Success Story..... I Think

[Tim_USMC]

Hello all!

This is my first post and I would like to start off first by saying thanks to everyone for all the information I've read on this site. I was in the Marine Corps for 5 years and was involved in a motor vehicle accident. I fractured 2 vertabrae (C6-C7) in my neck, 2 vertabrae (T1-T2) in my back, lacerated my liver, bruised my lung, broke my right shoulder blade, and broke my right ankle. I had surgery on my neck (fused C-6-C7) and right ankle (with hardware). I was in the hospital for 10 days then home on leave for about another 45 days. I have nerve damage in my eye (Horners Syndrome), and also nerve damage that reduces the ROM in my left shoulder and also causes numbness in my right hand. I submitted a claim back in July, went to my C&P in September, and just got my decision about 2 weeks ago. I claimed my Neck, Back, Right Shoulder, Left Shoulder, Right hand numbness, Horners Syndrome, and scars from surgery. I have a really bad scar on my Neck/Back from where they went in to fuse the vertabrae in my neck (10cmX2.5cm) which is depressed and discolored. I guess my question is do you think what the VA did is correct. I've been searching VA Appeals and reading the CFR thinking of what I should have been given, but it came up short. The gave me a 40% total rating. I have constant pain in my back and reduced range of motion in my neck, but I guess I'm getting screwed due to the "incapacitating episodes." I must still have some Marine in me because I haven't been to the doctor since I've been out. I've just learned what I have to do when the pain comes. Heres how it breaks out.

10% Right ankle FX - agree

0% Scar Right ankle - agree

10% Right Shoulder FX - agree

10% Cervical Spine fusion WITH limited range of the left shoulder -disagree

10% Paraesthesias, right upper extremity - agree

0% Scar cervical spine - disagree

10% Fracture T1-T2 - agree, but wish it was more!

0% Horners Syndrome - agree

I'm not sure if anyone here know's much about neck and back injuries, but reading the CFR states that nerve damage should be rated as a separate injury (unless I'm reading it wrong). My biggest question is why did they combine my left shoulder ROM (can't move arm above shoulder level) with my neck injury? Also when reading on scars it says with two characteristics of deformity will be rated at 30% (Face or Neck). Am I just reading the CFR incorrectly? Here is a letter I wrote to the person representing me. I was told they are going to get a copy of my examination and talk to the rater to see if it can be changed without going through an appeal process. I'm new to all of this and would greatly appreciate any comments. Here is what I wrote to the organization representing me:

I am writing a statement regarding my claim for compensation. I disagree with two decisions on this claim. The first decision deals with combining my neck and left shoulder condition. The Code of Federal Regulations (CFR) states under ratings of “The Spine” to “Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.” Also under “The Shoulder and Arm” code 5021 states that limitation of motion of the arm at shoulder level warrants a 20% rating. My decision says “You are unable to move the left shoulder more than 90 degrees” and “The examiner noted there is intervertebral disc syndrome with chronic and permanent nerve root involvement at the level of C5, limiting shoulder abduction.” The decision says range of motion in my shoulder is due to nerve damage. Based on the CFR I should be given a separate 20% rating for my left shoulder along with 10% for my cervical spine instead of a 10% rating for my neck and shoulder condition combined.

My second disagreement deals with my cervical spine surgical scar. My decision says “The VA examiner reported a scar posteriorly in the neck area that is 10 cm x 2.5 cm. It is depressed and nontender and slightly disfiguring.” The Code of Federal Regulations states under code 7800 “Disfigurement of the head, face, or neck” that a 30% rating is warranted with “with two or three characteristics of disfigurement.” Two of the eight characteristics are “Scar at least one-quarter inch (0.6 cm) wide at widest part” and “Surface contour of scar elevated or depressed on palpation.” These two characteristics are noted for my scar in my decision, but I was given a 0% rating for my scar. I believe I should be given a 30% rating for the surgical scar on my neck.

I can be reached at work during the day at 703-***-****. Thank you for your time and consideration in this matter. Please let me know if there is anything else you need from me.

Thanks,

Tim

[Jay Johnson]

I'll let some of the others here answer the physical questions as they are far more knowledgable. In general, though, you need to keep in mind that a VA rating is based on your level of impairment to "work" and you may need to gather more evidence to that effect. Basically, more occupational evidence would likely help your case the most (IE - if you can show that you are severely limited in the work you can do by your disabilities).

It sounds like you have done some good research for a NOD, but be careful about a SO filing the NOD for you. Make sure they put in the same level of detail and thought as you have in your letter to them.

P.S. - I know you marines like to play it "tough" whenever you can:-) but sometimes you have to swallow some pride in order to best represent your claim.....

[Pete53]

Tim:

Welcome to Hadit and thank you for your service.

[john999]

Tim

One thing you need to do is go to your local VAMC for treatment and complain your head off about the pain and your lack of range of motion. You need to stay in treatment for these injuries. This will help with you getting increases. The VA will hand out those 10% ratings but you need a combination of 60% with one at least 40% to ever get unemployability compensation. The thing is that these kinds of injuries usually get worse with age due to arthritus setting in etc. I would start to prepare for this by getting treatment for all your disabilities at the VA. If you are taking meds you need to document the side effects. If you are in constant pain I am sure you were low balled with all those 10% ratings. You need to show continuity of treatment or the VA just assumes that these things don't bother you that much.

[wallyg]

Tim,

If you gave us your age, when the accident occurred and the date of your discharge, we would have a better idea of what advice to give.

You seem to have done some significant research, and to be knowledgeable in the relevant areas of 38 CFR, Chap 4.

It is pretty much standard for the VA to give 10% and 0% ratings on an initial claim. They hope you won't come back for more. You should be filing a NOD on ALL of your claims, as it is obvious that NO decision was based upon pain levels.

Do NOT let your VSO write the NOD for you. Do it yourself, and if you wish submit it thru your VSO, although personally I would file it myself and just notify the VSO.

Emphasize the points you have made in your post, and add comments about pain, weakness and fatigability, where relevant. I have many of the same problems, although not as severe as yours are. I have been fighting the VA for a long time, because their C&P examinations do NOT comply with their own C&P worksheets.

If you have not reviewed theses, you will find a URL link on hadit's Home Page.

Good Luck

[Tim_USMC]

Wally,

I am 23 and the accident occured in about 2 years ago and I got out of the service Dec 04. I appreciate all the help. Would it hurt if I went to a VAMC during whatever my VSO is going to do? Will that mess the process she is trying to follow? Have you ever heard of someone going straight to the rater and asking them to up the percentage? I guess I should just call her and find out.........

Tim