"bilateral Factor" Question

[bufloguy]

Hello, I've been reading your forum for a few months and finally decided to register.

On my leaving military service in '91, I was awarded SC bilateral "post traumatic" Plantar Fasciitis at 10%. I have been to the VA hosp for treatment (orthotics & injections) ever since. I had both knees scoped 3 years ago, due to pain (didn't help much). Still have a lot of pain in my knees. The foot dr. suggested that the problems with my knees were most likely caused by the plantar fasciitis, so I filed for the knees as secondary to my sc bilateral Plantar Fasciitis. Long story short. . . I was awarded:

10% Left knee strain, osteoarthitis & 10% Right knee strain, osteoarthitis, but not as secondary to feet, but due to a car accident that occured while I was active duty????

Now my question is . . . What is the Bilateral Factor that I have seen mentioned in this forum? I am SC'd bilatteral for feet @ 10%, why not left and right? Does 10% for both feet sound right? Also, why would the knees be listed as seperate @ 10% and not bilateral? Thanks in advance!

[praned1983]

Has any body ever got a bilateral factor for 10% tinnitus. I just got my hearing test done and I look on myhealth.va.gov and notice he add in the report that I had bilateral tinnitus from years of ringing in the ears. I been back from Afghanistan 4 years now and I was thinking the ringing was normal but an veteran friend of mine told me about it so now I could possible be rated at a minimal of 80%. I wish I knew about this 4 years ago.

 

So know my disabilities look like this 

VA dis rating.docx

[Berta]

Welcome here-

In my opinion "bilateral" is a VAOLA cop out of two proper and separate awards-

still- I dont write these regs-

The 30 % you get-

Are they adding up each of the 10%s above?

Are they saying one knee is due to the initial condition and the other is 10% due to the accident?

Also-do you feel this rating is correct?

do you fit into the next higher level of rating per the Schedule of Ratings for the knees?

Did they raise the "Deluca factor" in their decision as to the pain you have?

What was the date of this decision and did you NOD it yet?

Edited October 8, 2008 by Berta

[bufloguy]

Berta,

Thanks for attempting to answer my question! I guess I'm a little confused about the bilateral dx. Why would my feet be rated bilateral 10% as opposed to left foot 10% and right foot 10%, or bilateral knee condition instead of being rated left knee 10% and right knee 10%. I haven't filed a NOD, as I am still confused by the bilateral factor.

The 30 % you get-

Are they adding up each of the 10%s above?

DECISION:

1 . Service connection for left knee strain, osteoarthritis is granted with an evaluation of 10 percent effective April 7,2008.

2 . Service connection for right knee strain, osteoarthritis is granted with an evaluation of 10 percent effective April 7, 2008.

3. Evaluation of post traumatic plantar fasciitis, which is currently 10 percent disabling, is continued.

Are they saying one knee is due to the initial condition and the other is 10% due to the accident?

(Left Knee)

The VA examiner commented that based upon a thorough review of your claims folder, it is not as least likely that you bilateral knee condition is related and secondary to plantar faciitis.

It is more likely that per the history of you it is as least as likely as not your left knee was injured by the motor vehicle accident that occurred in 1999 while on active duty, which required medical attention and continue to be bothersome until the present time. You had this onset while on active duty. You have a present diagnosis and thorough history as the nexus of the two. The examiner further commented that your history of significant plantar fasciitis, which causes abnormal weight bearing permanent aggravated your left knee condition.

(Right Knee)

The VA examiner commented that based upon a thorough review of your claims folder, it is not as least likely lhat your right knee condition is related and secondary to plantar faciitis,

You have a present diagnosis and thorough history as the nexus of the two. The VA examiner stated that it is very reasonable, that as a result of your left knee condition you have favored it and it has developed a right knee condition and it is as least likely as not your right knee condition is secondary to potential service connected left knee injury that was incurred in 1999. The rationale for this is because of abnonnal weight bearing, loading of the joint would lead to abnonnal biomechanical and biomechanical changes to the particular cartilage leading to thinning, softening. fibrillation, fissures, ulcerations, erosions of the articular cartilage further leading to subchondrol bone changes including sclerosis, subchondrol cyst, ostophyte changes and to the joint space narrowing that is present.

