hurryupnwait Posted August 29, 2008 Share Posted August 29, 2008 Do I use the IVDS rating or the older rating criteria, which I can not find. Thanks Paul Link to comment Share on other sites More sharing options...
hurryupnwait Posted August 30, 2008 Author Share Posted August 30, 2008 Hi Berta This is from the link you provided concerning Hart v Mansfield Significantly, the criteria for spine disorders were amended in September 2002 and again in September 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). In this case, the veteran's claim for an increased rating was received in November 2004, subsequent to the final amendments. Thus, only the most current version of the rating criteria (i.e., the September 2003 amendments) is for application. As alluded to above, the Board will determine whether he is entitled to a rating higher than 20 percent looking back to one year before his claim for an increased rating was received, that is, from November 2003. I have favorable ROM readings from Dr. Bash on Oct 11, 2007, so therefore, my attorney needs to file my NOD and rate increase request before Oct 11, 2008, to be able to use those motion measurements. Is this correct? My Attorney, Ken Carpenter, is still waiting for the copy of my c file, he requested it in March. Thanks again Paul Link to comment Share on other sites More sharing options...
HadIt.com Elder rentalguy1 Posted August 30, 2008 HadIt.com Elder Share Posted August 30, 2008 Here is the "interim criteria" that was used from about 2001-2003. If I can find the old criteria, I will post it as well. From 67 FR 54349: THE SPINE Rating * * * * * 5293 Intervertebral disc syndrome: Evaluate intervertebral disc syndrome (preoperatively or postoperatively) 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 results in the higher evaluation. With incapacitating episodes having a total duration of at least six weeks during the past 12 months ................................ 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months ..................................... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months ..................................... 20 THE SPINE—Continued Rating With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months ..................................... 10 Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome 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 intervertebral disc syndrome that are present constantly, or nearly so. Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. * * * * * (Authority: 38 U.S.C. 1155) Link to comment Share on other sites More sharing options...
HadIt.com Elder Josephine Posted August 30, 2008 HadIt.com Elder Share Posted August 30, 2008 Hi Berta This is from the link you provided concerning Hart v Mansfield Significantly, the criteria for spine disorders were amended in September 2002 and again in September 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). In this case, the veteran's claim for an increased rating was received in November 2004, subsequent to the final amendments. Thus, only the most current version of the rating criteria (i.e., the September 2003 amendments) is for application. As alluded to above, the Board will determine whether he is entitled to a rating higher than 20 percent looking back to one year before his claim for an increased rating was received, that is, from November 2003. I have favorable ROM readings from Dr. Bash on Oct 11, 2007, so therefore, my attorney needs to file my NOD and rate increase request before Oct 11, 2008, to be able to use those motion measurements. Is this correct? My Attorney, Ken Carpenter, is still waiting for the copy of my c file, he requested it in March. Thanks again Paul Paul, I have been wondering, maybe sounding stupid, why can't your lawyer use your copies of your C-file. You have Dr. Bash's report and all of your records don't you? Your BVA and AMC decision, SOC and doctor records. Thanks, Betty Link to comment Share on other sites More sharing options...
hurryupnwait Posted August 30, 2008 Author Share Posted August 30, 2008 Here is the "interim criteria" that was used from about 2001-2003. If I can find the old criteria, I will post it as well. From 67 FR 54349: THE SPINE Rating * * * * * 5293 Intervertebral disc syndrome: Evaluate intervertebral disc syndrome (preoperatively or postoperatively) 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 results in the higher evaluation. With incapacitating episodes having a total duration of at least six weeks during the past 12 months ................................ 60 With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months ..................................... 40 With incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months ..................................... 20 THE SPINE—Continued Rating With incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months ..................................... 10 Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome 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 intervertebral disc syndrome that are present constantly, or nearly so. Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. * * * * * (Authority: 38 U.S.C. 1155) Many Thanks Rental or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Wow! this rating criteria is open to a broad interpretation. Link to comment Share on other sites More sharing options...
