Range Of Motion

[Alb]

I was awarded SC Lumbar 20% and cervical 20%. According to the regs with the ROM I should be awarded 40% lumbar and 30% cervical. Should I appeal ?? or can I ask for reconsideration to have them look at the C&P ROM results. They used a earlier IMO which was done BEFORE the C&P. (about 6 weeks earlier) They went ahead and used the IMO instead of the CURRENT C&P. How do I get them to use the latest medical information, which would result in a higher award.

[mags1023]

Edited June 23, 2009 by mags1023

[vaf]

Mags1023 hit it right on. You may also want to request another C & P exam to confirm the results of the previous one. Almost two months passed between the two previous exams, during which time your condition worsened. Ask for the reconsideration, but make sure to include the information Mags 1023 discussed.

[jbasser]

You dont have to have another exam. If you havce a copy of the exam and the rater rated it lower that is because they feel they can get by as low as possible.

NOD the award and show them the exam and the regs. That usually brings them around. Ask the rater where he went to medical school as he is making his own interpetation of your exam when is is clear that the examiner stated the correct ranges and according to the regs the rating is wrong.

Circle the regs and hammer the point home.

They do this all of the time because they think you are happy you got a little something.

J

[vaf]

We'll just have to agree to disagree. Of course, in a perfect world, j basser is correct, however, asking a rater in an NOD where he went to medical school, at least in my opinion, serves no constructive purpose and can possibly hurt a claim. It's not a very nice way of suggesting that the rater inadvertently overlooked or misinterpreted the regulations, which might be a better way of putting it.

If the VA wants to schedule another C & P exam, they're going to do it regardless of whether or not the veteran suggests one himself. Hopefully, the evidence he sends in and his request for a de novo review will make this unnecessary.

[Alb]

what is a de novo review? So I should do a NOD on the award and request reconsideration for the lower ROM for the higher award under the law of reasonable doubt and 38CFR regulations. Does this get a response faster than doing a formal appeal? So I can skip the appeal process for now by requesting reconsideration?

[jbasser]

Thank you VAF. In some instances you can catch more flies with Honey. In this instance the rater has lowballed a claim.

Now if it was a condition such as a mental condition where the evidence trail is based on opinions with no exact medical concrete evidence I would do just what you said.

However, a Gnoinometer is an accurate meausrement which is interpeted as exact evidence and here is a listed series of ranges that are published inthe regs for rating purposes.

Physical tests are more exact as we have the use of diagnostic equipment to actually interpet the medical aspects of an exam.

How can a rater use a criteria for a higher range of motion when the actual range is an actual measurement. He must develop a medical opinion based on the test that were given. This opinion is the issue. Where is the rater qualified to lower a range of motion?

We can be nice and politely ask for reconsideration but it is transparent the rating was too low and there is no arguement to be made that is deserves a lower rating for the actual test over rules any other opinion. ( concrete)

This is not a game Veterans filing claims and taking what they get. It is a Game of legal precedent that awards benefits for service connected conditions the Veteran has earned.

Once the Veteran shows they have an in depth knowledge of the regulations and the other side knows it, will the game be played on a basis of a fair and equitable level. (Legal precedent)

J