What Is Best Way To Request Secondary Compensation

[toddt]

Was granted 30% for scar as a result of surgery for adenocycstic carcinoma. Surgery was radical neck dissection - which left me with limited range of motion of my right arm (due to shoulder muscles being removed). Attempted to bring this up at my C&P exam but the doctor didn't do anything about it.

Can I request another C&P exam for limited motion? If so, how would that request be made? Or,

do I need to appeal via a NOD stating that the doctor should have tested me for range of motion?

[john999]

Get a medical opinion that your secondary condition is result of your primary decision from either a VA doctor or private doctor. I have gotten SC'ed for quite a few secondary conditions due to DMII. In all cases I had an opinion from a doctor that the secondary condition was at least as likely as not the caused by the primary condition. Your doctor needs to explain the rational of his opinion and explain why the two conditions are cause and effect. You don't want just a note in the record. You want an opinion that makes the case for primary and secondary connection. It is common knowledge that PN is secondary to DMII, but if your doctor does not say it then it is not so to the VA.

John

[Berta]

John is correct....

Toddt

I assume the adenocycstic carcinoma is SC and rated separately from the 30% you recently got for the surgical scar.

“Surgery was radical neck dissection - which left me with limited range of motion of my right arm (due to shoulder muscles being removed). “

I also assume this was a potential possible result of the surgery?

The third post here in this link indicates limited range of motion from this type of surgery might improve with physical therapy.

http://csn.cancer.org/node/252118

So I am thinking this limited ROM might well be a normal consequence of this type of surgery and not due to any medical error.

Still it appears you didn't even have a ROM done at the C & P exam.

Did you request not only a rating for the scar but formally claim the actual residuals from the surgery?

The residuals would have to be at a ratable level as within this BVA decision:

3.  The criteria for a disability rating higher than 30 
percent for residuals of a radical neck dissection are not 
met.  38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 
4.73, Diagnostic Code 5322 (1994). 

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp95/files4/9517497.TXT

In this case however, the BVA granted under 1151 as the veteran had not signed a consent form:

ORDER

Compensation benefits under the provisions of 38 U.S.C.A. 
§ 1151 for the residuals of a total laryngectomy, left 
modified radical neck dissection and right modified radical 
neck dissection, performed on June 18, 1999, to include 
injury to the right spinal accessory nerve with right 
trapezium weakness and limited range of motion of the right 
shoulder, and damage to a nerve in the veteran's neck which 
limits movement of his left shoulder, are granted.”
and “  As unequivocally set forth in 38 C.F.R. § 17.32(d)(1) and (2), informed signature consent must be obtained by VA before performing surgical procedures of this nature, and that 
written consent must be filed in the patient's medical 
records.  In this case, there was no substantial compliance 
with the requirements of § 17.32 because there is no 
documented evidence of signed informed consent in the 
veteran's file for the June 18, 1999, surgery.  See 38 C.F.R. 
§ 3.361(d)(1)(ii) (to determine whether there was informed 
consent, VA considers whether healthcare providers 
substantially complied with requirements of § 17.32). 
FV=http://www.va.gov/vetapp08/Files1/0803993.
“  
“ As 
unequivocally set forth in 38 C.F.R. § 17.32(d)(1) and (2), 
informed signature consent must be obtained by VA before 
performing surgical procedures of this nature, and that 
written consent must be filed in the patient's medical 
records.  In this case, there was no substantial compliance 
with the requirements of § 17.32 because there is no 
documented evidence of signed informed consent in the 
veteran's file for the June 18, 1999, surgery.  See 38 C.F.R. 
§ 3.361(d)(1)(ii) (to determine whether there was informed 
consent, VA considers whether healthcare providers 
substantially complied with requirements of § 17.32). “ 

This claim might be more like yours. This is what we call a Fenderson staged rating claim.

In this case the VA gave her an extensive C & P 'muscle' exam.

“The rating criteria pertaining to muscle group injuries were 
amended effective July 3, 1997.  According to VAOGCPREC 3-
2000 (April 10, 2000), the Board is to apply the criteria in 
effect prior to the amendment for any period prior to the 
effective date of the regulatory change.  For the period 
after the effective date of the regulatory change, the Board 
is to apply whichever criteria is found to be more favorable 
to the appellant.  Therefore, in this case, the older 
criteria will be used to evaluate the veteran's bilateral 
radical neck dissection residuals prior to July 3, 1997 and 
both criteria will be relied on for the period after July 3, 
1997, as neither is more favorable to the appellant.”

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp00/files3/0023556.txt

I suggest that you look up the diagnostic code they used for the decision and then go over the VA Schedule of Ratings here at hadit for radical neck dissection and residulas to see what your medical evidence would warrant.http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=c130ec487ea61b8a40ad0836188b94bc&rgn=div5&view=text&node=38:1.0.1.1.5&idno=38

I thin you need toi go to Subpart B , this link is a little intimidating at first, but well worth studying it when a rating is in question.

You certainly should have had a ROM, in my opinion, if the ROM was required on the C& P exam for the claimed residual disability in addition to the surgical scar.

