Clemons Vs. Shinseki

[add55p]

BVA noted Clemons vs. Shinseki in lumbar spine award decision. During examination, the examiner diagnoses several different back spine, muscle and nerve root conditions, to include arthritis. Highest ROM was 20.

Does this mean that the RO must acknowledge all of the back conditions noted in the examination even though I did not include them in my VA claim.

At least that is how I interpret Clemons vs. Shinseki.

Thank you..

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[FormerMember]

Clemons is a wonderful, simple decision that is the bookend to Espiritu and Layno. https://asknod.wordpress.com/2011/09/27/cavc-clemons-v-shinseki-2009-not-an-m-d/

Espiritu: https://asknod.wordpress.com/2011/09/28/cova-espiritu-v-derwinski-no-lay-doctors/

Layno: https://asknod.wordpress.com/2012/02/13/cova-layno-v-brown-dont-try-to-layno-boogie-woogie-on-the-cova/

This whole family of decisions is the crux of why we try to instruct that you need a real doctor rather than diagnose yourself-or worse- let VA diagnose you.

[Matthew Hill]

Add:

If I'm reading your post right, VA finally granted service connected compensation for your back. As far as granting service connection for the various diagnoses of your back, it doesn't matter as long as they grant service connection for one then it is granted for all. For example, if you suffer from degenerative disc disease and a lumbar fusion those disabilities affect the same area of the body and, therefore, are rated under the same diagnostic code (in your case in should be 38 C.F.R. 4.71(a).

This is a classic trick that I see all the time where VA grants s/c for one condition affecting a certain body area and then leaves unresolved s/c for the other issues. As a result, the veteran focuses on obtaining s/c for those issues and not the rating. Even if you obtained s/c for all the issues just affecting the back it would not increase your rating because you cannot receive multiple ratings for disabilities that affect the same body area.

Your concern now should be forcing VA to grant you the proper rating. What I see happen is a veteran appeals the denial of s/c for the other back issues and does not appeal the rating. In the end, whether you are s/c for the other disabilities or not VA wins because you focused on service connection not rating.

Now the above analysis does not apply where you have a diagnosis that affects a different area of your body. With back claims the most common separate diagnosis is a secondary diagnosis of radiculopathy—a pain or loss of muscle in the legs due to the back disability. This disability affects a separate body part and, therefore, can be compensated separately. Your claim encompasses both what you wrote down your claim to be and what the evidence shows it to be. So with radiculopathy if the C&P exam showed that you had this then the VA has to address it as a claim—even if you only filed for your back.

[ArNG11]

This is true. When I started my back claim, my initial claim was back injury. Which looking at it now, I'm sure I probably ticked the rater off. I got a letter asking me what part of the back I was claiming and my VSO at the time, yes I actually was using one, stated not to respond. Well crappy advice and crappy decision. But none the less secondaries started being added in from the initial claim as my claims progressed. Radiculopathy of the left leg, then the right, then an increase with future decisions.

We are not medical professionals, however, most can read, and knowledge is power, and reading and gaining the knowledge can be the most powerful weapon when utilized.

I guess its a bad cliche but i'll write it. " If only I knew then what I know now" Gotta be proactive, that is the only way you will survive this deadly game and reap what you have rightfully earned.