Help - Help - Need More Help

[carlie]

HELP - I'm not ashamed or shy to ask.

OK - how about this theory.

***** STEP 1

The VARO granted SC at zero percent,for R shoulder Bursitis on Rating Decision dated 6/14/2002,with an effective date of 8-26-1999.

The date on the VA's cover letter to me (with the Rating Decision) is June 20,2002.

REASONS AND BASES:

In the absence of limited or painful motion an evaluation of 0 % is assigned effective the original date of claim, 8-26-99.

***** STEP 2

§ 3.157 Report of examination or hospitalization as claim for increase or to reopen.

(b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.

(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.

***** STEP 3

Keeping in mind now - that in the following C&P -

R shoulder bursitis is ALREADY SC'd at zero % -

zero % due to the absence of limited or painful motion,

date I was notified of this rating was June 20,2002 - just 5 days short

of one year from the date of this C&P (3.157)

(o) Increases

( 38 U.S.C. 5110 ( a ) and 5110 ( b )( 2 ) , Pub. L. 94–71, 89 Stat. 395; §§ 3.109, 3.156, 3.157 )—

(1) General.

Except as provided in paragraph (o)(2) of this section and §3.401(b), date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.

(2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.

C&P dated 7/15/2003

Examining provider: Hirschfield, Jan

Approved By: Dr. Sutton 07/29/2003

REMARKS:

It is my medical opinion that her cervical neck symptoms of pain and discomfort,

and an upper neck, upper shoulder scapula trapezius Rhomboid area is definitely

related to the three traumatic events from her military experience.

(trapezius

[trəpē′zē·əs] Etymology: Gk, trapezion, small tablea large, flat, triangular superficial muscle of the shoulder and upper back. It arises from the occipital bone, the ligamentum nuchae, and the spinous processes of the seventh cervical and all the thoracic vertebrae. It acts to rotate the scapula upward; adduct, raise, or lower the shoulder; and retract the shoulder. rhomboid /rhom·boid/ (rom´boid) [Gr. rhombos rhomb +-oid ] having a shape similar to a rectangle that has been skewed to one side so that the angles are oblique.)

4.59 Painful motion.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.

It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.

Now - will this get me my danged 10 % - with the effective date retro'd ?

carlie

[Berta]

"It is my medical opinion that her cervical neck symptoms of pain and discomfort,

and an upper neck, upper shoulder scapula trapezius Rhomboid area is definitely

related to the three traumatic events from her military experience."

Carlie has the medical evidence established this as associated with the bursitis in any way?

By "Upper shoulder" does the doc mean where the bursitis is?

This might have to be spelled out to them like they are 10 years old.

And BY ALL MEANS send them the exact definitions of medical terms and give the source of definition because the raters do not have a clue on all of the

medical stuff.

"The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."

Did the C & P really cover that?

[LarryJ]

Well, darn it.

It would, 'cept fer one thang. You didn't evidence any painful motion on your C&P. You didn't flop around like a just-hooked catfish, nor did you threaten the examiner with bodily harm if they kept pushin and a pullin on your arm.

Drastic situations call fer drastic action..............................we talkin bout Oscar-winning here, okay?

I guess what I'm trying to say is, if the pain did not limit your range-of-motion, then you're still up the creek without the paddle.

Edited September 3, 2009 by LarryJ (see edit history)

[pacmanx1]

OK Carlie, the only way I see VA awarding you 10% for this condition is if you have treatment records in your possession or in your file for on or around this time proving you were treated for painful motion or limitation of motion. It could be argued that the C & P doctor did not note any painful motions or limitation of motion but the same conditions were treated by a physician and give the dates you were treated. If I am wrong I hope someone would chime in and correct me and help you

sorry

[carlie]

http://www.va.gov/vetapp96/files1/9600868.txt

In a March 1988 rating decision, the RO awarded the veteran

service connection for bursitis of his right shoulder, based

on the veteran’s service medical records which showed a

diagnosis of right shoulder bursitis in service in 1986. A

10 percent disability evaluation was assigned for this

disorder, based on the findings of a January 1988 VA

examination, which showed that the veteran had full range of

motion of his right shoulder, with slight discomfort on

palpation of his right subdeltoid bursa, and complaints of

intermittent aching and pain in the right shoulder.