hurryupnwait Posted August 30, 2008 Author Share Posted August 30, 2008 I found this case that explains when the rating criteria change took place, etc. On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a an increased disability rating for failed back syndrome with a history of fusion of L2 to L5, currently evaluated as 60 percent disabling. 2. Entitlement to a total disability rating due to individual unemployability resulting from service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. L. Wight, Counsel INTRODUCTION The veteran served on active duty from March 1953 to February 1957. This case initially came to the Board of Veterans' Appeals (Board) on appeal from an April 1996 rating decision rendered by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In this decision the RO denied the veteran's claim for a rating in excess of 10 percent for his back disability. The veteran testified at a hearing before a hearing officer at the RO in August 1997 and before the undersigned Veterans Law Judge in Washington, D.C., in July 1998. Transcripts of both hearings are of record. In September 1998, the Board remanded the case to the RO for further development. In a rating decision dated in March 1999, the RO granted the veteran a 100 percent convalescent rating based on surgical or other treatment necessitating convalescence for the service-connected lower back condition from November 3, 1995, to June 1, 1996, when a schedular evaluation of 60 percent was assigned; another 100 percent convalescent rating was assigned for the period from August 26, 1998, to March 1, 1999, when the schedular 60 percent rating was restored. The RO returned the case to the Board in February 2003. REMAND There has been a change in the pertinent rating criteria during the course of this appeal. The criteria for evaluation of intervertebral disc syndrome under Diagnostic Code 5293 were amended effective September 23, 2002. See 67 Fed. Reg. 54345-54349 (August 22, 2002). Those rating criteria are substantially different from the previous criteria. Under the revised version of Diagnostic Code 5293, intervertebral disc syndrome (preoperatively or postoperatively) is to evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under Sec. 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 60 percent evaluation is warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome 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 intervertebral disc syndrome that are present constantly, or nearly so. When evaluating on the basis of chronic manifestations, orthopedic disabilities are to be rated using evaluations criteria for the most appropriate orthopedic diagnostic code or codes. Neurologic disabilities are to be evaluated separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be evaluated on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. The Court has held that for the purpose of appeals, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should be applied unless provided otherwise by statute. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). When a provision of the Rating Schedule is amended while a claim for an increased rating under that provision is pending, VA should first determine whether the amended regulation is more favorable to the claimant; however, the post amendment criteria may not be applied prior to the effective date of the change. VAOPGCPREC 3-00 (April 10, 2000). Thus, the new version of Diagnostic Code 5293 is applicable only from September 23, 2002. While the RO addressed the amended criteria in the December 2002 supplemental statement of the case issued in this appeal, the Board is of the opinion that further evidentiary development is required in light of the change in the rating criteria. Specifically, a new neurological examination in necessary to determine the nature and extent of the veteran's neurologic symptomatology related to his service-connected low back disorder. In this regard, the Board notes that the VA physician that examined the veteran in April 2002 stated that his clinical examination revealed no evidence of any lumbosacral radiculopathy. Despite that finding, subsequent private medical records show radiculopathy and steroid injections for pain. A July 2002 treatment record from Dr. Nathan H. Brandon indicates that the veteran had undergone EMG and nerve conduction studies, performed by Dr. Williams on June 28, 2002. Dr. Brandon noted that the studies showed bilateral chronic-appearing multilevel lumbosacral polyradiculopathy involving the right L5 and S1 with no evidence of generalized peripheral neuropathy. A September 2002 treatment record from Dr. Brandon notes findings of lumbar radiculopathy. These private treatment records note that the veteran was a fall risk, walked with a straight cane, used a motorized scooter and walker, and was prescribed a TENS unit. In September 2002, Dr. Brandon stated that the veteran was to be referred to Dr. Dennis Williams for EMG and nerve conduction studies of both lower extremities to rule out diabetic peripheral neuropathy versus radiculopathy. A copy of the studies done in June 2002 are not associated the claims folder. In light of the potential probative value of the studies done in June 2002, as well as any subsequent EMG and nerve conduction studies, they should be obtained. In light of the foregoing, the Board is also of the opinion that a new examination would be probative in ascertaining the nature and severity of all present orthopedic and neurologic manifestations of the veteran's service-connected back disability. Accordingly, this case is REMANDED for the following action: 1. The RO must review the claims file and ensure that all notification and development action required by the VCAA is completed. 2. The RO should obtain copies of the EMG and nerve conduction studies done in June 2002, as well as any subsequent studies, from Dr. Dennis Williams or the facility that performed the studies. 3. Thereafter, the RO should schedule the veteran for VA neurological and orthopedic examinations by physicians with appropriate expertise. The veteran should be properly notified of the date, time, and place of the examination in writing. The claims file must be made available to and be reviewed by the examiners. The examiners should describe the severity and extent of any present neurological or orthopedic manifestations of the veteran's service-connected failed back syndrome. In addition, the examiners should offer an opinion concerning the impact of the veteran's service-connected lumbar spine disability on his ability to function. 4. The RO should then review the claims files to ensure that all development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Thereafter, the RO should readjudicate the issues on appeal. In evaluating the veteran's service- connected failed back syndrome, the RO should ensure that both the former and revised diagnostic criteria are considered (as noted before, the effective date of the revised criteria is September 23, 2002). If any benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case (SSOC) and afford the veteran and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. _________________________________________________ GARY L. GICK Veterans Law Judge, Board of Veterans' Appeals Link to comment Share on other sites More sharing options...
Question
hurryupnwait
Do I use the IVDS rating or the older rating criteria, which I can not find.
Thanks Paul
Link to comment
Share on other sites
Top Posters For This Question
6
3
1
1
Popular Days
Aug 30
11
Aug 29
1
Top Posters For This Question
hurryupnwait 6 posts
rentalguy1 3 posts
Berta 1 post
jbasser 1 post
Popular Days
Aug 30 2008
11 posts
Aug 29 2008
1 post
11 answers to this question
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now