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.

[Irish-7]

Thanks again for your input, Hoppy. To answer your questions, I believe I was rated under Diagnostic Code 5240 Ankylosing Spondylitis as my award letter refers my range of motion as 0-60 degrees. It also listed lumbar strain (5237) and disk dessication (5242?). There are no numbers (Diagnostic Codes) typed anywhere on my decision. I don't think that they would use 5243 (IVDS) in that would be admitting that they read the clinical notes ordering bed rest for the 6 weeks in 2010. I read somewhere in WARMS that the VA is REQUIRED to give the veteran the HIGHER percentage where a condition meets the criteria of multiple codes. No, I did not have bed rest in 2011. That should not have any bearing on my award. I filed for Service Connected Disability a few months before I retired in SEP 2010. I assume that the 12 month period goes back from the date that I filed. The VA decision should have been made on the complete records that I turned in, not the presumption of repeating the treatment in 2011. I felt that I met the criteria as stated in WARMS at the time I filed. Now, if they wait a full year to make a decision, I no longer meet the criteria. Perhaps that is what I am misreading. If(?) the clock goes back 12 months from when they finally get around to deciding your case, not from when you turned in your evidence. Anyway, please don't tie yourself up with it. You have done far more to explain this stuff than anyone that I have asked (VFW VSO, VA County REP, VA Benefit Blog, Wounded Warrior Project). If your example of how the DRO treated previous veterans with the same issue is the norm, then I don't have a leg to stand on. It sounds to me like the DRO in your story was determined to shoot the guy down. I don't know exactly what their powers are, but it appears that this DRO is reading far too much into it. I will end up hiring a lawyer that just does VA cases. Thanks again for your efforts.

[Teac]

Irish,

Another thing the VA does very well is stagger ratings. For example in your case , they could have given you a 60% rating based on the bed rest for a period of time and then reduce it to say 30% or 20% depending on the severity of the disability.

If you could win an appeal arguing that you deserve a higher rating based on the bed rest, it is highly likely that since you had no bed rest in 2011, they would reduce the rating anyway. Now I'm not saying you should not appeal.. what I am saying is that unless you had 12 weeks of bed rest every year since 2010, you will likely end up with a reduced rating. In fact they could if he evidence warrants it reduce the rating to 0%....

[Irish-7]

You folks know the system far better than me. I had some exposure to the VA criteria in helping countless soldiers file for disability. I did their Line Of Duty, pulled the supporting documents from their Army Health Record, secured the required treatment notes/tests/labs or surgical reports from their civilian physicians, then put it together and told them "Send this to the VA. Bring me a copy of the decision when it comes". I was not familiar with the bed rest / incapacitating episodes clause until right before my retirement exam. That question came up on several of the forms for the Army physician that verified my conditions. Honestly, until my case came up, it was my observation that the VA was very generous, highly sympathetic and overtly supportive of my part-time soldier's injuries. When I highlighted the evidence of service connection for my disabilities, I expected the same treatment that all my soldiers received. Looking back at it, I feel as though my rater did not take me to be assisting or expediting the decision of my case, but rather developed the attitude "I'll show this know-it-all". Reality is, the rating that I received for lumbar spine was only one of the disagreements between the VA's criteria and the percentage actually assigned. After 30 years in the Army, I have grown accustomed to following written rules and regulations. I admit that I am having difficulty dealing with these discrepancies and the potential results in challenging them. As Hoppy pointed out earlier, the DRO can further add or read into rules that the VA did not follow to begin with. I feel guilty pursuing the truth in that I was approved for IU and am eligible for the maximum pay and benefits. What a system! I have not even been paid yet, and I am already worried about them taking it back. Anyway, I appreciate everyone's input. At the very least, I have learned not to "expect" or "anticipate" anything. I now know that this will never really be over. I pray for those veterans that are far worse off than me. Thanks again timely replies.

[john999]

I think this is why when you have chronic back pain or any chronic pain condition get to a psychiatrist and discuss depression. If the VA only wants to give you 20% for a bad back you may be able to get an extra 50% for the depression the chronic pain has caused in your life. I have chronic back pain, foot pain and shoulder and neck pain. Game over for most things including work.

[Irish-7]

I have chronic neck and shoulder pain, too. Those were 2 of the other conditions that I feel the VA shorted me on. They gave me 20% for my left shoulder and 10% for my cervical spine. Again, I believed that they would follow the criteria spelled out in the Web Automated Reference Material Systems (WARMS). If they went by their own rules, I would have received 30 or 40 percent for both neck and shoulder. You are correct, I should be seeing a psychiatrist. But, the POS at the VA Medical Center that did my Comp & Pen Exam, said that I did not meet the criteria for PTSD. I admitted that I had nightmares for more than 25 years. He gave me 10% for "Mood Disorder". I am afraid if I pursue some sort of treatment at the VAMC, I will end up on a couch in his office. We did not really talk about combat during the C&P screening. This "Company Man" just beat around the bush until he found some positive things in my life (active with RC church, close to family, etc), then more-or-less said "He's alright". He must have been worried that the VA would make him pay me out of his check if I had PTSD. I am planning on calling my PCM to see if there are other physicians available. I have been putting it off out of fear that the shrink will want me to take some sort of anti-anxiety drugs. I am not doing that. I already take multiple medications for chronic pain, ulcer, high cholesterol, arthritis, etc. I am pretty sure that you cannot mix those medications. Anyway, thanks for your input. I am calling for an appointment this week to ask about several things. I will check out the availability of other "mental health" provider.

[donna68]

Irish-7

Pay-If you got severance pay when you retired the VA will hold your benefits until its recouped.

Shoulder- A 20% for a shoulder is high as shoulders are rarely rated at 20%, because to rate at a 20% it means that you can only raise your shoulder or arm to parallel to the ground or 90 degrees.

Lumbar or Back- As mentioned earlier, a veteran can have IVDS, DDD or DJD and rate at 0%, if there is no pain on motion or no decreased range of motion. If you were entitled to 60% for IVDS when you submitted your claim and they didn’t rate you with the IVDS Diagnostic Code, you have grounds to appeal. It will become a stepped rating, and decrease based on prescribed bed rest. So consider this, if they change the DC to IVDS and you currently rate at a 0% based on the IVDS DC, because you havent been prescribed bedrest, you will eventually be dropped from 60% to 0%. They may have rated you under a different code so that you are at risk of dropping to a 0% based on the IVDS DC.

Mental disorders including PTSD and a mood disorder are rated together, so if you are already service connected for a mood disorder and you put in for PTSD, and they grant it, your rating % will not change just because there is a new diagnosis of PTSD. The rating is based on the mental health symptoms, whether PTSD, anxiety disorder, depressive disorder or a mood disorder. The % will change if your overall condition or symptoms have changed. Advice, since the new text generated system is rating veterans much higher than in the past, submitting a claim for an increase may be beneficial.

Weigh the pros and cons. You are 100% IU now, if you appeal, you can risk getting decreased and no longer qualifying for IU. If you win the appeal, you will still end up receiving the same %. If an actual error (CUE-clear and unmistakable error) was made on your rating decision, you can point it out at any time and they will have to correct your rating back to when the error occurred.

Hope this helps.

Donna