To Cue, Or Not To Cue, That Is The Question My Friends.

[Andyman73]

I was looking over some of my recent claim info regarding a granted increase on my back from 10 to 40%. C&P Doc wrote that this is the natural progression of the disease(DDD). And she noted that there was an X-ray from my AD time that showed then the DDD already starting. . And she noted that this should have been the original diagnosis as well. The original rating was/is still for low back pain.

Can some of you well versed VA claim Warriors give me some input on this? Thanks!

Semper Fi.

Andy

[Andyman73]

Buck,

On day 5 of boot camp I fell down a flight of cement stairs, landed knees first, then chest, with legs then flopping up behind me towards my head, compressing my spine. I am SC for my back, from when I first got out. It was during the C&P for increase, a few months ago, that this was noted by the examiner. However, she did not ask about any pain that may be related but not in the back, such as radiculapathy, of which I suffer in both legs, and is also noted several times in my SMR and VA records. MRI done at her request shows DDD and that the disc is bulging out both sides moderate to severely effecting the nerves at that location. It was diagnosed as Low Back Strain, for SD rating. But several entries in my SMR state acute mechanical low back condition. So...diagnosis by AD Dr is there.

[FormerMember]

When in doubt, read the pertinent regulation or statute:

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

(b) Record to be reviewed—

(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.

© Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.

(d) Examples of situations that are not clear and unmistakable error—

(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

(Authority: 38 U.S.C. 501(a), 7111)

[Andyman73]

asknod,

Thanks for posting that reg. One question, then, if the examiner states the diagnosis should have been the DDD from the get go, and current prognosis is progression of same. She said that it is the more medically significant diagnosis, and it should be the leading diagnosis. And the RO keeps it the same, "Low Back Strain", what then?

I appreciate all your knowledge that is trickling down to us lesser knowledgeable Vets.

[broncovet]

A change in diagnosis wont increase your rating. While a "current diagnosis" is required for service connection, we are not compensated based on a diagnosis, but rather on symptoms.

If you have a diagnosis of xxxxx, but it has no symptoms, you wont get paid. Zip. Zilch, nada. WE are compensated for the "average loss of earning capacity", and if you have no symptoms, then you have not lost any earning capacity.

An exception to this is when the VA diagnosis "personality disorder". This is hoodwink for "we are not paying you for a bad personality". You have to have one of the other mental health problems, such as MDD, Bipolar, PTSD, etc., as a personality disorder is not a compensable mental health disorder.

[RUREADY]

Buck,

On day 5 of boot camp I fell down a flight of cement stairs, landed knees first, then chest, with legs then flopping up behind me towards my head, compressing my spine. I am SC for my back, from when I first got out. It was during the C&P for increase, a few months ago, that this was noted by the examiner. However, she did not ask about any pain that may be related but not in the back, such as radiculapathy, of which I suffer in both legs, and is also noted several times in my SMR and VA records. MRI done at her request shows DDD and that the disc is bulging out both sides moderate to severely effecting the nerves at that location. It was diagnosed as Low Back Strain, for SD rating. But several entries in my SMR state acute mechanical low back condition. So...diagnosis by AD Dr is there.

just remember back problems is mostly" rated by range of motion" or bed rest by a doctor

but your legs is a different rating for radiculopathy is a separate rating which is judge by test

and a range of motion as how far can you lift your legs off the table mostly, even without a

nerve study test because they are not the truth. they look at leg raise at how far you can raise them

before pain occur. That how I got my rating because a EMG is not always right. look for ROM . jmha

Edited May 29, 2015 by RUREADY

[FormerMember]

I've seen VA change a diagnostic rating code in an attempt to lower a Vet's rating but they always get busted on appeal to the CAVC -so it proves the adage of Appeal until you can't go any higher (Win or Die). Try this read to get an idea of what they can and may try. https://asknod.wordpress.com/2014/02/13/cavc-mekus-v-shinseki-idle-hands-are-the-devils-workshop/

You need to file for a higher rating to provoke the change in DX code number though. It would also be best to specify the correct DX code as well if you plan to stir up the hornet's nest. Lower back strain is not a medical term but more a condition. Look at your ratings sheet if you have one that shows your actual Dx Code. If there is none (VA is fond of that one) you have to parse the exact language they used in the back ratings language in your grant to find what code you are actually rated under. When you find that, you have the key to what the next higher ratings criteria are.

Could be they are lowballing you under the wrong code, too. I see that a lot. Make sure where you're going to jump before the green light above the door comes on. Never trust the VSO jumpmaster.

P.S. to Andyman73. I expect you'd do the same for me (or any of us) if our circumstances were reversed. An interesting thing about Veterans is they can become fast friends in short order because of their shared experience. You can't join this club later in life after you've changed your mind.

Edited May 29, 2015 by asknod