Neck - Loss Of Functional Use

[Charleese]

Hi All,

My husband had his C&P exam on yesterday for his sc neck and sc left knee. As you know he had an anterior cervical discectomy at C3-C4 and interbody fusion of C3-C4 with Bengal cage as a result of a massive cervical disc herniation.

At his C&P exam the doctor stated that because my husband could not hardly move his neck to the right and to left as well as forward and back that he shouldn't be driving because he wouldn't be able to see anyone to the left, right, or back of him. My husband stated to him that he does not do any long distance driving he only does short distance, example around town and that we don't go long distance anymore because he can't sit or stand long.

Do not know yet as to what his degrees or ROM is. Won't know that until he gets copy of C&P report.

My question is because of his range of motion for his neck is that considered Loss of Functional Use. If so would he be rated for it and at what rate? Also would that be considered an SMC.

Thanks in advance for your replies.

[jbasser]

I wish it was but it is not. It is considered arthritis under the code for traumatic arthritis post fusion. Loss of use is a limb, or use of a creative organ.

J

[Charleese]

The reason why I asked this question is because:

This is the subsection that deals with loss of use from 38 CFR subpart B, subsection 4.40 Loss of use:

§ 4.40 Functional loss.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

If this is true then wouldn't his neck be compensated?

[jbasser]

The reason why I asked this question is because:

This is the subsection that deals with loss of use from 38 CFR subpart B, subsection 4.40 Loss of use:

§ 4.40 Functional loss.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

If this is true then wouldn't his neck be compensated?

I see where you are coming from but they look at the neck as a Jjoint. If he had c2 to c7 fused, then maybe since C1 and C2 are already fused.

I am sure there have been some court cases of BVA cases addressing t his issue. You may want to look some of these up to see what the RO or BVA or court said about the issue.

J