entire spine.

"One of the Catch 22's with VA I am finding annoying is they minimize what evidence a person can give on their medical state, but than also consistantly refuse to address medical issues because the veteran didn't ask directly. When we ask directly we are politely told that since we are not medical professionals we cant make that determination"

The VA doesn't "minimize" what evidence a person can give on their medical state, it's just a matter of the source where the medical documentation comes from. Medical opinions and so forth have to be from a doctor and rightly so. The veteran can certainly tell the VA what sypmtoms and so forth they have, or how their symptoms they have affect their work or social life. However, they cannot self diagnose themselves (unless they themself is a doctor!). Can you imagine what the landscape of VA would look like if veterans were allowed to make medical statements for their own claims, VA would have 26 millions claims for 100% disability!. VA pays compensation for the residuals of any disability or disease to a bodily etiology while on active duty, not the amount od diagnosis. Many veterans, for example, will file claims for DDD L5/S1, L4/L5 disc protrusion, spinal stenosis, and scoliosis, and expect a rating for each one. When in reality they are all a part of one body system (the thoracolumbar spine). Then when the VA rates this altogther at, let's say, 40%, the veteran turns around and bitches that the VA ignored most of his claims he presented.

"In 1988 I also filed for a heart condition since I had abnormal ECG's and they did 3 x-rays on me and need 3-4 doctors to opinion on my Aorta, prior to discharge. VA never examined me for it, just ignored it. Asking my private doctor do a HLB27 test on me, if its positive I will start my quest for getting a diagnosis of Ankylosing Spondylitis (which would explain a lot of things)."

If you actually claimed this back in 1988 and the VA never made a decision on it, then that claim is still open. This means since they haven't made a decision on it, the effective date is still 1988. If I were you, I would go back and see if this really wasn't decided. After looking through your paperwork and it hasn't been decided, I would contact your RO and let them know ASAP! If it hasn't been decided you haven't lost anything yet!.

Vike 17

[71M10]

Many veterans, for example, will file claims for DDD L5/S1, L4/L5 disc protrusion, spinal stenosis, and scoliosis, and expect a rating for each one. When in reality they are all a part of one body system (the thoracolumbar spine). Then when the VA rates this altogther at, let's say, 40%, the veteran turns around and bitches that the VA ignored most of his claims he presented.

Maybe I am being thick, but The C&P exam template asked for the unrinary information which indicates I void 2-3 times a night. Twice and night is a voiding dysfunction ratable at 10%. Now I didn't claim this and it wasn't awarded, but thier Schedule for ratings tells the Rating officer to rate these. Its on the exam questionaire because it is an associtated condition related to nerve damage. The physician doing the C&P recorded the information. It is part of the record. Do I have to file a new claim for this or can I NOD the fact that they didn't rate it and it is to be rated per the schedule for ratings of the spine?

Thanks for the info on the Heart condition, although I suspect that it relates to Ankylosing Spondylitis, Arrythmias and Aoritis (inflamation of Aorta). My 88 physical I was running a low grade temp, and had a low HCT reading on my blood work-up and abnormal low reading on my Urobilingen, both indicative of AS.

Thanks