Pain is stated in the C&P that was ordered after my NOD was filed in a request for increase.

The way I understand the reg as it should pertain to me is,

It is the intention to recognize actually painful, joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint which should be 10 %.

carlie

[jbasser]

Now I get it.

Due to the absence of limited or painful motion.

Your ROM is normal, however you still experience pain.

Break down the reg and use that tatic as your basis.

You medical reports should show the pain. The Examiners I have seen usually state that a person hads a decreased range of motion at whatever degrees with pain starting at whatever degrees.

Maybe you had a faulty exam.

J

[broncovet]

I agree with Carlie, assuming she is quoting the reg correctly, that is, the one about recognizing painful joints at least the minimum compensable rating.

IMHO 10% is the minimum compensable..anything below that is non compensable.

I would point out that if she NOD the decision, I dont think she needs to meet the "CUE" standard..and can rely on the lower non Cue standard.

Even if you filed a NOD and Did NOT list that as an issue in a NOD, the regulations say that the VA HAS to ask the Veteran for clarification in the event the issues of a NOD are unclear.

IMHO unless the VA sent you a letter asking for clarification of the issues in the NOD, then YOU (the Veteran) can "clarify" the NOD any time you want even by adding an issue to the NOD.

I saw this as I recently got a SOC..the SOC did not include all issues! So, I sent my explanation to the SOC (form 9) and clarified that I had filed for 2 issues, not one issue.

If I recall Berta said to NEVER use the VA's SOC. That makes sense to me..if I was on trial I would hardly want to use my adversary's attorney to represent me. So, since the VA does the SOC, I want to, at a minimum, explain MY SIDE of the SOC..not simply have the judge use the adverary's (the VA's side). Yes, I know the VA system is supposed to be non adversarial to the Veteran..and, well, is there anyone here who beleives the VA is not our adversary?

[LarryJ]

http://www.va.gov/vetapp96/files1/9600868.txt

In a March 1988 rating decision, the RO awarded the veteran

service connection for bursitis of his right shoulder, based

on the veteran’s service medical records which showed a

diagnosis of right shoulder bursitis in service in 1986. A

10 percent disability evaluation was assigned for this

disorder, based on the findings of a January 1988 VA

examination, which showed that the veteran had full range of

motion of his right shoulder, with slight discomfort on

palpation of his right subdeltoid bursa, and complaints of

intermittent aching and pain in the right shoulder.

Pain is stated in the C&P that was ordered after my NOD was filed in a request for increase.

The way I understand the reg as it should pertain to me is,

It is the intention to recognize actually painful, joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint which should be 10 %.

carlie

Yup, Carlie, if pain is notated in your last C&P (and forgive me if I missed it, or if I don't look it up right now.....but, I'm to busy being sick. But, yah, if yu have pain noted in your C&P, then you should (should, I said) you should be rated at 10% minimum. MINIMUM! If the pain does not allow you any flexion at all, then it could, conceivably, be rated as equal to the same as a completely ankyloised (completely STIFF) major joint or two mino.......yada, yada. So, according to how MUCH pain and where this pain begins in the ROM measurements as to whether it stays at the minimum of 10% or where on the goniometer it resides.

I'm going to bed..........you should win at least the 10%.........back to your EED.

[carlie]

Praise be to ....

Hadit

Vets that paved the road before me

38 CFR

M21-1MR

USC

VBM

[pacmanx1]

OK, as long as the pain is there. Some times when a veteran file a NOD it is not really rated, it is just rubber stamped with the same stupid decision. I am in the same boat with my EED where I received a copy of VA letter to my private doctor requesting information, my doctor's statement that he treated and diagnosed me at the time but when I filed the NOD for the EED, VA did not even look at what I sent them. I sent them a copy of their on crap and they still denied me. I appealed and the BVA sent it right back to them to reconsider and adjudicate.

Edited September 3, 2009 by pacmanx1 (see edit history)

[Berta]

Yes-the doc mentioned pain in the C & P and of course since it supported the claim the raters never considered it.

This decision sure can be fought Carlie.

Is it the De Luca factor that says they have to consider pain?I will check on that tomorrow.

[carlie]

I sure do appreciate all the help.

You would probably never know it but I have a terrible time staying focused.

