Struggling With My Claims---Need Advice

[chiefhouse00]

Greetings

In July 2011, I received my results from a two year long VA claim for a list of problems that were denied or remained the same. I need help in understanding why the C&P examiner used the higher of two ROM measurements in determining my rating decision:

Higher ROM: "C&P examiner noted forward flexion of the thoracolumbar spine was 70 of 90 degrees (normal 0 to 90 degrees), with pain noted at 60 degrees; extension was 10 of 30 degrees (normal 0 to 30 degrees), with pain noted at 5 degrees; left and right lateral flexion was 15 of 30 degrees (normal 0 to 30 degrees), with pain noted at 10 degrees; and, left and right lateral rotation was 30 of 30 degrees, for a combined range of motion of 170 degrees."

Lower ROM: "C&P examiner noted positive tenderness of bilateral paravertebral muscles. Negative left straight leg raise and negative right leg raise; forward flexion of the thoracolumbar spine was 0 to 45 degrees with discomfort; extension 0 to 15 degrees with discomfort; left and right lateral flexion was 0 to 10 degrees with discomfort, and left and right lateral rotation was 0 to 27 degrees with discomfort. These are initially and with repetition and they are limited because of pain."

Here's the original rating decision:

Evaluation of low back pain with mild degenerative changes currently evaluated

as 10 percent disabling (now claimed as back pain; and, degenerative disc disease).

The evaluation of low back pain with mild degenerative changes currently evaluated as

10 percent disabling is confirmed and continued based on the range of motion reported on

VA examination.

VA treatment records document ongoing evaluation and treatment for your low back

condition, and include magnetic imaging results from 2007, which show central disc

protrusion at L5 through S1, with bilateral S1 nerve root impingement. Records also

noted your pain has been so bad at times that you have sought emergent care from outside

providers.

On VA examinations, you related the history of your back condition and the treatment

you have received. You reported constant pain, with associated weakness, fatigue, a lack

of endurance, and incoordination. You also reported flare-ups of pain that occur daily

and last an hour or more each time. You use Lyrica to treat your pain, and a cane to

assist with ambulation. You receive additional pain management treatment which has

included epidural steroid injections, and also use a transcutaneous electrical nerve

stimulation (TENS) unit. You denied any incapacitating episodes in the prior 12 months,

but have had to call in and miss approximately 20 days of work in the past year.

The VA examiner noted forward flexion of the thoracolumbar spine was 70 of90 degrees

(normal is 0 to 90 degrees), with pain noted at 60 degrees; extension was 10 of 30

degrees (normal is 0 to 30 degrees), with pain noted at 5 degrees; left and right lateral

flexion was 15 of30 degrees (normal is 0 to 30 degrees), with pain noted at 10 degrees;

and, left and right lateral rotation was 30 of30 degrees, for a combined range of motion

of 170 degrees. There was no further limitation or decrease in joint function following

repetition due to pain, fatigue, weakness, lack of endurance, or incoordination of the

thoracolumbar spine, but pain was noted. The lumbar spine was negative for any

evidence of edema, ecchymosis, erythema, or ankylosis; but there was evidence of

tenderness over the bilateral paravertebral muscles. Prior x-rays and magnetic resonance

imaging studies were reviewed, and the VA examiner's final diagnosis was degenerative

disc disease of the lumbar spine with herniated disc at L5-S 1.

Based on the range of motion evidence in the most recent VA examination, no change in

the current evaluation of your low back pain with mild degenerative changes is warranted

at this time. A 10 percent evaluation is assigned for forward flexion of the thoracolumbar

spine greater than 60 degrees but not greater than 85 degrees; or, combined range of

motion of the thoracolumbar spine greater than 120 degrees but not greater than 235

degrees; or, or muscle spasm, guarding, or localized tenderness not resulting in abnormal

gait or abnormal spinal contour; or, for intervertebral disc syndrome with incapacitating

episodes having a total duration of at least one week but less than 2 weeks during the past

12 months. A higher evaluation of 20 percent is not warranted unless there is forward

flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60

degrees; or, the combined range of motion of the thoracolumbar spine is not greater than

120 degrees; or, unless there is muscle spasm or guarding severe enough to result in an

abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or

abnormal kyphosis; or, unless there are incapacitating episodes of intervertebral disc

syndrome having a total duration of at least 2 weeks but less than 4 weeks during the past

12 months.

Best Regards

ChiefHouse

[Hoppy]

It sounds like you have a lot of pain problems. You made an estimate of how much work you were missing of 20 days. This has the potential to qualify for a 20% rating. The reason they ask about incapacitating episodes and missed work is because this can be rated. You do not want to estimate incapacitating episodes and you want to count the days of missed work and days you were not working and were still incapacitated. Keep a log of the days you are incapacitated and get a prescription for bed rest to cover those days from a doctor. The trick with the VA which they do not usually tell you is that you need to be under the treatment of a doctor and the doctor needs to give you a prescription for bed rest on the days you miss work or are otherwise incapacitated. I am not sure if this applies to intervertebral disc syndrome only. You need to see if your claimed degenerative disc disease qualifies for a diagnosis of intervertebral disc syndrome. Maybe some folks on the board with back claims can clarify this a little better

Two weeks ayear = 20%

Four weeks ayear = 40%

Six weeks ayear = 60%

Read thiscase

http://www.va.gov/ve...es3/1124904.txt

Cut and pasted from the above case.

However, the assignment of a 40 percent evaluation requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. During the entirety of the appeal period, there is no indication in either the lay or clinical evidence, of any incapacitating episodes occurring in the duration and frequency required for the assignment of an evaluation in excess of 20 percent.

The evidence pertinent to the appeal period extending from February 21, 2011, includes range of motion test results. Specifically, on that date, limitation of flexion to 20 degrees was shown. As there is now evidence documenting that the Veteran has limitation of flexion to 30 degrees or less, the criteria for the assignment of a 40 percent evaluation have been met effective from February 21,2011. However, absent any evidence of unfavorable ankylosis of the entire thoracolumbar spine or of withincapacitating episodes having a total duration of at least 6 weeks during the past 12 months, an evaluation in excess of 40 percent is not warranted for any portion of the appeal period.

Finally if you are serviceconnected for a lower back condition the problems with the upper back need to be shown as secondary to the lower back before they will rate the upper back.

Edited September 5, 2011 by Hoppy

[john999]

The VA has given you all the clues you need for a higher rating.

[jbasser]

Negative straight leg raising test means no problem found. You have nerve pain, you need the word positive.