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Chances Of Retroactive Rating, Based On C File Notes Already There


brokensoldier244th

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  • HadIt.com Elder

Rated June, 2002-40% Degenerative disc

Re-evaluated at my request March 2004, no increase DDD, but given 10% Radiculopathy Rt. leg going back to September 2003 because of a change in rating Invertebral disc.

I was looking over my Cfile and contemplating filing for an increase for my lower back for pain, range of movement when I noticed that my 10% was only for 1 extremity. I went back through my service records, clinic notes that I kept, Xray/MRI, C/P from 2002, and private doc notes from 2003, and found more than once I had mentioned both legs/feet radiating with pain/numbness and fatigue. The C and P doc noted right leg in 2002 only, but then I had just gotten out and I didnt' even have my med records with me. He said right leg because is what he checked that day, and I guess in 2002 they didnt rate for radiculopathy with degenerative disc or something since it was granted later retroactively? I don't have the notes or phsical therapy records from 2003 since I had already had a copy of my whole file by that point.

Ive put in a claim for my back, but what are the chances if I provide the prior notes, highlighted and summarized that are already in my Cfile, with my current private doctor's notes worded correctly (since I couldn't get a VA appt anytime soon, even in NE) along with statements from spouse/co-workers about how I move around, that they will:

A. consider my request to grant 10% for my Rt leg bilateral to my already rated left leg as secondary to Invertebral disc syndrome, and

B. that they would go back to September 2003-the same date they granted the first 10%?

Since I have prior clinic notes RE: bilat of the sciatic pain and numbness, could Deluca and preponderance of other evidence prior to the C and P in 2002 help me, or am I too late for retroactive?

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  • HadIt.com Elder

For those of you doing the math, I have 10% for tinnitus, too, but didn't post that as I didn't feel it was relevant-but it makes the math look wierd for my overall rating so I thought id better correct it.

CAS

Rated June, 2002-40% Degenerative disc

Re-evaluated at my request March 2004, no increase DDD, but given 10% Radiculopathy Rt. leg going back to September 2003 because of a change in rating Invertebral disc.

I was looking over my Cfile and contemplating filing for an increase for my lower back for pain, range of movement when I noticed that my 10% was only for 1 extremity. I went back through my service records, clinic notes that I kept, Xray/MRI, C/P from 2002, and private doc notes from 2003, and found more than once I had mentioned both legs/feet radiating with pain/numbness and fatigue. The C and P doc noted right leg in 2002 only, but then I had just gotten out and I didnt' even have my med records with me. He said right leg because is what he checked that day, and I guess in 2002 they didnt rate for radiculopathy with degenerative disc or something since it was granted later retroactively? I don't have the notes or phsical therapy records from 2003 since I had already had a copy of my whole file by that point.

Ive put in a claim for my back, but what are the chances if I provide the prior notes, highlighted and summarized that are already in my Cfile, with my current private doctor's notes worded correctly (since I couldn't get a VA appt anytime soon, even in NE) along with statements from spouse/co-workers about how I move around, that they will:

A. consider my request to grant 10% for my Rt leg bilateral to my already rated left leg as secondary to Invertebral disc syndrome, and

B. that they would go back to September 2003-the same date they granted the first 10%?

Since I have prior clinic notes RE: bilat of the sciatic pain and numbness, could Deluca and preponderance of other evidence prior to the C and P in 2002 help me, or am I too late for retroactive?

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  • HadIt.com Elder

Your'e not likely to get higher than 40 percent for the spine under the rating schedule that came into effect after you were rated. The good news is that you can't be reduced under the new criteria because you're grandfathered.. Familiarize yourself with the criteria for evaluation of the spine. You can't get higher unless you have unfavorable anklylosis of either the lumbar spine, or the entire spine.

As for radiculopathy in the other lower extremity, it's unlikely. Radiculopathy is usually only on one side.

Peripheral Neuropathy is different, however. It's also a presumptive condition. If it were me, I would file a claim for peripheral neuropathy, bilateral, and highlight and tab copies of the records that show your symptoms during service or within one year of your discharge, and ask for an examination and medical opinion as to whether it is at least as likely as not that, if peripheral neuropathy is diagnosed, that those signs and symptoms during service were early manifestations of it. You'd only get it for the other leg, since it would be pyramiding to eval your right leg twice for the same symptoms.

I don't see any possibility for retro in any case. It's been more than one year since your discharge, and the VA doesn't have any evidence that your S/C condition has worsened, since as far as we're concerned it's your back and right leg that are S/C.

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  • HadIt.com Elder

Peripheral neuropathy-presumptive, like within1 year of discharge? i always thought presumptive conditions related to AO and things like that, or am I thinking too narrowly? The right leg is listed under radiculopathy rt. extremity, not peripheral neuropathy, but I googled around and found that radiculopathy can sometimes be in both legs, and ive read it called both, even by vets rated for it, at least according to some sites. That makes it kind of confusing! Sciatic nerve radiculopathy seems to be the way to go vs. neuropathy since it rates higher, at least according to my other rating's wording

Its been some years, due to the degenerative nature I figured it could be the other leg was from this. Ill keep digging around.

Thanks!

CAS

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You are right.

The presumptive regulations of 1996 for Peripheral Neuropathy based on presumption are difficult to rely on ,even with proven AO exposure.

PN is almost always awarded,however, if found to be secondary to an established service connected condition.

This case is unique in that the veteran was awarded for SC of PN:

http://www4.va.gov/vetapp10/files1/1008433.txt

I have found only one other award like it.

Ive put in a claim for my back, but what are the chances if I provide the prior notes, highlighted and summarized that are already in my Cfile, with my current private doctor's notes worded correctly (since I couldn't get a VA appt anytime soon, even in NE) along with statements from spouse/co-workers about how I move around, that they will:

A. consider my request to grant 10% for my Rt leg bilateral to my already rated left leg as secondary to Invertebral disc syndrome, and

B. that they would go back to September 2003-the same date they granted the first 10%?

Since I have prior clinic notes RE: bilat of the sciatic pain and numbness, could Deluca and preponderance of other evidence prior to the C and P in 2002 help me, or am I too late for retroactive?"

Is the request for the bilateral right leg disability clearly mentioned in the "back" claim?

I must have missed something here-

As James said, the rating is determined by the spine rating schedule.I don't know why you would file an additional "back" claim.

However you can claim any secondary or residuals disabilities that it has caused-such as the bilateral peripheral neuropathy -if medical evidence supports the link to the SC disability..

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  • HadIt.com Elder

Under 38 CFR 3.309, "other organic diseases of the nervous system" are presumptive if manifested to a compensable degree within one year of service.

This includes any sort of neuropathy, or even carpal tunnel. There's no need to even involve Agent Orange.

Edited to add: For the conditions under 3.309(a), what that means is that if they manifest to a compensable degree within one year from discharge, we PRESUME that they were caused by service, even if you were never treated for it in service.

Certain conditions have longer presumptive periods. Multiple Sclerosis for example is presumptive if manifested within 7 years.

Other things have no time limit on their presumptiveness. Diabetes and Prostate Cancer for on-the-ground Vietnam vets, PTSD for anyone with a stressor, diagnosis, and nexus, and ALS for ANY veteran EVER.

Edited by JamesBreckenridge
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  • HadIt.com Elder

Thanks, James.

I didnt think AO was related,I just thought that the term presumptive was reserved for certain issues where the proof (AO) may be decades old but serving in that area qualified you. Id never seen it as a blanket phrase.

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