I leave town tonight for a funeral and will be back FRI PM

and will be looking forward to your continued help and support.

carlie

[Josephine]

Carlie,

I believe everything has been covered here.

Always,

Betty

Edited September 4, 2009 by Josephine (see edit history)

[cowgirl]

If you the patient 'complains' or 'describes' or 'reports' pain, that should be it. Benefit of the doubt. If you have a injury, you get medical care, its because it got worse. Husband attended exam, what freindly professionalism he heard contrasted with 'snippets of truth' used in the minimalistic exam report produced.

IMO - if there is pain mentioned, that indicates and active problem or even a past problem - not medical here, but know pain.

Tell em you need 10% minimum,

Best to ya, prayers and safe driving,

cowgirl

[Commander Bob]

C&P dated 7/15/2003

Examining provider: Hirschfield, Jan

Approved By: Dr. Sutton 07/29/2003

REMARKS:

It is my medical opinion that her cervical neck symptoms of pain and discomfort,

and an upper neck, upper shoulder scapula trapezius Rhomboid area is definitely

related to the three traumatic events from her military experience.

Now - will this get me my danged 10 % - with the effective date retro'd ?

carlie

Do you have any range of motion issues??

The information you posted, will help many disabled vets looking for research help.

[broncovet]

Sometimes I think with the VA it is better to ask for more than what you want, then "settle" for what they give you. In other words, dont ask for 10%..ask for 50%.

Ask for much more.

Car sales people used to call it "scrape them off the ceiling" technique. Here is how it works. You want to sell the car for $15,000..and the dealer has $4000 invested in the car.

So, the dealer comes back with a price. They tell you you can have the car for $1200 per month. TWELVE HUNDred! That is more than my house payment! I cant afford that! I have to stay under $500 per month.

If we could get u the car for under 500 month, would u drive it home today?

Sure (thinking they would never go down that much)

Congratulations..we worked it out..you bought the car.

By putting an enomourous number in your head, then when you go back to a more reasonable number, $500 per month doesnt sounds so bad. However, if you are thinking

$200 per month, then $500 is the enormous number. By throwing out the $1200 number, $500 now sounds reasonable.

In the same way, if you ask the VA for 50, or even 80%, then let them tell you that 20% is the highest they will give you.

I never suggest you lie..ever..just remember to ASK BIG! You have to factor in what George Castanza called "shrinkage".

[Pete53]

Huh????

I would just ask for the rating and if it was low appeal it.

[cowgirl]

Great discussion, I agree 'ask'. Does the better statement go something like this ? While not specifying the 10%, it doesnt limit it either. It is an appeal, do add the particulars.

example Request increase for xxxx and the highest rating possible for this specific ---------(by name) condition.

Hope this helps,

Best to ya,

Cg

Edited September 4, 2009 by cowgirl (see edit history)

[jbasser]

You dont have to ask for the moon. You need to know enough about your medical conditions and use the provided schedule for rating disabilities as a guide and askk for what the schedule states. That way anything less is a mis application of the schedule.

That is the Key to ratings.

The regs and Legal precedent for an earned benefit, not a gift or grant like the VA thinks it is.

J

[carlie]

All I want is what is allowed by the regs and my own personal medical evidence,

absolutely no more yet certainly.... no less.

carlie

[pacmanx1]

Carlie and jbasser are right, once you know your diagnosis, search the reg. to find what rating matches your condition. If you request 30% and by law and regulation you meet the 10% rating, all VA has to do is deny the claim and give reason that you do not meet the requested 30% rating and they will not consider the 10% which you do meet. If by your diagnosis and the regulation that you meet the requested 30% then VA would have to award you the 30% requested or give reason why you do not. If the veteran does their homework it should work out in their favor even if it has to be appealed. Asking for more than what you are entitled to will not work. Asking for what you feel you are entitled to will work. Also keep in mind that some VA employees feel that veterans are getting free money anyway and we all know this is not the case. Let's not suggest that veterans flood VA with claims that have no real merit, which would just complicate the already complicated backlog.

Separate note, I posted a question "What is the best way for a veteran to get service connection." Some disagreed with my post but it is actually the formula that VA gives to veterans. It states that you apply for a specific rating that you feel that you are entitled to and no more.

IMHO

Edited September 5, 2009 by pacmanx1 (see edit history)