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...

[broncovet]

VA rates you on symptoms, not just diseases.  You can have a disease with no symptoms and you wont get over 0 percent for it.  If you want an increase, you need to show how your symptoms worsened since your last C and P exam.  

It isnt enough "just" to show DDD.  YOur doc needs to show how it limits your life.  Do you have reduced Range of motion?  Pain?  Can you not walk as far?  Can you not lift over xx pounds?  Can you not perform activities that you could perform at your last C and P exam that awarded your benefits?  

Of course, all these things need to be "medically" documented.  

Did your doc put restrictions on work?  Are you not allowed to stand for long periods?  Lift heavy things?  Do manual labor?  Sit for long periods?  ETC.  Remeber, VA is compensating you for loss of earning capacity..if this is the case, then you need to get that documented in your medical records.  Of course, I have no idea if/how much your back injury/pain/DDD affects your work, if any.  

[Punisher]

My C&P Dr wrote this for nearly every joint:

Is there evidence of pain with weight bearing?

[X] Yes

Have imaging studies of the knee been performed and are the results available?

[X] Yes [ ] No

If yes, is degenerative or traumatic arthritis documented?

[X] Yes [ ] No

If yes, indicate knee: [ ] Right [ ] Left [X] Both

Functional impact: Regardless of the Veteran's current employment status, do the condition(s)

listed in the Diagnosis Section impact his or her ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.)?

[X] Yes [ ] No

If yes, describe the functional impact of each condition, providing one or more examples:

Light physical employment: sales/teaching.

She also added blurbs in there for my shoulders saying something to the effect of "no overhead work."

What do you think?

Thanks again!

[john999]

You can make a claim for Chronic Pain Disorder/depression as well.  This is considered a mental health issue.  About 99% of people with chronic physical conditions like back trouble have issues with pain and depression as secondary to the back trouble.   This is part of the toll a chronic injury takes on you.  The VA tries not to measure it.  I don't think it is hard to open a depression/chronic pain claim for a permanent back disability.  I am SC for chronic pain due to my PN in my feet and lower limbs.  It is depressing to not be able to function like you could before the illness or injury.  The VA likes to treat you in a vacuum as if the mind and body are not connected.

[Punisher]

That's definitely something I'll have to keep in mind.  I'm actually hoping that my claim for Chronic Sleep Impairment, which is in that block of "Mental Disorders" as well.  In fact I have most of what's in that block in red below, that supposedly is worth 30%.

From the eCFR:

General Rating Formula for Mental Disorders

Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).	30

 

[Punisher]

Any thoughts on how the C&P comments (2 posts ago) will affect/influence my claim?

[john999]

One thing is you need a diagnosis for each and every condition to get a rating.  Most of the back conditions are lumped together.  The knees are another matter as are the shoulders, feet, hands etc.   For the conditions you have in the red box a shrink needs to put a DX on them and attribute them to your service or secondary to your SC conditions.  Are you able to work?  The difference between a 50% rating  and 70%-100% rating is if the condition keeps you from working.  For mental conditions that is the dividing line.   You can talk to a six foot rabbit but if you can work you won't get more than 50%.  It is sort of the same for most disabilities with the VA.  What are you SC for at present?