Rating Knee Disability

[nanaeris]

My knee disability had been rated un diagnostic 5260 limitation of flexion which gave me a 20% disability rating. When I asked for an increase in disability, the C&P doctor stated my limitation of extension was 20 degrees which would give me a 30% disability rating. When I responded to the SSOC in June, I told the VA they failed to give me a reasonable explaination why DC 5261 did not apply as the law requires. In August I received a IRIS reply stating my claim was in administrative procedures so a correct decision could be made. On October 5 I was told my case was being prepared for a BVA hearing and I should received it before April. I sent 3 e-mails to the Director of the Waco Regional Office with no response so I forwarded the e-mails to Washington DC. The person in Washington DC contacted the Director in Waco and told her how upset and angry I was because of the lack of response. On December 16th she e-mailed me and stated all my inquires was being forwarded to the appeals team. I wanted to ask her what the inquires have been doing just laying around for the last 8 months. The person on the 1-800 number informed me the other day that my claim has been sent back to a rating specialist to be reviewed as of Janurary 27th. So my question is when two diagnostic code can be used to rate a disability are the VA required to use the higher granting code? By the way if I don't get a clear answer to why DC 5261 is not used instead of DC 5260 I am going right back to Washington DC and ask them.

This is really something to put the people through who are obligated to protect the country.

[Berta]

This is what I believe ypou mean and maybe this reg can help you.

"Disability evaluations are determined by the application of a

schedule of ratings, which is based on the average impairment

of earning capacity. Separate diagnostic codes identify the

various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. "

"Where there is a question as to which of two disability

evaluations shall be applied, the higher evaluation is to be

assigned if the disability picture more nearly approximates

the criteria required for that rating. Otherwise, the lower

rating is to be assigned. 38 C.F.R. § 4.7. The veteran's

entire history is reviewed when making disability

evaluations. See generally 38 C.F.R. 4.1; Schafrath v.

Derwinski, 1 Vet. App. 589 (1995). After careful

consideration of the evidence, any reasonable doubt remaining

is resolved in favor of the veteran. 38 C.F.R. § 4.3."

"claim has been sent back to a rating specialist to be reviewed as of Janurary 27th."

GOOD for You!

Many vets probably don't challenge this reg and they should if their medical evidence warrants the higher rating.

[etihwr]

First I like to know did the doctor doing the exam eye ball the degree of flexability or did he measure it with the proper device! If he didn't properly measure your flexability, there is your appeal. Also, before you do any exam, you should download the exam from the DVA web site. Should the examiner not do everything the DVA requires, you can fax in a request for a second opinion (to the DVA RO). You need to cite the requirement of the examination and what wasn't done to request they do it right. Also, a very common mistake that people make is the DVA wants to know your range of motion w/o pain. You need to go very very slowly. By doing so you will need to stop at the first feeling of pain. This is the start of your disability. If your in pain w/o moving, you shouldn't move. The doctor will try and move your leg but you should let him do it w/o giving you pain medication. Since this is a C&P exam, the doctor will not give you pain medication and I'll bet you'll have a much higher rating than 20%. Also, NEVER, NEVER get up on the doctors table. Always do the exam from a chair. Put both of your legs straight out in front of you. Do not sit in a normal stance were your legs are at a 90 degree angle. I wouldn't be supprised that you would get either a 30% or a 40% rating. What we forget is we need to play by the DVA rules and not by our rules. We also must make the DVA play by their own rules. The doctors take short cuts and don't want to do a proper exam. If they did, most veterans would do better on their C&P exams. Best of luck.

