tdiu Low Back Disability Rating

[Irish-7]

I had 6 weeks of doctor ordered bedrest within 12 months of military retirement and filing for disability. I felt that this met the criteria for intervertebral disk syndrome in that I have a bulging disk (L4-L5) and a herniated disk (L5-S1). The doctor's clinical notes from the 2 weeks (01-15 APR 10) and the 4 weeks ( 10 MAY - 07 JUN 10) were turned in 4 times. During my Comp & Pen Exam, I asked the doctor if incapacitating episodes had any bearing on my rating. He did not want to talk about it. I had the C&P Exam narrative mailed to me. The question that pertained to incapacitating episodes was answered "about once per month". I copied the notes (3rd submission) and faxed it to the VAMC deciding my claim. I sent the whole exam, with my corrections to all the mistakes, through my VSO with the VFW to the VA as well (4th time). I was rated 20% for my lumbar spine. The Web Automated Reference Material System (WARMS) states that 6 weeks incap/bedrest is 60%. I did get an overall rating of 90% and have been approved for Individual Unemployability. I don't want to sound like a malcontent, but I really want this corrected. Should I appeal or file NOD for DRO? Perhaps I am misunderstanding something here. There is no way the rater missed this evidence, as it was highlighted in my file. Either I did not meet the criteria, or the VA deliberately ignored this. Any input would be appreciated.

[Garrett]

I need a little feedback. I just had a C&P exam for back strain and the doctor that was performing said he saw where there were two incidents with my back. One in 1994 while in the military and one auto accident in 2011. They did x-rays in 2011 and saw the I had degenerative joint disease in my lower back. I am already rated 20% for both shoulders with degenerative joint disease and right ankle and left ankle 10% each. I was in Desert Storm Desert Shield. Will they at least rate the degenerative joint disease in my back or try to tie it to the accident in 2011 since it was the most recent? Event thought it did not cause the disease. My range of motion sucks. I am currently at 60% total.

 

Thanks, Garrett

USN   

[Pete53]

Welcome to Hadit

[Irish-7]

I am not sure what you mean, Pete53. I have multiple copies of my C-file. I put the record together. I was a Readiness NCO (active duty administrator for an Army National Guard unit). As part of my job, I handled medical records. I was responsible for doing the manual and online Line Of Duty Investigations. I was also the guy that secured the civilian clinical notes, MRI's, surgical reports, etc for my soldiers to support their LODs and to file for disability from the VA. The file that I turned in was over 4 inches thick. I used a multi-section portfolio. I divided the file up as follows: Section 1: Index, VA Eligibility documents, DD 214, Retirement Orders. Sect#2: Civilian Medical File, SECT#3: Line Of Duty Investigations, SECT#4: Retirement Physical Exam, SECT#5 Army Heath Record 1998-2010, SECT#6: Army Health Record 1980-1997. The index referred to color coded tape that I used to mark the injuries that I was claiming as disabling conditions. For example: Low Back was blue, Cervical spine was green, Left Shoulder was purple, etc. These color coded tabs marked the injuries and treatment notes. I thought this system would help the rater establish service connection. Two of the approved LODs specifically stated that my 4 major conditions: lumbar spine/ groin and neck / left shoulder occurred "In The Line Of Duty". Anyway, from the looks of the individual ratings that the VA gave me, I have serious reservations as to whether anyone even read all this material. I opened this topic because I feel that I should have been given a 60% rating for Intervertebral Disk Syndrome for Incapacitating Episodes in that I had 6 weeks of doctor ordered bed rest in less than 12 months before I retired. The VA gave me 20%. I am undecided whether to file a NOD for DRO because I was approved for Individual Unemployability. I was told by 2 VA employees and an attorney that the VA may downgrade my other conditions (out of spite) if I appeal.

[Quaymar]

I would say that, since you are going to get IU. The rating for your back is a moot point as that should get you to 100% anyway. That's how I understand it anyway.

[MrPain7]

C&P examination on 311/2010

Diagnosis: Cervical degenerative disease spondylosis and myelopathy.

Medical Opinion: It is at least as likely as not that the cervical condition is the cause of loss of use of the lower extremities, causing walking limitations.The veteran is not able to perform any gainful employment due to the cervical spine condition.

Diagnosis: lumbar degenerative disk disease, spondylosis and radiculopathy.

Medical Opinion:

It is at least as likely as not that the lumbar condition is the cause

of loss of use of the lower extremity functioning causing walking limitations. The veteran has not been able to work since 1989.The veteran is still not able to perform gainful employment due to his low back condition

I think this opinion would have been in my favor but the regional office ignored or misplaced this report I send a copy of this report

to the regional office in Baltimore and asked fo a reveiw but nothing went down except I found out threw IRIS my claim was received by the BVA in september 2011,along with several other claims dated back to 2005 nothing I can do but wait..........

[Hoppy]

The doctor's clinical notes from the 2 weeks (01-15 APR 10) and the 4 weeks ( 10 MAY - 07 JUN 10) were turned in 4 times.

When was the C&P and when was the claim filed and when was the decision made? June 7 2010 was the last known episode. If the decison was made recently there is over a years time in which you did not report any flares. Also if the claim was filed after the the episodes there is some obscure law that says the increased symptoms must occur during the pendency of the claim. They can service connect you if you have a disability at the time you file. However, if you are seeking a higher rating based on flares of symptoms they might apply the pendency of the claim rule for an increased rating. If the flares occurred during the pendency of the claim then they could have given you staged ratings. 60% for 2010 and a lower rating for 2011. Just because you have a couple flares in 2010 will not get you 60% for the rest of your life. You need to be seen by VA doctors and the reports entered into the computer inorder for the rater to have any chance of seeing current levels of symptoms. If you were going to to a private doctor and you had flares in 2011 you should have submitted those records prior to the decision.

Disc herniation can be asymptomatic or have symptoms that resolve. Unless the doctor stated that the herniation was so severe to prevent any improvement, they can re-evaluate a back condition such as yours at anytime. If you file a NOD they should give you a better explanation of how they made their determination.

Once you get the higher rating continue treatment and obtain ongoing bedrest prescriptions and keep them in case the VA decides to re-evaluate you. I have seen raters who will not accept a statement from a doctor who states that during the last year the veteran required six weeks of bedrest. The rater would not accept a historical recount. The rater required that the doctor write a prescription for bed rest at the time the bed rest was required.

Edited March 19, 2012 by Hoppy