Help

[tck5810]

First, let me apologize for the length of this post, but to me I'm in a confusing situation. I need some advice. I’ve been reading postings on this website for about 18 months and it has helped me to be knowledgeable to a great degree on dealing with the VA. I received a rating of 40% in August 2008. It included 20% Degenerative Disc Disease, post operative (I have had a double ANCF C4-5 in Feb 2007 and a double discectomy at the same level with mass lateral screw fixation in June 2008); 20% Left radial nerve dysfunction post-op; and 10% posterior neck scar, post-op.. This resulted from a worsening neck and left arm condition since an accident during Airborne Training in 1985. I retired from the Army in July 2003, but because of OPTEMPO and a federal civilian job offer that took me to Iraq as soon as I retired, I did not get my VA retirement physical. I know that was not a good idea and as my neck condition worsened I knew that I hadn’t done that, so I figured I would never be eligible for disability. A friend convinced me otherwise, and so in the period between the two surgeries and during a particularly painful period I filed my first claim on-line, which led to the results above.

During my second surgery in 2008, I sustained a nerve injury that gives me continuous pain down the left side of my neck, in my left arm and also my hand. My palm is numb (and to me it seems to be worsening as time goes by and it gets harder to use it when I need any grip at all) and the top of my hand and my lower arm has hyper sensitivity that makes it hurt to most touching. Right after my surgery I work up feeling pain in my left hand which was laying against a bed rail. My surgeon told me that the nerves had snapped when the laminae bones were removed because my spinal stenosis was putting so much pressure on them. He told me that was the source of the pain and sometimes the pain went away in about a year of healing. It’s now 18 months later and the pain has actually gotten worse over time. Between November and December I was home from work (I have a 90 minute driving commute) 4 days because it hurt so bad. Anyway, the pain is still there, I believe because of it I have less range of motion than I did immediately post surgery. I deal with pain on a level of 8-9 daily, and the pain medications I’m given blunt only a small portion of it.

I have had numerous visits back with my surgeon, and have even had a spinal cord stimulator implanted; although it gives me minimal support because by the time I had received it the scar tissue was already too much for them to get up as high as they wanted to put it in my spine. The surgeon has told me there’s not much more he can do. He gave me a diagnosis of Complex Regional Pain Syndrome. I work at a medical research organization, and in checking with them, they also said there’s just not much out there to help it. The nerves are injured and few medications help. Perhaps they’ll regenerate or not. So I deal with that daily, and it has not gotten better.

In September 2008 a friend of mine convinced me that since I had never had the complete VA physical to file again, but this time through a VSO, which I did. I met with my VSO that month and we went through my entire active duty medical record and then she filed the claim. I knew that she was going out on pregnancy leave in two days, but she gave me another person’s phone number who I could work with. As luck would have it, she never came back, and I let the case linger until finally in mid-December I called back and was told that my file was complete but was with the CRDP office at the VA RO. She said if I didn’t hear anything back by this coming week, to call her back. During the intervening time between filing and calling her, I had another physical with the QTC doctor in August 2009, which I expected this time to be more in depth since I had claimed other service connected conditions in my second claim (which was not so much a NOD to the first one, but a complete new filing to me). The second exam was actually shorter than the first and the doctor took no range of motion measurements at all. He had some blood drawn and took a lower back x-ray and sent me on my way. I also was sent to get a barium swallow and endoscopy for my GERD.

That was the last I heard until today when I received my new rating. I want to preface this with saying I’m not trying to be greedy, because I did receive a 70% rating, up from my earlier 40%. (I never felt the pain of the off set, because the Army granted me the CRSC benefit since the original problem started during Airborne School). Here’s what my new rating gives me: GERD 30%, Migraines 10%, Lumbar Degenerative Disc Disease 10%, and Left Radial nerve dysfunction 20%. That adds up to 70%, so I was fine. I read a few pages further and saw that the 20% I had initially received from the first claim for Degenerative Disc Disease, post op would stay where it was for 2 months, but on 1 April it would be reduced by 10%, since the QTC doctor reported I was doing much better and my ROM was better than during my first exam. They only problem was that this rating was not included int he chart of rated conditions, which to me looks like it doesn't even play into the 70% rating. A quick backtrack...I only received a cursory glance on ROM during my QTC exam, and that from across the exam room. Still, I don’t know how he could have even concluded I was doing better given what I told him of my symptoms and the number of times I had been back to see my surgeon post-op; and even the lack of success from the spinal implant.

That 10% reduction I was told would lower my overall rating of 70% back to 60% beginning 1 April unless I filed an appeal. Of course that made me angry just because I know I’m not better than I was when seen by the first QTC doctor, and in fact I think I’m worse as far as symptoms go. The next thing I did was to read both ratings side by side, and then I noticed that neither the degenerative disc disease nor the neck scar are even addressed within the 70% in my second ratings letter. I know that they were both addressed at exam time, because QTC took a picture of my neck scar and had me move my neck.