My knee disability had been rated un diagnostic 5260 limitation of flexion which gave me a 20% disability rating. When I asked for an increase in disability, the C&P doctor stated my limitation of extension was 20 degrees which would give me a 30% disability rating. When I responded to the SSOC in June, I told the VA they failed to give me a reasonable explaination why DC 5261 did not apply as the law requires. In August I received a IRIS reply stating my claim was in administrative procedures so a correct decision could be made. On October 5 I was told my case was being prepared for a BVA hearing and I should received it before April. I sent 3 e-mails to the Director of the Waco Regional Office with no response so I forwarded the e-mails to Washington DC. The person in Washington DC contacted the Director in Waco and told her how upset and angry I was because of the lack of response. On December 16th she e-mailed me and stated all my inquires was being forwarded to the appeals team. I wanted to ask her what the inquires have been doing just laying around for the last 8 months. The person on the 1-800 number informed me the other day that my claim has been sent back to a rating specialist to be reviewed as of Janurary 27th. So my question is when two diagnostic code can be used to rate a disability are the VA required to use the higher granting code? By the way if I don't get a clear answer to why DC 5261 is not used instead of DC 5260 I am going right back to Washington DC and ask them.

This is really something to put the people through who are obligated to protect the country.

[nanaeris]

The doctor did use the measuring instrument and he did get a measurement before the pain measurement. He also stated the knee disability had a severe impact on my job. I am a administrative assistant now because of my knee disability which requires me sit with my knees bent. He wrote all of this in his summary. I think he did a thourgh exam and did it by the book. He also took the time to go over my C-file and wrote every incident that pertained to my knees in his report. He did a mri on both knees and wrote everything down in his report. The mri showed the partial meniscus rermoval and I didn't know that this received a seperate rating so I included it in my answer to the SSOC. This has been going on now for 31/2 years I sometime think it would have been better to just let it went directly to the BVA. I still can't get an answer on how much longer this is going to take. Any estimate?

[bballr4567]

Good luck! Im still dealing with a pitiful C&P Exit exam that not only set back my knee claim but also my back claim. Its been almost a year since I had knee surgery to "fix" my issues and almost two years since my ETS date. Its pitiful how slow the VA acts when veterans truly need their help.

[WYnWn]

I'd like to nominate the Waco RO for Most Innovative Solution to pesky claims for the first quarter of this year.

After filing a motion for Cue, in June of 2010 CUE was admitted. However, it was then treated as a routine claim, not a motion for CUE.

I was scheduled for a C&P by a PA who led me to believe he was an MD.

I heard nothing for over a year. Then I received a letter scheduling a second C&P. The exam was set in Ft. Worth at 3 pm. Due to the distance, the time, and the location, and driving difficulties, I called the number on the letter. I spoke with an individual who graciously rescheduled the exam for Dallas and cancelled the Ft. Worth appointment.

I went to the exam in Dallas in July, 2011, and, two days after the exam, an MRI scheduled by the examiner. Seven months later, I still had heard nothing so I asked my rep to check. He told me the RO showed I had cancelled the appointment, but that if I was willing to reschedule they'd work on my claim again. Fortunately I had saved the emails with my rep in which I'd informed him of the letter and the change. He remembered and notified the RO.

Again, the RO apparently allowed the file to sit. In December, 2011, I again asked my rep to check. The RO again stated I'd cancelled the exam and if I was willing to rescedule it, they'd work on my case. I also signed the waiver and sent documentation in a request for expedited adjudication (January, 2012). By February of 2012, the file still had not been sent with apparently no action yet taken by the RO.

On February 29, I received a Supplemental Statement of the Case again accusing me of not reporting for the 2nd C&P, despite the fact that the results of the MRI, requested by the examiner, could be found with a search of the VA information system. I also had requested and received copies of written results of the MRI, though no one could find the clinical exam notes. The SSOC cited 3.655 and threatened arbitrary denial of the claim.

I located a management analyst in the C&P department who was able to locate the missing information within 24 hours. He notified my rep, who in turn notified the RO; the RO required me to submit a new Form 9. Who knows who's doing what to whom and how many times at this point.

So, the Waco RO gets the nomination for creativity, maximization of irresponsibility, redirecting blame for failures onto the claimant, clever innovations in claims processing, and might even win awards at the national level if they try really hard, or at least a part-time position at the local college teaching denial and accusation 101.

[cooter]

nanaeris...I don't know if you could use this as proof of their own policy or not, but here it is.

General Counsel (022)

Coot