lumbosacral Question On Ratings Of The Spine And 4.45 The Joints

[71M10]

Greetings all:

Have a nod filed on a 40% rating for spine. Trying to get unfavorable ankylosis rating and VA is stuck on complete/vs partial even though the last revision to ratings of the spine removed the terminology "complete bony fixation"

CFR 38 part 4 B 4.45 (f) (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions.

CFR 38 part 4 B 4.71a

General Rating Formula for Diseases and Injuries of the Spine

(For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating

Intervertebral Disc Syndrome Based on Incapacitating Episodes):

With or without symptoms such as pain (whether 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, forward flexion

of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of

the entire thoracolumbar spine...........................................................................

.... 40

PORTIONS OMITTED TO SAVE SPACE

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.

Under 4.45 it says for arthritis the cervical vertebrea, dorsal vertebbrea, and lumbar vertebrea, are groups of minor joints that are rated seperatley.

May range of motion is 20 flexion of thoracolumbar spine, The doctor also stated I have DJD lumbar spine more likely than not from my SC kyphoscoliosis and I am SC for Arthritis of Thoracic spine. Can I recieve a rating of 40% for arthritis based on limitation of motion for my Thoracic Spine and a 40% rating for DJD of lumbar spine since these are two distinct segements?

Best regards,

Tyler

[Pete53]

Nothing better than quoting their own regulations in a NOD.

Good Luck

[Berta]

Tyler- I dont see the date of the regs you posted.

IVDS regs changed:

http://www.va.gov/vetapp07/files1/0707875.txt

"During the pendency of this appeal, VA revised the criteria

for diagnosing and evaluating the spine, effective September

23, 2002, and September 26, 2003. VA's General Counsel, in a

precedent opinion, has held that when a new regulation is

issued while a claim is pending before VA, unless clearly

specified otherwise, VA must apply the new provision to the

claim from the effective date of the change as long as the

application would not produce retroactive effects.

VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003). The amended

versions may only be applied as of their effective date and,

before that time, only the former version of the regulation

may be applied. VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000);

see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003)."

Do I understand that you receive a rating for arthritis of the spine and also a rating for kyphoscoliosis and you are seeking a rating for DJD as secondary to these SC conditions?

Do the newest IDS regs help here:

Rating criteria for IVDS

Prior to September 23, 2002, the rating criteria for IVDS

under Diagnostic Code (DC) 5293 were as follows.

A rating of 10 percent is awarded for mild IVDS. A rating of

20 percent is awarded for moderate IVDS, with recurring

attacks.

A rating of 40 percent is awarded for severe IVDS, with

recurring attacks and intermittent relief. A rating of 60

percent is awarded for pronounced IVDS, with persistent

symptoms compatible with sciatic neuropathy with

characteristic pain and demonstrable muscle spasm, absent

ankle jerk, or other neurological findings appropriate to the

site of the diseased disc, with little intermittent relief.

The terms "mild," "moderate" and "severe" are not

defined in the rating schedule; rather than applying a

mechanical formula, VA must evaluate all the evidence to the

end that its decisions are "equitable and just." 38 C.F.R.

§ 4.6.

The new IVDS regs are:

Rating criteria for IVDS

"As of September 23, 2002, the criteria of DC 5293 became as

follows: evaluate IVDS either on the total duration of

incapacitating episodes over the past 12 months or by

combining under § 4.25 separate evaluations of its chronic

orthopedic and neurologic manifestations, along with

evaluations for all other disabilities, whichever method

resulted in the higher evaluation.

For purposes of evaluation under this diagnostic code, an

"incapacitating episode" is a period of acute signs and

symptoms due to IVDS that requires bed rest prescribed by a

physician and treatment by a physician. "Chronic orthopedic

and neurologic manifestations" means orthopedic and

neurologic signs and symptoms resulting from IVDS that are

present constantly, or nearly so.

When rating IVDS under the "incapacitating episode" method,

the following criteria apply. A rating of 10 percent is

awarded for incapacitating episodes having a total duration

of at least one week but less than two weeks during the past

12 months. A rating of 20 percent is awarded for

incapacitating episodes having a total duration of at least

two weeks but less than four weeks during the past 12 months.

A rating of 40 percent is awarded for incapacitating episodes

having a total duration of at least four weeks but less than

six weeks during the past 12 months. A rating of 60 percent

is awarded for incapacitating episodes having a total

duration of at least six weeks during the past 12 months.

When rating IVDS under the "chronic manifestations" method,

orthopedic disabilities are rated using the evaluation

criteria for the most appropriate orthopedic diagnostic code

or codes. Neurologic disabilities are rated separately using

evaluation criteria for the most appropriate neurologic

diagnostic code or codes. The two evaluations are then

combined under the guidance of 38 C.F.R. § 4.25.

