Actually I am doing this backwards, should have solicited this before sending, but with the VA I can always send the better version for the 2nd, 3rd, or 4th time I have to send it!
Positive and negative Feedback welcome.
VARO address and file number redacted.
Dear Sir or Madame:
I would like to file a notice of disagreement to the May 31, 2007 Rating Decision. I would like to have the Decision Review Officer review it and ultimately correct/finish the rating in accordance with the rules in CFR 38 part 4.
In the "Decision" section it indicates that the new rate should be 40% effective December 29, 2006. After review of the decision letter, 38 C.F.R. part 4, and the C&P physical from February 2007. I do not understand how this can be rated at less than 60% (64% rounded down). Furthermore resolution of all the disabilities identified in the C&P physical (which may require additional exams) may justify a rating as high as 80%.
The rating of 40% was granted for forward fexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine(REASON FOR DECISIONS, paragraph 6). In the next paragraph (REASON FOR DECISIONS, paragraph 7) it indicates "A higher evaluation of 50% is not warranted unless there is unfavorable ankylosis of the entire thoracolumbar spine. The examiner stated that you have ankylosis in part of your thoracolumbar spine." However the "Worksheet – Spine (Cervical, Thoracic, and Lumbar)" that was used to model the input fields for the VISTA medical records system, was from the 2002 version of the Clinician's Guide which was authored prior to the implementation of the new Schedule for Rating Disabilities; The Spine as announced in Federal Register / Vol. 68, No. 166 / Wednesday, August 27, 2003. One of the significant changes on the new criteria is it eliminates the definition of ankylosis as "complete bony fixation (ankylosis)". It has been re written as "Unfavorable ankylosis of the entire throacolumbar spine". Additionally, Note (5) provides guidance to what constitutes unfavorable ankylosis. It states:
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 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 sublaxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral postion (zero degrees) always represents favorable ankylosis.
The examiner stated in the physical that my spine was "fixed in flexion", "POSITION OF THORACOLUMBAR SPINE: Flexion", "INDICATIONS OF UNFAVORABLE ANKYLOSIS: Dyspnea, Neurologic symptoms due to nerve root stretching". The Decision document describes my thoracolumbar spine as "Inspection of the spine by the examiner found your pelvis tilted left, scoliosis and fixed in a flexed positon. You have spine kyphosis and flattening. The examiner found ankylosis of part of the thoracolumbar spine".
The Decision document goes on to say:
There are certain circumstances in which the application of 38 C.F.R. Paragraphs 4.40, 4.45, or 4.59 is warranted in order to evaluate the existence of any additional limitation of motion or functional loss due to pain, weakened movement, excess fatigability, in coordination or lack of endurance during flare-ups of joint symptoms or with repetitive use of a joint.
No additional limitation of motion or functional loss due to pain, weakened movement , excess fatigability, in coordination or lack of endurance during flare-ups of joint symptoms or with repetitive use of a joint was found.
I respectfully ask the Decision Review Officer to read the C&P physical dated February 26, 2007 the examiner does clearly indicate additional limitation of motion on repetitive use due to pain. Furthermore all movement measured was painful. Total normal range of motion for the thoracolumbar spine is 240. My total range of motion is 80 on repetitive use and all of it is painful. Paragraph 4.40 indicates "a part which becomes painful on use must be regarded as seriously disabled" Paragraph 4.45 (f) addressing pain on movement clearly mentions deformity (kyphosis), disturbance of locomotion motion (abnormal gait) and interference with weight bearing as major considerations. Paragraph 4.59 clearly states "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." Kyphosis and scoliosis represent a malalignment of the spine in the sagittal and axial planes. Application of these paragraphs are not dependent on certain circumstances as stated in the decision document they are to be applied at all times during the rating process.
VA currently rates the lumbar and thoracic spine as one articulation and lists no instruction or method to measure and evaluate motion in only part of that segment. The terms flexion and extension in the VA regulations relate to the direction of motion of a joint. The examiner clearly states that my thoracolumbar spine is fixed in flexion. They did not say part of it was fixed in flexion. Paragraph 4.7 of C.F.R.38 supports a base rating of 50% for my unfavorable thoracolumbar ankylosis since my disability picture more nearly approximates unfavorable ankylosis it is not just a restriction of movement to 30 degrees or less. This position is not unreasonable since the rating percentage from the May 2007 decision would be appropriate for someone with favorable ankylosis. It is the addition of the other disabling factors (that the examiner states I have) that warrants unfavorable ankylosis of the thoracolumbar spine being 50% disabling.
Note 1 in the latest schedule for rating disabilities of the spine clearly states:
Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
The examiner clearly stated that I had Dyspnea and Neurological Symptoms Due to nerve root stretching. My physical identified several items that should have been rated as part of this spine C&P. They are Peripheral Neuropathy in the left leg (numbness, gait disturbance) 20%, Nocturnal urinary frequency (2 times night) 10%, paraesthesia and numbness of the skin on the back 10%, dyspenea caused by flattening of the diaphragm (due to kyphosis of the spine) 10% and arthiritis and kyphosis of the cervical spine 20%.
I am willing to come down to the Detroit office to discuss my request for reconsideration and listen to an explanation as to why VA thinks the May 2007 decision is appropriate and complete. Please let me know with 1-2 weeks notice and I will come in.
If additional examinations are required to completely rate this claim please let me know when you would like me to come in for an appointment. I personally think that excluding the Dyspnea all of this should be ratable without additional examination.