I understand the VA additive factors so that 50% can add up to only 40% on a rating, but it seems to me that I’m having 10% reduced on a 20% that is not even given to me this second time around. I hope that doesn’t sound confusing. The RO makes note of the 20% deep in the letter but it is not in the chart of ratings, which doesn’t make sense. It seems to me that they should have taken my first rating 40% and added the new disabilities, each separate issues adding to 50%, which would have given me 90%, then if the RO felt a need to decrement, it should have been from that level to 80%. I think I'd have to write another page or two to give the complete picture, and I know this is long already.

I don’t know that I’ve done a good job of describing the history and current issue, but I hope so. To me it looks like somebody started the rating and then someone else picked up mid-stream, deciding to separate out all of my early ratings as individual, then not adding two back in, but taking off 10% from one of the two leftover ratings and then subtracting that 10% of of the 70% to put me at 60% come April 1st. So I need some guidance from some of the knowledgeable folk out there who may have some experience with a problem like this. Where do I go from here. Help!

[Berta]

Did you get any retro on the new award?

If so if I were you I would get an independent medical opinion from a real doctor who specializes in this type of disability.

They will need a copy of the VA exam in which the VA said "since the QTC doctor reported I was doing much better and my ROM was better than d" etc and all other available records.

BTW are you able to work? If you arent working if I were you I would file for TDIU as well as SSA disability.

TDIU is paid at the 100% rate.

Did they consider you for but deny TDIU in the decision?

What reason did they give for denial (unless you are still employed)

Please go to a post called Getting an IMO in the IMO forum here-

it explains what criteria the IMO format must follow.

Odd how they used a crystal ball on the idea that somehow by April you will have dropped in SC percentage-wise.

Sounds like mere speculation to me- (another word for VA BS)

I feel the IMo doctor should also make support statements as to why you cannot work due to these SC disabilities too for the TDIU claim-if in fact you are not able to work and the IMO could cover that too.

I hope amod will move this all up to CLaims Research where more will be able to comment on this.

[tck5810]

Thanks for your repley Berta. Here are the answers to your questions:

Did you get any retro on the new award? Actually the ratings letter says "You will not recieve retro payment because you are also in receipt of military retired pay which is greater than your VA compensation award." they make reference later on to me possibly being eligible for CRSC (which I already knew, because I was receiving that for my prior ratings which totaled 40%, since all were sustained from the accident at Airborne School) and/or CRDP, and that I would hear something from DFAS. They said they're working with DFAS to resolve...we'll see.

If so if I were you I would get an independent medical opinion from a real doctor who specializes in this type of disability. I've got an email into my neurosurgeon who has continued to see me since my surgeries, and an appointment with my primary care doctor. I'm hoping that either one/both would provide me that IMO. I'll also ask my doctor for a consult to go see a regular neurologist if need be.

They will need a copy of the VA exam in which the VA said "since the QTC doctor reported I was doing much better and my ROM was better than d" etc and all other available records. The VFW helped me put together the package that resulted in this most recent rating. They have actually been pretty helpful from the start, and though my representative left, the one who has taken over has seemed like she wants to help. I actually just got off the phone with her. She plans to email no later than Thursday of what she can do to proceed. I wonder if she is able to get ahold of the VA exam quicker than me trying to get it?

BTW are you able to work? If you arent working if I were you I would file for TDIU as well as SSA disability. Right now I'm able to work, and luckily I have a civil service position. There are days when I probably should have stayed home because of the pain (since the 90 minute commute both ways doesn't make it easier), but I've toughed it out and gone in anyway. AS it is, I've only let myself miss about a week in the past year. For my Degen. Disc Disear, in the rating and in the CFR it states the amount of time for "incapcitating episodes" in the last year. For 20% it's at least "2 weeks but less than 4 weeks" and for 30% it's at least "4 weeks but less than 6 weeks in the past 12 months". Do you (or anyone else) have any idea when that clock starts? Is it from the date of initial filing? From when you were seen by the rating doctor? If either of those, it seems like I would have qualified based on my post-surgery recovery period. I was out of work from June 5, 2008 to July 27, 2008, for a total of almost 8 weeks, and I filed on Sept 18th, 2008. Since I wasn't seen by the doctor until the end of August 2009, then I guess those weeks wouldn't count? So does anybody know when that clock starts?

TDIU is paid at the 100% rate.

Did they consider you for but deny TDIU in the decision? No.

What reason did they give for denial (unless you are still employed) Still employed.

[carlie]

Berta,

Your wish - - - is my command - - - lol.

Consider this topic moved.

carlie

[carlie]

bump

[LarryJ]

Hmmmm?

Well, it looks like I just posted some sort of answer to a question very much like this one, not knowing that this subject had already been seen to by Berta.

I think.

Maybe.

Therefor, I am.

:)

[broncovet]

Tck

If I understood your post, you got a rating reduction from 20% to 0% on one of your conditions. The VA has very specific rules on rating reductions that they must follow. One of the rules is that they cant reduce your rating without giving you 60 days notice and a right to appeal the reduction.

If this is the case, You may consider filing a NOD, disputing the rating reduction without VA compliance with the rules for rating reduction. JMHO