When evaluating under this diagnostic code, if IVDS is

present in more than one spinal segment, provided that the

effects in each spinal segment are clearly distinct, each

segment is evaluated on the basis of chronic orthopedic and

neurologic manifestations or incapacitating episodes,

whichever results in a higher evaluation for that segment. "

[71M10]

The excerpts that I posted are from the Current version of CFR38 online through GPO.

My current award is 40% (based on limitation of motion) for Thoracic-Strain and Arthritis.

Since the C&P examiner stated that the lumbar flattening and DJD of the Luber spine present is more likley than not cause by my Service Connected Khyphoscoliosis of the Thoracic spine can I assert (sucessfully) that my rating should be 40% for arthritis of the thoracic spine segment (based on limitation of motion) and 40% for DJD of the lumbar segment (based on limitation of motion, using ratings of the spine). The new rules from 2003 (in current CFR) indicate the Thoracolumbar segment should be evaluated separately from the Cervical segment. VA never changed the language in 4.45 that identifies 3 groups of minor joints to be evaluated separately when contemplating ratings for arthritis(lumbar, dorsal, and cervical vertebrea).

Do these two parts of the CFR conflict(pyramiding)?

Instead of arguing for unfavorable ankylosis am I better off trying to push two separate and distinct ratings(64% compared to 50%)?

[Berta]

I wish I knew more about these types of ratings but I do see what you mean--

"Instead of arguing for unfavorable ankylosis am I better off trying to push two separate and distinct ratings(64% compared to 50%)?"

I would push for VA to consider both of these scenarios.

If you feel that your medical evidence warrants a higher rating- why not-

It sometimes pays to state more than one reason for a higher rating- in my opinion-to make sure they consider you under any applicable rating criteria.

For example-I filed 3 separate claims for direct SC death of my husband.

Meaning 3 claims on 3 separate bases as I had evidence to support each scenario.

It isnt always appropriate- but a vet should not get locked into only one potential way to get service connection or an increase.

The VA is actually supposed to consider any potential way to either award SC or award a higher rating- but they usually dont-

so I think the vet has to raise every potential issue and basis for it themselves.

Edited November 8, 2007 by Berta

[luvHIM]

Under 4.45 it says for arthritis the cervical vertebrea, dorsal vertebbrea, and lumbar vertebrea, are groups of minor joints that are rated seperatley.

"My range of motion is 20 flexion of thoracolumbar spine, The doctor also stated I have DJD lumbar spine more likely than not from my SC kyphoscoliosis and I am SC for Arthritis of Thoracic spine. Can I recieve a rating of 40% for arthritis based on limitation of motion for my Thoracic Spine and a 40% rating for DJD of lumbar spine since these are two distinct segements?"

Arguing the "unfavorable ankylosing" would mean that you have radiographic evidence that your spine is ankylosed (bamboo formation, "bony fixation" or fused), not just "Khyphoscoliosis" of the thoracic spine. So, that is not a good argument.

I have moderate levo/devo-convex scoliosis that I want service connected as secondary but my thoracic spine is not fused. So, my claim is based on DC 5003 degenerative arthritis of the T-spine (w/X-ray evidence of spurring) due to ankylosing spondylitis (active disease rated under DC 5002). What I am hoping this does is allows for a rating under both limitation of motion and incapacitating exacerbations due to flare-ups and rating based on "pain on motion," as well.

So, in that regard, I agree with Berta on covering all bases with the VA. You come out with one or the other and or all. Then challenge or appeal if you still disagree. But I would cover all criteria the spine is ratable under.

You stated: My current award is 40% (based on limitation of motion) for Thoracic-Strain and Arthritis.

YES, You can file separately for the lumbar spine and claim it as secondary (based on what the C&P exam reveals) and seek the maximum 40% under DC 5003, along side 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome DC 5002).

But are you saying that you have no pain on motion?

My lumbar spine is flattened. I have no lateral left/right rotation. I have no forward flexion or backward extension. It (my lumbar spine) is in what VA regs and the RO has refered to as a "fixed" (favorable) position. However, I have pain on motion in my entire spine, especially when I experience an excerbating flare-up of the AS/Fibromyalgia.

I know it is best to be specific in your NOD. So, have you already filed it? Did I misunderstand?

[luvHIM]

If you search BVA decisions under "Thoracic and lumbar spine disorder" you might be able to get an idea of how to approach your NOD, or at best which way to go about seeking the benefit you want for your lumbar spine. Some of the cases are decided as recent as 2006/2007.