Nod I Sent In For Back, Please Critique

[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

[HM1retiredUSN]

Please don't take my comments and get pissed. I found your post very hard to follow. I'm sure you did some cutting and pasting for us, and I hope what you sent to the regional office was more uniform.

Now, I am responding for a few reasons. First, when I was at 90% and knew I was 100%, I did a request for reconsideration, based upon the recommendation of an RVSR with almost 20 years of experience. I think another poster got it right when they said you can usually get a decision back (reconsideration) much faster and if it doesn't work out, you still have the NOD. My year deadline actually came without a decision so I put in an NOD to preserve my rights of appeal. Fortunately my decision of 100% came a few weeks later with a huge retro check.

Second, with my request for reconsideration, I sent a 10 page, step-by-step novel of what they said my rating was and why, then I compared what I knew it was, with description of the evidence (whether it was an ER visit, dr. appt, clinic appt, whatever) and the next higher rating and why I was at the higher level. Fortunately everything was clear cut...... No "more closely approximates" statements were needed or medical opinions. Thank god I was a Corpsman. Anywhoo........ I digress...... Clean up the write up (unless it was disorganized in the cut and past for us), and I wish you well. Oh, I'm sure you're wondering who the heck I am giving advice. LOL I'm just a friendly neighborhood employee of an establishment that this website bashes on a daily basis. ;) Good luck!

[71M10]

Nope no need for me to get pissed. To ask for critique and not accept it would be a waste of time. It is disjointed and disorganized. I was trying to follow and rebutt the Decision Document that VA sent to me in the order that it was written. I do need to clarify that it is a NOD and that I wish to have it sent through the DRO process.

Do I ask for a reconsideration? I don't disagree with the results of the exam, I just don't think the regulations were applied properly.

[luvHIM]

71M10, you asked:

Do I ask for a reconsideration? I don't disagree with the results of the exam, I just don't think the regulations were applied properly.

Is the misapplication of the regulations going to affect the outcome of the rating you are seeking?

In the past I did not disagree with the rating exams. But I sure as heck disagreed with how the RO used the regulations to determine my rating. I requested the evidence be reconsidered and pointed to the regulations that I believed should have been applied. Well, they used the regulations alright. But I still did not get the rating I was seeking. Long story short, I filed the NOD within the 1 year time frame because RO came back with a response to the Reconsideration within the first 5 months of that time frame. You can have it go directly to the DRO and bypass the Reconsideration. It is just that sometimes the rating specialist sees if differently than he/she saw it initially and it can change the outcome without a DRO getting involved. But that's your call. If the Reconsideration begins to get into five-six months of the time you have to file a NOD, than file the NOD at that mark. But you have a year. I don't know what time frame you are in right now. But if you have some time to "perfect" your claim for a reconsideration, I would do that first. But that's just me.