The examiner further commented that your history of significant plantar fasciitis, which causes abnonnal weight bearing permanently, aggrivated your right knee condition.

So in a nut-shell, issues with left knee caused by car accident, issues with right knee secondary to left knee condition, aggrivated by bilatteral foot condition. I am aloso experiencing a lot of right hip pain, and lower back issues.

Did they raise the "Deluca factor" in their decision as to the pain you have?

No mention, other than I experience frequent pain.

[Berta]

They rated the knees separately-due to separate reasons medically- if they had bilaterally rated the knees it would be only the single bilateral rating-

so in that respect you are ahead of the game with one of the 10%s-

I would think that the bilateral pes Planus definitely would aggravate the SC knees-

It seems VA covered that here:

"The examiner further commented that your history of significant plantar fasciitis, which causes abnonnal weight bearing permanently, aggrivated your right knee condition"

But What about the left knee aggravation-

"The foot dr. suggested that the problems with my knees were most likely caused by the plantar fasciitis, so I filed for the knees as secondary to my sc bilateral Plantar Fasciitis."

Makes sense to me- did this doctor document what he said and does VA know what he said?

The Bilateral FActor was challenged by many vets vets during Smith V Nicholson-

there premise was as sound as what you mean-

VA only awards for example 10% for bilateral tinnitus-

but it usually affects both ears and not one-

this case tells why:

http://www.va.gov/vetapp08/files1/0804621.txt

In your situation the VA could make a higher bilateral award-

http://www.va.gov/vetapp08/files2/0809863.txt

this claims shows how.

"am aloso experiencing a lot of right hip pain, and lower back issues."

These issues should be raised as secondary to your SC disabilities-

EVen with a low rating they could in time cause you to get a higher rating- as I mentioned before I posted a link here to a BVA case where th vet went from 10% bilateral pes planus to 100% TDIU due tio the aggravation of the initial SC foot condition to his knees,hips, and back.

They rated the knees separately-due to separate reasons medically- if they had bilaterally rated the knees it would be only the single bilateral rating-

so in that respect you are ahead of the game with one of the 10%s-

I would think that the bilateral pes Planus definitely would aggravate the SC knees-

It seems VA covered that here:

"The examiner further commented that your history of significant plantar fasciitis, which causes abnonnal weight bearing permanently, aggrivated your right knee condition"

But What about the left knee aggravation-

"The foot dr. suggested that the problems with my knees were most likely caused by the plantar fasciitis, so I filed for the knees as secondary to my sc bilateral Plantar Fasciitis."

Makes sense to me- did this doctor document what he said and does VA know what he said?

The Bilateral FActor was challenged by many vets vets during Smith V Nicholson-

there premise was as sound as what you mean-

VA only awards for example 10% for bilateral tinnitus-

but it usually affects both ears and not one-

this case tells why:

http://www.va.gov/vetapp08/files1/0804621.txt

In your situation the VA could make a higher bilateral award-

http://www.va.gov/vetapp08/files2/0809863.txt

this claims shows how.

"am aloso experiencing a lot of right hip pain, and lower back issues."

These issues should be raised as secondary to your SC disabilities-

EVen with a low rating they could in time cause you to get a higher rating- as I mentioned before I posted a link here to a BVA case where th vet went from 10% bilateral pes planus to 100% TDIU due tio the aggravation of the initial SC foot condition to his knees,hips, and back.

[Berta]

forgot to ask- how much time do you have left to NOD the decision?

If you have time left you could ask for a reconsideration instead- but watch out for the year NOD clock-

so that if they do not resolve the reconsideration request with year after decision- -you can file the formal NOD on time.

Some vets do both in same letter to the VA-

If so clearly put in CAPS the Formal NOD part but then state in Caps that this is also a request for reconsideration.

Do you have a service officer?

[bufloguy]

No service officer yet, I had scheduled an appointment with one of the State Reps, but she cnancelled the appointment the day before, after waiting to months. I'm not sure who to go with. I live in the Buffalo area, and all the vets I know, say all the so's the have delt with aren't worth much, so I've filed on my own.

I received the decision for the knees about 10 day's ago.

Do you think I have grounds for a NOD or reconsideration, is so, under which grounds?

Thanks!