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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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ken1939

Radiculopathy, Condition Or Symptom?

Question

I have a diagnosis of radiculopathy from 3 different C & P exams as well as an IMO with an EMG and an MRI to back it up. Claim denied because radiculopathy is a symtom not a condition. I researched literally hundreds of BVA cases and found not one where a claim was denied or remanded because the diagnosis was radiculopathy. On the contrary, I found dozens of cases where the veteran received as much as 40% for radiculopathy.

Has anyone else had this experience? I had an informal hearing with the DRO when I appealed my first denial (what a waste of time that was) and all he did was schedule me for another exam with the same doctor and got the same results. I am claiming pain in the lower extremities secondary to SC Lumbar DDD (currently at 20%). I have requested a BVA hearing. Thanks.

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The denial if it stated that is grave procedural error. They are not following the Regs. It is time to Kick them.

Here is a excerpt from a claim when they denied my radiculpathy.

A) Radiculpathy is not a symptom, yet a separate entity as a nerve has been compamised by my service connected Lumbar DDD.

According to the title 38 part 4, the effected nerves are to be rated separately. Not doing this will only result in a cue claim and embarrassment to the actual rater. Please re-consider this issue and rate it accordingly to the regulations. It is a legal precedent and not a raters personal opinion. I also would like to see the medical credentials of the person who stated that radiculpathy is a symptom as they are impersonating a medical professional. This issue may be forwarded to the Inspector Generals office.

While you are at it, who is your POA? This person should have caught that crap and stopped it before it got to you.

J

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The denial if it stated that is grave procedural error. They are not following the Regs. It is time to Kick them.

Here is a excerpt from a claim when they denied my radiculpathy.

A) Radiculpathy is not a symptom, yet a separate entity as a nerve has been compamised by my service connected Lumbar DDD.

According to the title 38 part 4, the effected nerves are to be rated separately. Not doing this will only result in a cue claim and embarrassment to the actual rater. Please re-consider this issue and rate it accordingly to the regulations. It is a legal precedent and not a raters personal opinion. I also would like to see the medical credentials of the person who stated that radiculpathy is a symptom as they are impersonating a medical professional. This issue may be forwarded to the Inspector Generals office.

While you are at it, who is your POA? This person should have caught that crap and stopped it before it got to you.

J

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Here is the reg for Spine. Pay attention to Note 1.

Rating

General Rating Formula for Diseases and Injuries of the Spine

(For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes):

With or without symptoms such as pain (whther or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease

Unfavorable ankylosis of the entire spine 100

Unfavorable ankylosis of the entire thoracolumbar spine 50

Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40

Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30

Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 20

Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10

Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

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Thank you J.

From my own research I had come to that conclusion but after being told twice that I was wrong I began to wonder. The exact words in my second denial notice are: " Service connection for nerve pain in bilateral lower extremities is denied because the medical evidence of record fails to show that a chronic disability has been clinically diagnosed. It is noted that symptoms (to include pain and radiculopathy) are not disabilities and consequenly, are not subject to service connection." My first denial notice simply stated that a chronic disability had not been clinically diagnosed without mentioning radiculopathy. Then when I met with DRO and asked for an explanation he said radiculopathy is a symtom not a disability. He then sent me back to the same C& P examiner for the same diagnosis of radiculopathy. That got it off his desk and delayed the process for a couple of months.

My POA is the DAV. I tried working with them when I first began this journey for SC for DDD. Although the DAV is POA of record I found I did much better without them. I went to the BVA in washington a couple of years ago and presented my own case to prove SC back to 1960. The advice from DAV was that it probably couldn't be done. They also advised me not to worry about the percentage until I proved SC. Big mistake.

I just got your second message.

Thanks for the additional info.

Ken

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Ken, what did your EMG say?

J

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