Otherwise you would have to claim any residuals ,other than the scar, formally as secondary and an IMO would help with that.

The IMO doctor will need copy of that C & P exam, of the decision, and copy of your VA med recs.

[TiredCoastie]

But the vet had one or more muscles removed, Bertha, so not sure PT will bring that ROM back around very well. Maybe a little...

This could be a case in which you didn't claim enough conditions. The VA apparently has the responsibility of rating conditions they find which you don't claim. But if you don't claim it, there's a reasonable "out" for them to not rate it so the doc didn't check it. The frustration is that, of course, you have limited ROM and any doctor doing an exam ought to have noted that. Did the written response from the RO discuss your ROM? Have you been able to obtain copies of the C&P notes?

Without any additional facts, it seems like you have two basic options in my limited experience since it seems that you're claim is completed with a 30% grant (congrats!):

1. File a NOD discussing the lack of scope of the C&P and provide additional medical evidence from your doc, like John stated above, and make them review their procedure and decision. This option preserves your options to go to BVA if your RO doesn't do the right thing.

2. File another claim for the loss-of-ROM condition as a secondary condition and direct result of the surgery.

The prevailing opinion on this site seems to be to file a NOD, and in my limited experience, this is the best route. If you file a NOD, the RO will revisit your C-file and claim decision, so they could fix it before having to send it to DC.

[Berta]

"But the vet had one or more muscles removed," yeah you make a good point TiredCoastie , so wouldn't the removal of muscle tissue (needed for any normal range of motion, also be a secondary residual disability?

After I made that reply I kept thinking of the famous Myler Derwinski CUE claim.

I have often mentioned that claim here over the years.

The point of Myler was that he had muscular involvement of a SC and the VA SRD has quite a bit on how they rate muscular injuries or loss,

That can cause extremity weakness as well.And in the case of a prominent arm or hand, it could even cause of loss of substantial employability,depending on how serious it is.

Damage to muscle groups is something we dont discuss much here but can provide a higher rating if the VA failed to address those factors.

Myler in a nutshell.

Myler had a GSW to his thigh. The gunshot went right through him.

The court called it "thru & thru GSW in anterolateral thigh" .(1)

“On November 24, 1953, appellant received a 10% rating for a gunshot wound to his right leg; "PENETRATING GSW RIGHT THIGH, HEALED, MUS GP. XIV, MOD." R. at 69. “ )2)

“On August 18, 1988, the BVA awarded him an increase from 10% to 30% for the residuals of a gunshot wound of the right thigh.”(3)

Myler years later filed a CUE claim on the rating.

“In its decision of August 18, 1988, the BVA properly applied the regulations to the facts of this case and awarded this veteran a disability rating of 30%. The failure of the rating board to have done the same thing in its rating of November 24, 1953, was "clear and unmistakable error". 38 C.F.R. ù 3.105(a). Therefore, we REVERSE the BVA decision of June 7, 1990, which upheld the VA's denial of "clear and unmistakable error" and we REMAND with instructions that the veteran's rating of 30% be given "the same effect as if the . . . decision had been made on [November 24, 1953]." 38 C.F.R. ù 3.105(a) (1991). “

It is so ordered.(4)

1,2,3,4 from I think the court was called COVA then

No. 90-1098

Bryan L. Myler, Appellant,

Edward J. Derwinski,

Edited February 1, 2014 by Berta

[toddt]

First let me thank you for your replies.

My request for compensation regarding the carcinoma section of my claim was stated like this:

"Adenoid cystic carcinoma believed to have been caused by agent orange.
Service aboard the USS Vancouver (LPD-2) in Viet Nam from February 1968
through August 1968. Developed a lump in my right submandibular gland
mid 1969 checked by a doctor and referred to Oak Knoll Naval Hospital,
Oakland, California for a biopsy. This biopsy was performed in September
1969 and it was determined to be adenoid cystic carcinoma. They immediately
preformed a right radical neck dissection. I was in ICU for several weeks
and remained in the hospital almost two months."

As you can see I did not mention loss of range of motion. One strike against me, I just assumed the VA would direct the evaluating doctor to know what to look for.

I have found a case where the vet had a left radical neck dissection and was awarded 30%. http://www.va.gov/vetapp02/files01/0204097.txt The only difference I see is that mine was my right side.

In reviewing the notes from my C&P exam under the heading "Scars/Disfigurement" Section III: Miscellaneous

1. Limitation of function/other conditions

Do any of the scars (regardless of location) or disfigurement of the head,

face, or neck result in limitation of function? NO"

Would this be the basis of a CUE?

[Berta]

I don't see a CUE here. at this point.....

We have plenty of CUE info in our CUE forum.....

Your ship is on the VA AO Ship's exposure list but it isnt on the presumptive AO cancer list...however you definitely had this manifested in service....just wanted to clarify that if anyone noticed this is not a AO presumptive.

Did you claim any specific residuals to the surgery and cancer or did you just claim the scars?

My point on the Myler CUE claim was that Muscular involvement has it's own criteria in the VA Schedule of Ratings if it is a residual from any other SC disability.