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 (see edit history)

[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

[jbasser]

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?

A de novo review is a complete review of the reccord.

You can ask for one, However dont forget your clock is ticking.

The NOD process starts it to tick. You file the NOD, get a respoonse back asking of you want a DRO or a Traditional appeal. You should select a DRO hearing but still fill out the form 9. This protects you in the long term.

An example of the NOD is this:

I disagree with the decision dated _____/______ for the spine.

The reason for the disagreement is the rating was based on a range of motion for _______ %

The actuial range of motion warrants a higher rating according to the regs. ( ________) %

Please see the attached ROM measurements from the C@P exam and the regs to compare them to.

Please reconsider this claim,

[Alb]

The VA sent me a letter stating they denied my claim at first after the C&P I them sent in a NOD to the DRO review. It came back awarded at the DRO level with 20% for back and 20% for neck. I still disagree with their award . Can I ask for reconsideration or do I have to appeal? They sent me a statement of the Case where the 38CFR are out lined. The whole point is they did not use the latest Measurements for the ROM, which would of granted me a higher percentage. What should my next step be?

[vaf]

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

I hope your philosophy works out for Alb. Since it appears he doesn't have "in-depth knowledge of the regulations," I see no point to his making the effort even harder for himself by presenting an acidic-toned NOD.

By the way, do we even know for a fact that a goniometer was used to measure ROM, or did the examiner just eyeball it? I looked over the posts, might have overlooked it, but I don't see any mention of a goniometer used to measure ROM at Alb's C & P exam.

Alb, simply write a letter stating that you disagree with the rating decision, tell the VA why, send in the backup documents previously discussed here, and ask them to reconsider the decision. You have one year to do this, but if you get a reconsideration that again denies the claim, that time you waited for a decision gets deducted from that one year, so keep an eye out for that deadline.

Just my opinion after 15 years at this working my husband's claims, as well as helping other vets work their claims....

[jbasser]

The VA sent me a letter stating they denied my claim at first after the C&P I them sent in a NOD to the DRO review. It came back awarded at the DRO level with 20% for back and 20% for neck. I still disagree with their award . Can I ask for reconsideration or do I have to appeal? They sent me a statement of the Case where the 38CFR are out lined. The whole point is they did not use the latest Measurements for the ROM, which would of granted me a higher percentage. What should my next step be?

Now I see the entire strory. They used 2 sets of ranges. The latest one that gives you a higher rating and an earlier one that gives you a lower rating.

The regs state that they use the one that proximates the most accurate level of disability,

In this case, I would consider filing an increase and ask for an EED to the dat eof t he latest Range of motion. Your claim is called interpetation of how evidence is evaluated and it is a complex issue that the VA will not budge from unless the BVA makes them do it.

File the increase, also ask for a BVA appeal on your claim.

That way your covered.

J

[jbasser]

I hope your philosophy works out for Alb. Since it appears he doesn't have "in-depth knowledge of the regulations," I see no point to his making the effort even harder for himself by presenting an acidic-toned NOD.

By the way, do we even know for a fact that a goniometer was used to measure ROM, or did the examiner just eyeball it? I looked over the posts, might have overlooked it, but I don't see any mention of a goniometer used to measure ROM at Alb's C & P exam.

Alb, simply write a letter stating that you disagree with the rating decision, tell the VA why, send in the backup documents previously discussed here, and ask them to reconsider the decision. You have one year to do this, but if you get a reconsideration that again denies the claim, that time you waited for a decision gets deducted from that one year, so keep an eye out for that deadline.

Just my opinion after 15 years at this working my husband's claims, as well as helping other vets work their claims....

Again, the exam criteria for the spine states ( use a gionometer when measuring ranges of motion)

If one was not used, legal precedent throws it out as an incomplete exam.

I am not a newbie here as I have been on both sides of the fence. As A VA employee and as a Veterans Advocate I have seen some stuff that would make you sick.

This system is so complex that it can lose you and take years for you to resurface.

I have been doing this for well over 15 years and my methods were not my original intentions but have over time evolved by my experiences in dealing with this stuff.

By t he way, I commend you for the job you did on your husbands claim.

John

[vaf]

Right, well, I'd like to have a buck for every veteran out there who received a spine C & P that involved measuring ROM, where a goniometer never saw the light of day, regardless of the guidelines in the Clinician's Guide.

Alb's got a fairly straightforward argument, and should try to keep things as simple, direct (and local) as possible. Asking for a reconsideration might in fact end up in a claim approval, and avoid having to wait approximately two years before the appeal comes up before the Board. Then, the Board might grant it, but it might also remand it back to the VARO or AMC anyway. And what would they do by that point in time? Order another C & P exam, which brings me back to my original point.

[Alb]

A gionometer was used at the C&P. Measured three times for an over all average. ---- I had an independent IMO done before the VA C&P. I submitted this independent medical information with my claim. The VA then ordered their own examination through a C&P. The VA used the ROM measurements that came from my IMO and not the VA C&P, which would increased my claim.

[jbasser]

You know that, I know that, VAF knows that. The VA knows that also. But. you have conflicting information in your exams.

Take it to the BVA and you may be afforded another exam in the form of a Time consuming remand. Just what they want to happen.

Here is what happened to you.

§ 4.7 Higher of two evaluations.

top

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.

J

Edited June 23, 2009 by jbasser (see edit history)