Secondary Condition; Can I?

[propp3]

I am rated 20% for my back condition...over 20 years now. Originally, my rating was 10% for muscular low back pain but having 2 back injuries in-service, an L3 fx, spondololothesis at L5/S1 documented, I appealed. The VA then increased my rating to 20% after the BVA appeal, and labeled it IVDS/intervertebral disc syndrome, at L5/S1 with degenerative changes. That was 1995. They never found the old L3 fx, but there was also evidence of a T12 compression fx on film, as early as my first C&P exam, Jan 1992...less than 60 days after I'd been discharged after 8 1/2 years active duty.

Later, the old L3 fx showed on film, as well as an L2 crush fx,(1997 & 1999). Then, a T11 compression fx(as well as the older T12) showed up on and MRI(2001). In 2014 I had films and another MRI at my own insistence(the VAMC said there was no need) which pretty much shows all of the above, plus new compression fx's L3, L1, T6, and facet hypertrophy and the start of foraminal stenosis at L4/L5, and L5/S1. I've also had sciatica in my left leg for near 20 years.

I asked that my rating be increased, filing in July, and got a new C&P exam in oct 2014. In Jan, 2015 I rec'd a letter denying an increase. The statement of the case now labels my condition as degenerative disc disease, L5-S1, lumbar spine, with radiculopathy left lower extremity, as 20% disabling...continued(but no increased rating). I've never been rated for the radiculopathy, the sciatica, etc...that was the point of asking for the increase...the sciatica, the new findings over the years showing all the new compression fx's, etc.

I composed a reply/argument and some additional evidence asking for BOTH, a reconsideration of their decision AND a BVA appeal. I asked(using the duty to assist) for the VA to obtain all my previous films(even those taken in-service) and send to the local VAMC, and for a comprehensive comparison study to fully document the changes over the past 20+ years: body loss height, demineralization, etc.

Am I going about this wrong???

Should I be seeking a new claim, set of claims, etc?

I mean, should I be trying to open a new claim for sciatica...DJD of the lumbar spine....DJD of the thoracic spine(because of all those new compression fx's) ? I know the VA treats the thoro-lumbar spine as 1 segment for measuring using the general formula for rating ROM.

BUT, I've always been rated by the VA for the changes/disability at L5-S1...the lumbo-sacral spine(and the lumbo-sacral articulate).

The 38CFR calls the LS spine a 'minor joint' for ratings purposes. But in other parts(The Joints) it also calls both the Lumbar and Thoracic spine/s 'minor joints, treated as major joint'...presumably for rating under arthritis, degenerative or traumatic.

I've got clear cut x-ray/imaging showing: L5/S1 changes(for which I'm rated)...AND...degenerative/arthritic changes and compression fx's in both the lumbar, and thoracic spine.

Advice? Would the VA call any new claim an attempt to pyramid? How would I show DISTINCT manifestations of each, as a separate disability...especially since the general formula treats the entire thoro-lumbar spine as one segment in measuring range of motion?

I asked my rep at the DAV but he doesn't seem to understand what I'm asking...

[Punisher]

Thanks John!

I'm still waiting on my initial claim to come back.  It's been at "Preparation for Decision" for nearly 3 months now.

I am able to work, but needed to retire from Service because I couldn't take it anymore physically.  I was fortunate enough to find a work-from-home job, so I'm able to get up whenever I need to, stretch my back out on a Swiss Ball, take breaks when I'm hurting too much, etc..

I'm hoping to get 100%, SC, but do not want to seek IU because I want to be able to keep working at home and not worry about it.

[Andyman73]

Punisher,

 

I am with you on that thought.  I'm not looking for IU rather just to be fairly rated and compensated for the issues I do have.  I was recently asked "why now after 15 years, are you seeking increases and new claims?"  Because all those years I never thought I could. And the VA made sure I didn't know what I was missing.

I don't have the luxury of looking for a non-physical job.  Ironically enough, I'm a Federal Government employee. I need every cent of my total benefit/salary package to support my family. As for pay the most I ever grossed was 50Gs, literally! I was 50.00 over the fifty grand mark. Had a lot of overtime that year. Then came the furlough of 2013.  Totally drained my meager savings covering the lost hours.  Still trying to come back from that.

But now my body is betraying me, it's getting so much harder to do the normal physical things. Mowing the lawn, washing cars,  worst of all...playing with my kids...can't do that for very long anymore.