Rating Decision

[Dale Jr. 8]

I received my rating decision in the mail yesterday. I had applied for 1. Service connection for depression as secondary to my lumbar strain. 2. service conn for rt. ankle strain secondary to lt. ankle strain with residuals. 3.Reeval for lumbar strain. 4.Reeval of lt. ankle sprain. 5. SC for sciatica secondary to lumbar strain with DDD and 2 ruptured discs and 1 bulging discs. 6. Entitlement to I/U. I received 1. 10% for the depression. 2. SC and 0% for the rt. ankle. 3. Lumbar strain stayed at 20% 4 Lt. ankle sprain stayed at 10%. 5 SC for sciatica was denied. 6. I/U was denied. I started out with 505 and now have 60%. My questions are as follows. 1. The rt. ankle has the same ROM as the lt. ankle which is rated at 10%. All info on the rt. ankle in the dceision is the same as the lt. ankle. Should I appeal this? 2. the ROM on the lumbar strain went from a combined ROM of 165 to 135. The forward flexion was 60 deg and now it is 30 deg. The way I read the rating laws a forward flexion of 30 deg or less grants a 40 % and anything more than 30 deg but not more than 60 deg. Should I appeal this? 3. SC for Sciatica. The decision states the exam revealed no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. The exam lasted only for 10 mins for all items except the depression. That was a seperate exam. Should this be appealed. And lastly The I/U was denied. In Aug of 05 I was awarded Soc. Sec. disability for depression and lower back problems all SC conditions. That was the only things that were listed on the law judges decision. Should I appeal the I/U decision. I currently have 1 SC at 30% and a combined of 60% I believe I should have 1 SC at 40% the lower back and a combined of 70% Either way shouldn't the VA have sent this for extra-shedular consideration based on the Soc. Sec. decision that was submitted to them before this rating decision?. I have an appt with my local NC division of veteran affairs office this week coming up. I am afraid that they will not have the answers. They seem to only be good for filing the paperwork and forwarding any evidence to the VA. Sorry this is a lengthy post but I tried to include all the info that I had. Thanks in advance for the answers to all these questions. Dalejr 83

[Dale Jr. 8]

Are you talking about waiting on retro pay from VA for your dependents? I didn't have to wait. My dependents were already in the VA system so I didn't have to wait. I am told that you cannot get liscence plates for free until you are 100% either schedular or I/U. I can not get any property tax break since NC only gives tax breaks to vets that are 100% and get less than $25,000 a year. I don't know of any vet that makes that little at 100% so that benefit here in NC is a farce. I did however get my lifetime fishing liscence for $10.00 You only had to be 50% for that. Did you say that you have applied for SSDI or gotten it? DJ 8

[Dale Jr. 8]

Rdawg,

I was told that back strain and DDD are both considered the same when VA does their rating. I know that back strain is rated on range of motion. How is DDD rated? I have 20% on the lower back strain currently, based on 45 deg of forward flexion. At my latest C&P my forward flexion is 30 degrees which should have resulted in a 40% rating. I already have an IMO for the sciatica but it is from a General Practioner MD and not Dr. Bash. Maybe they like his reports better than the one I sent in. Mine only cost me $75.00 for the office visit. DJ 8

[rdawg]

I submitted all of the paper work for my dependents with my initial claim. They said I needed to fill out another form(they already had it) to claim my dependents. I did that and was told it could be 18 mos. to get the rest of my retro and the correct monthly amount.

Dale,

What is the code on your award letter for your back?? I would advise to not act or ponder on what "you've been told". Look at your award letter and look up the code here rating schedule. If your are rated under 5320 ROM does not account for anything.

rdawg

[Dale Jr. 8]

Rdawg,

I do not see a code on the rating decision letter. The only thing it says is lumbar strain with decreased ROM. Under reasons for decision it says that forward flexion is 30 degrees with a combined ROM of 135 degrees. Then it goes on to say that a higher evaluation of 40% is not warranted unless there is forward flexion of the thoracolumbar spine of 30 degrees or less; OR favorable ankylosis of the entire thoracolumbar spine. This is contradictory. DJ 8 :)

[rdawg]

that makes perfect sense to me.

just kidding!!

you've been hit with va double speak. you are being rated under DDD or else they would not be discussing ROM. With lumbar strain ROM is irrelevent.

I would call and call and call until somebody explained to me why it says my forward flexion was 30 and I need a forward flexion of 30 or less to be rated at 40%.

[luvHIM]

Rdawg,

I do not see a code on the rating decision letter. The only thing it says is lumbar strain with decreased ROM. Under reasons for decision it says that forward flexion is 30 degrees with a combined ROM of 135 degrees. Then it goes on to say that a higher evaluation of 40% is not warranted unless there is forward flexion of the thoracolumbar spine of 30 degrees or less; OR favorable ankylosis of the entire thoracolumbar spine. This is contradictory. DJ 8 :)

ROM is NOT irrelevant with lumbosacral (lumbar) strain, under DC 5237. The rating criteria used is DC 5242 (along with DC 5003 for degenerative arthritis), which it appears to me you were rated under. The VA rater apparently took the ROM into consideration. But it looks like the (VARO) rater added on the 5 degrees making your forward flexion 35 degrees instead of the 30, as the criteria states they can do. Rather than the rating specialist presuming that the C&P examiner assessed the 5 degrees in his/her overall diagnosis of you; and being more liberal in applying the law...the VARO rater played hard ball and did not give you the benefit of the doubt.

My question is what about things like pain on motion, which would bring DeLuca vs. Brown into consideration. Was pain with movement discussed in your C&P examination report? Do you have a copy of your most recent C&P exam? Did the rating examiner have your C-File when the exam was performed? You can always request a recon based on the fact that the examiner did not fully review your medical evidence. In a reconsideration, I would request also that the 30 degree forward flexion be re-evaluated in observation of the benefit of the doubt rule.

The other Diagnostic criteria being suggested by "rdawg" is under 5320 Group XX; Lumbar region. If your condition is moderately severe it still should be 40%. I think you have gotten some good advice from Berta and Carlie and really need to look over everything so that when you proceed it is clear and precise. But by all means fight this decision. Best regards.

Edited January 16, 2008 by luvHIM