C&p Exam Wording

[lcplcookba1]

I found this statement several times in my exam, mostly referring to Pain or difficulties doing something "The examination neither supports nor contradicts the Veteran's statements describing functional loss during flare-ups." Does the benefit of the doubt go to the veteran since the bar is set to 51% whether or not its true. Also, As with repetitive use of an injury just because the doctor wasn there to witness the pain does the rater assume it never happens?

[Navy04]

The VA should give the Vet the benefit, but you never know with the VA. They are always looking for a way to screw or low ball us. Good luck

[SeattleShay]

Since 1984, the VA has never given me the "the benefit of doubt".

But then that is Seattle...m

[Berta]

There is probably more to that statement in the rest of the C & P exam results.

The De Luca factor comes into play when pain is involved in this way:

Ratings for a joint based on limitation of motion require consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. In other words, ratings based on limited motion do not ipso facto include or subsume the other rating factors in §§ 4.40 and 4.45, e.g., pain, functional loss, fatigability, and weakness. Thus, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Also with any form of arthritis, painful motion is factor to be considered. Painful motion of a joint with peri-articular pathology is to be at rated at least at the minimum compensable rating for the joint. 38 C.F.R. § 4.59."

http://www.va.gov/vetapp12/Files4/1226089.txt


Broncovet posted a link to an explanation of De Luca here:

Can you scan and attach here the entire C & P exam? (Cover C file, name, address first)

[Berta]

sorry- I forgot you did post what appears to be results of multiple C & Ps here:

I had problems reading them. and am sure not the ROM expert so others will chime in

in part:

"OPINION: Veteran's sleep apnea is less likely as not caused by chronic
bronchitis.
RATIONALE: Chronic bronchitis is not well known cause of OSA. There is no
evidence that his OSA is caused by chronic bronchitis.

Does the Veteran's respiratory condition impact his or her ability to
work?
Yes
Describe impact of each of the Veteran's respiratory conditions,
providing
one or more examples: Unable to engage in strenuous activities.
****************************************************************************

16. Functional impact
---------------------
Does the Veteran's thoracolumbar spine (back) condition impact on his or
her
ability to work?
[X] Yes [ ] No
If yes describe the impact of each of the Veteran's
thoracolumbar
spine (back) conditions providing one or more examples:
Unable to stand or walk for prolonged periods of time. Limited
lifting or bending capacity."

from

Is this all for a TDIU claim?

Edited January 30, 2015 by Berta

[lcplcookba1]

Can you scan and attach here the entire C & P exam? (Cover C file, name, address first)

Who?

[lcplcookba1]

Is this all for a TDIU claim?

Sort of, The nuropathy of both feet, CODP, back ddd, right leg, rt foot so yea I think it looks like the rom for the back should rate at 40 and the bronchitis FEV-1 should rate ate 30 combined with all other rated SC issues gives a combined rating of 80

Edited January 31, 2015 by lcplcookba1