Question
71M10
Actually I am doing this backwards, should have solicited this before sending, but with the VA I can always send the better version for the 2nd, 3rd, or 4th time I have to send it!
Positive and negative Feedback welcome.
VARO address and file number redacted.
Dear Sir or Madame:
I would like to file a notice of disagreement to the May 31, 2007 Rating Decision. I would like to have the Decision Review Officer review it and ultimately correct/finish the rating in accordance with the rules in CFR 38 part 4.
In the "Decision" section it indicates that the new rate should be 40% effective December 29, 2006. After review of the decision letter, 38 C.F.R. part 4, and the C&P physical from February 2007. I do not understand how this can be rated at less than 60% (64% rounded down). Furthermore resolution of all the disabilities identified in the C&P physical (which may require additional exams) may justify a rating as high as 80%.
The rating of 40% was granted for forward fexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine(REASON FOR DECISIONS, paragraph 6). In the next paragraph (REASON FOR DECISIONS, paragraph 7) it indicates "A higher evaluation of 50% is not warranted unless there is unfavorable ankylosis of the entire thoracolumbar spine. The examiner stated that you have ankylosis in part of your thoracolumbar spine." However the "Worksheet – Spine (Cervical, Thoracic, and Lumbar)" that was used to model the input fields for the VISTA medical records system, was from the 2002 version of the Clinician's Guide which was authored prior to the implementation of the new Schedule for Rating Disabilities; The Spine as announced in Federal Register / Vol. 68, No. 166 / Wednesday, August 27, 2003. One of the significant changes on the new criteria is it eliminates the definition of ankylosis as "complete bony fixation (ankylosis)". It has been re written as "Unfavorable ankylosis of the entire throacolumbar spine". Additionally, Note (5) provides guidance to what constitutes unfavorable ankylosis. It states:
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 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 sublaxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral postion (zero degrees) always represents favorable ankylosis.
The examiner stated in the physical that my spine was "fixed in flexion", "POSITION OF THORACOLUMBAR SPINE: Flexion", "INDICATIONS OF UNFAVORABLE ANKYLOSIS: Dyspnea, Neurologic symptoms due to nerve root stretching". The Decision document describes my thoracolumbar spine as "Inspection of the spine by the examiner found your pelvis tilted left, scoliosis and fixed in a flexed positon. You have spine kyphosis and flattening. The examiner found ankylosis of part of the thoracolumbar spine".
The Decision document goes on to say:
There are certain circumstances in which the application of 38 C.F.R. Paragraphs 4.40, 4.45, or 4.59 is warranted in order to evaluate the existence of any additional limitation of motion or functional loss due to pain, weakened movement, excess fatigability, in coordination or lack of endurance during flare-ups of joint symptoms or with repetitive use of a joint.
No additional limitation of motion or functional loss due to pain, weakened movement , excess fatigability, in coordination or lack of endurance during flare-ups of joint symptoms or with repetitive use of a joint was found.
I respectfully ask the Decision Review Officer to read the C&P physical dated February 26, 2007 the examiner does clearly indicate additional limitation of motion on repetitive use due to pain. Furthermore all movement measured was painful. Total normal range of motion for the thoracolumbar spine is 240. My total range of motion is 80 on repetitive use and all of it is painful. Paragraph 4.40 indicates "a part which becomes painful on use must be regarded as seriously disabled" Paragraph 4.45 (f) addressing pain on movement clearly mentions deformity (kyphosis), disturbance of locomotion motion (abnormal gait) and interference with weight bearing as major considerations. Paragraph 4.59 clearly states "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." Kyphosis and scoliosis represent a malalignment of the spine in the sagittal and axial planes. Application of these paragraphs are not dependent on certain circumstances as stated in the decision document they are to be applied at all times during the rating process.
VA currently rates the lumbar and thoracic spine as one articulation and lists no instruction or method to measure and evaluate motion in only part of that segment. The terms flexion and extension in the VA regulations relate to the direction of motion of a joint. The examiner clearly states that my thoracolumbar spine is fixed in flexion. They did not say part of it was fixed in flexion. Paragraph 4.7 of C.F.R.38 supports a base rating of 50% for my unfavorable thoracolumbar ankylosis since my disability picture more nearly approximates unfavorable ankylosis it is not just a restriction of movement to 30 degrees or less. This position is not unreasonable since the rating percentage from the May 2007 decision would be appropriate for someone with favorable ankylosis. It is the addition of the other disabling factors (that the examiner states I have) that warrants unfavorable ankylosis of the thoracolumbar spine being 50% disabling.
Note 1 in the latest schedule for rating disabilities of the spine clearly states:
Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
The examiner clearly stated that I had Dyspnea and Neurological Symptoms Due to nerve root stretching. My physical identified several items that should have been rated as part of this spine C&P. They are Peripheral Neuropathy in the left leg (numbness, gait disturbance) 20%, Nocturnal urinary frequency (2 times night) 10%, paraesthesia and numbness of the skin on the back 10%, dyspenea caused by flattening of the diaphragm (due to kyphosis of the spine) 10% and arthiritis and kyphosis of the cervical spine 20%.
I am willing to come down to the Detroit office to discuss my request for reconsideration and listen to an explanation as to why VA thinks the May 2007 decision is appropriate and complete. Please let me know with 1-2 weeks notice and I will come in.
If additional examinations are required to completely rate this claim please let me know when you would like me to come in for an appointment. I personally think that excluding the Dyspnea all of this should be ratable without additional examination.
Thank you for your assistance and service.
Best regards,
Tyler
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