Its Happened Again

[Flatbroke]

Well after waiting since Oct got the big brown envolope today.

Denied a higher rating for lower back, says new c&p still does not warrent a higher rating. The examinator did not use a meter just her eye.

Going to NOD the exam on those grounds.

Also denied me for an earlier effect date stated no CUE even though the evidence was in my SMR's just prior to discharge and was attested to by IMO that my condition was there and the VA had no right to deny my a service conection in 1970.

THe VA asked if I wanted to file a formal NOD, h*** yes I will file a formal NOD I did not drop dead from the results so if I have to crawl out to the mail box they will get A FORMAL NOD.

My attorneys has copies and they are already working on the reply and working on the statement to send in. My main attorneys were JAG Officers and still cant believe the way the VA is treating the Veterns.

Semper Fi

Everything stayed the same until it changes. It did not change

[rentalguy1]

Sorry to hear. You may run into an issue claiming a faulty C&P this many months later, and only after a denial. That doesn't mean the approach won't work, it just may be a bit tougher to overcome. If the examiner was silly enough to put something like "was able to bend to within 12" of the floor," then you're golden. I actually had a examiner use this exact language in a C&P report, and the rater used it to reduce my rating. I didn't know enough back then to fight it, but you can bet your backside that I brought up the CUE in my current claims.

Unless you need the retro money, it may be more beneficial for you to file a new claim for increase, and go into the C&P well armed with the rating criteria stored in your noggin and the C&P worksheet in your hand. Good luck, and give me a shout if you need help looking something up.

[yoggie2]

Jesus Flatbroke, this happened to me the exam was not performed due to constant pain. A nurse practitioner wrote it down as if if was performed and my wife was with me and rentalguy is right on this one. I was denied as well almost exactly the way you were. But when I get another C&P I will be ready and demand that the exam be done completely not half a$$ to form a denial, this is absolute BULLSH&^&$! I was eyeballed and was looking at the gauges across the room that was never even picked up one time and the examiner wrote everything down as if it was performed, and I was DENIED just like that...

[william n]

i didnt want too chime in....but, please perserverence is key...i share your pain..William n

[Teac]

Flabroke,

Back injuries are usually rated based on range of motion or Incapacitating Episodes. If you can not show that a doctor has placed you on bed rest then you cannot be rated for incapaciating episodes. If you can sit down then they will say that you can bend at the waist and how far, they are not required to use the "meter" to determine range of motion. I have a 60% rating for my back and in my 22 plus years of dealing with the va they have never once used the "meter". I am willing to bet that no meter was used when you received your initial rating either.

Your post does not say exactly what it is about your lower back that you want an increased rating for so I am just going to wing it and suggest that you read the reason for the denial closely and then read the ratings for the lower back. Between the denial and the rating codes and being honest with yourself you should be able to determine if you actually rate an increase or if the va has actually denied a valid claim.

Without more information about your specific lower back issue Ie: degenerative disk disease, neurologic abnormalities caused by the back issues etc. it is hard to provide any specific advice.

I don't want to burst you bubble but you will not win an appeal if you just claim that the meter was not used to decide the range of motion. You should also know that 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. Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted.

I wish you the best.

[71M10]

Flabroke,

Back injuries are usually rated based on range of motion or Incapacitating Episodes. If you can not show that a doctor has placed you on bed rest then you cannot be rated for incapaciating episodes. If you can sit down then they will say that you can bend at the waist and how far, they are not required to use the "meter" to determine range of motion. I have a 60% rating for my back and in my 22 plus years of dealing with the va they have never once used the "meter". I am willing to bet that no meter was used when you received your initial rating either.

Your post does not say exactly what it is about your lower back that you want an increased rating for so I am just going to wing it and suggest that you read the reason for the denial closely and then read the ratings for the lower back. Between the denial and the rating codes and being honest with yourself you should be able to determine if you actually rate an increase or if the va has actually denied a valid claim.

Without more information about your specific lower back issue Ie: degenerative disk disease, neurologic abnormalities caused by the back issues etc. it is hard to provide any specific advice.

I don't want to burst you bubble but you will not win an appeal if you just claim that the meter was not used to decide the range of motion. You should also know that 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. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

I wish you the best.

Use of a gionometer(sp) is certainly required unless the rating is based on incapacitating episodes. Have you had an spine exam since Deluca was decided that was not rated under IVDS and incapacitating episodes? Incapacitating episodes will only be a rating criteria if you have IVDS as a diagnosis.

Yes the exceptional cases clause could come in play, but they have to provide the medical rationale to back it up.

I agree that he will not win an appeal based on an improper exam, however he can get a remand and a new physical. Not losing isn't as good as winning but beats losing straight out!.

Best regards,

Tyler

[SeattleShay]

Flatbroke

I have been denied since '84 for my back...actually got 0% same thing.

I now have proof that since 1980, I've had 3 open fractures.

Hmmmmmm, wonder where they trained that chimp that reads the C&P x-rays ??????????