Rated For Lumbar Spondylolisthesis W/o A Code

[hurryupnwait]

Do I use the IVDS rating or the older rating criteria, which I can not find.

Thanks Paul

[hurryupnwait]

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

[rentalguy1]

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)

[Josephine]

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

[hurryupnwait]

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.

[hurryupnwait]

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