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

[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?