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]

Where do I look to see what the diagnostic codes actually mean, since they don't use them as the rating codes. I haven't been successful in locating where they breakdown the diagnostic codes and convert them into rating codes.

[Buck52]

You can check the M-21 Provision of the code, each disability has a code = Diagnostic Code to rate the disability

if there is no code for that particular disability they use the code closest or appropriate to the disability/condition will be added.

you need to make sure you have the proper code assign to your disability/s.

if you don't they can change it to the correct code.

but this will not be consider as CUE.

Do not get the ICD-9 code mixed up with the Diagnostic code, the ICD-9 code is used as in Billing ( mostly in the private sector)

Your Award Letter should have the code Diagnostic code in it , see what code they used for your disability and check the code, if its the wrong code, you can have them to correct it.

So a wrong diagnosis is not grounds to file a CUE.

§4.27 Use of diagnostic code numbers.

The diagnostic code numbers appearing opposite the listed ratable disabilities are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis in the Department of Veterans Affairs, and as will be observed, extend from 5000 to a possible 9999. Great care will be exercised in the selection of the applicable code number and in its citation on the rating sheet. No other numbers than these listed or hereafter furnished are to be employed for rating purposes, with an exception as described in this section, as to unlisted conditions. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be “built-up” as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions. This procedure will facilitate a close check of new and unlisted conditions, rated by analogy. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Thus, rheumatoid (atrophic) arthritis rated as ankylosis of the lumbar spine should be coded “5002-5240.” In this way, the exact source of each rating can be easily identified. In the citation of disabilities on rating sheets, the diagnostic terminology will be that of the medical examiner, with no attempt to translate the terms into schedule nomenclature. Residuals of diseases or therapeutic procedures will not be cited without reference to the basic disease.

[41 FR 11293, Mar. 18, 1976, as amended at 70 FR 75399, Dec. 20, 2005]

4.7 Higher of two evaluations.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned

.....................Buck

Edited June 9, 2015 by Buck52

[Buck52]

This information may or may not help but it may answer your question about filing CUE.

§4.13 Effect of change of diagnosis.

The repercussion upon a current rating of service connection when change is made of a previously assigned diagnosis or etiology must be kept in mind. The aim should be the reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability had been granted. The relevant principle enunciated in §4.125, entitled “Diagnosis of mental disorders,” should have careful attention in this connection. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms. This will not, of course, preclude the correction of erroneous ratings, nor will it preclude assignment of a rating in conformity with §4.7.

[29 FR 6718, May 22, 1964, as amended at 61 FR 52700, Oct. 8, 1996]

§4.14 Avoidance of pyramiding.

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.

§4.15 Total disability ratings.

The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; Provided, That permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. The following will be considered to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden. Other total disability ratings are scheduled in the various bodily systems of this schedule.

....................Buck

[Andyman73]

Buck,

Ok, then, would it be more beneficial to persue a DDD claim w/thoracolumbar radiculapathy affecting both lower extremities? I have had issues with that since AD, and it is mentioned more than once in my SMR. My recent increase C&P exam for my back skipped over the radiculapathy section of the DBQ for the back. Since the DDD was first noted from X-rays taken while I was still on AD, therefor making the link to SC, and I was already experiencing sciatica in my L lower extremity at that time. Even tho the examiner told me that the DDD was the more serious ailment, and that the RO should have taken it instead of low back strain/pain, at this point would CUE be too much of a stretch? Would I be more successful in persuing claims for the DDD and radiculapathy instead? Give it to me straight, Buck! Thanks.

Semper Fi.

Andy

[Buck52]

I would file NOD and disagree with their decision & attach your new and material evidence.

I believe an increase is warranted for this disability....to %? look to see what you should be rated at.

Also I've notice that my diagnostic code for this rating is not correct (state what form # its on) (give the code #) could you please correct this as I need the correct diagnosis code for my records. or if this diagnostic code has no Number and the rater added it to the next appropriate rating disability?

either way you would like this to be corrected.

I would not file a cue

this is just my opinion....other elder members can help, but this is basic what I'd do.

....................Buck

[Andyman73]

Ok, then that now brings me to a new question regarding same. Even tho I am enjoying the episodes of the radiculapathy, I have no diagnosis. My current rate is 40% for low back strain/pain. And I believe it rests solely on the flexion of 0-20 degrees being 40% rateable. Nothing for anything else. Originally it was 10% from 11-'98. The DDD was noted then, but the radiculapathy was ignored/not persued during original C&P exam. MRI from 03-'15 shows mild to moderate to severe stenosis and or narrowing of the nueral foramina. From the radiologists notes perhaps the DDD and radiculapathy may be my best bet. Could I just go with reopening since it's well within the 1 yr window? Thoughts?

Andy