Received Decision from BVA

[nanaeris]

I just received a remand decision from BVA. It basically stated the Waco Regional office sent me to a C&P examination to determine if my bialateral service connection knee disability was causing my bialateral foot pain. The people in Waco only stated for the Doctor to evaluate whether osgood schlatter disease was causing my foot problem. In the 2008 C&P exam the doctor said no. I filed a NOD and they send me for a second exam in 2012 with the same critera. My bilateral knees are service connected for osgood schlatter disease, status post debridement degenerative joint disease and a history of chondromalacia. Even though I told them this in the NOD they still told the doctor to evaluate osgood schlatters only in the 2012 C&P exam. I had asked for a increase rating for my bilateral knee disability in 2008 which was denied. I filed a NOD and in 2012 was granted an increase from 20% to 30% per knee. The Board stated that a higher evaluation are possible under the rating criteria 38 C.F.R. & 4.71a, DCs 5010-5261. The Board also stated the grant of the 30% rating does not cover the full period that was on appeal.

I like to know am I reading this correctly that the VA should have rated my knees at a higher percentage? Also the VA did not pay me for the full period that was on appeal.

Is the Board finding binding on the Regional Office? I went to the National Insitute of Health web site and found a study called the the prevalence of foot pain and foot pain laterality in people with knee osteoarthritis, and its impact on health and function. Do you think this will help my claim of foot pain as secondary to service connect bilateral knee disability?  Any input will be highly appreciated.

Thank You,

nanaeris

[RUREADY]

at least post the text to the decision I would like to read it without searching for it

[RUREADY]

Good point, I'll clean it up!

good man

[Vync]

at least post the text to the decision I would like to read it without searching for it

Here's the decision I found that in: http://www.va.gov/vetapp11/files2/1114701.txt

And here's the rest of the text referenced in the paragraph:

In his November 2010 Written Brief Presentation, the Veteran's representative resultantly argues that the May 2010 VA C&P Exam report is inadequate because that VA examiner did not review and consider the Veteran's private treatment records in conjunction with that examination and opinion.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).  And see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (indicating an opinion is considered adequate when it is based on consideration of an appellant's medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the claimed disability is a fully informed one).

In this specific example, the CA C&P examiner failed to do his job. He just did his own exam and didn't consider any private medical treatment records.

I'll post separately in a moment to explain the relation to this to Nanaeris' topic, as it is a bit different.

Edited December 14, 2015 by Vync

[Vync]

Updated from my previous entry.

If your C&P examination was not adequate and thorough, check these rulings:

  Quote

Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). 

Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (indicating an opinion is considered adequate when it is based on consideration of an appellant's medical history and examinations and describes the disability in sufficient detail so the Board's evaluation of the claimed disability is a fully informed one)

If you don't already have them, I recommend you get a copy of your C&P exam findings from 2008 and 2012. If the exam was performed at a VAMC, you should be able to get a copy by going to the Release of Information Office. If not, you might have to request it via IRIS or directly from the Waco VARO.

Once you have the exam findings, compare them to the DBQ and also to the rating criteria.

Here's a list of the VA DBQ's by name: http://www.benefits.va.gov/compensation/dbq_listbydbqformname.asp

Here is the DBQ for knees: http://www.vba.va.gov/pubs/forms/VBA-21-0960M-9-ARE.pdf

When the VA sends you a decision letter, they don't send you a copy of your C&P examination findings. They will just extract out parts of it and copy/paste it into the letter. By having the full exam findings, you will be able to look at the entire exam and compare it to the rating criteria. The knee has a lot of different options for ratings and you don't want to trust that the VA was accurate in how they rated you. Even if the findings did look right to you, double-check because they could have screwed up and you might deserve a higher rating.

The rating criteria for the knee and leg can be found here: http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=38:1.0.1.1.5 (you'll need to scroll down a bit).

The 5010-5261 is a diagnostic code (DC), but the 5261 part applies to the knee. As you can see below, in bold, 5261 is the code which applies here. They don't specifically rate you for osgood-schlatter because they rate you on limited Range Of Motion (ROM). The less you are able to move, the higher the rating, as indicated below.

he Knee and Leg

	Rating
5256   Knee, ankylosis of:
Extremely unfavorable, in flexion at an angle of 45° or more	60
In flexion between 20° and 45°	50
In flexion between 10° and 20°	40
Favorable angle in full extension, or in slight flexion between 0° and 10°	30
5257   Knee, other impairment of:
Recurrent subluxation or lateral instability:
Severe	30
Moderate	20
Slight	10
5258   Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint	20
5259   Cartilage, semilunar, removal of, symptomatic	10
5260   Leg, limitation of flexion of:
Flexion limited to 15°	30
Flexion limited to 30°	20
Flexion limited to 45°	10
Flexion limited to 60°	0
5261   Leg, limitation of extension of:
Extension limited to 45°	50
Extension limited to 30°	40
Extension limited to 20°	30
Extension limited to 15°	20
Extension limited to 10°	10
Extension limited to 5°	0
5262   Tibia and fibula, impairment of:
Nonunion of, with loose motion, requiring brace	40
Malunion of:
With marked knee or ankle disability	30
With moderate knee or ankle disability	20
With slight knee or ankle disability	10
5263   Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated)	10

 

I like to know am I reading this correctly that the VA should have rated my knees at a higher percentage?

Look at the C&P exam ROM values for leg extension. Compare that with the chart above to see if the VA rated you correctly or not. Don't just do this for 2012, but also do this for 2008. But it does not stop there...

 

The Board also stated the grant of the 30% rating does not cover the full period that was on appeal.

The VA often give staged ratings. Basically, it is like your rating criteria shows you this much % at this period and that much % for the next period, etc...

They normally will pay retro back to when you filed for the increase, not when your last C&P exam was. However, if you have records within 12 months preceding the date you requested the increase, and if those records contain evidence showing you qualified for a higher rating percentage, include only those records. I recommend you go back through your medical treatment records and see if there is anything which can help close the gap.

Also the VA did not pay me for the full period that was on appeal.

This is likely due to staged ratings (see above).

Is the Board finding binding on the Regional Office?

Yes, the Board is above the RO, but even those can be appealed. It's not uncommon for the Board to request a new C&P, you have it done, and the RO doesn't rate it properly. Happens all the time. You just file a Notice of Disagreement (NOD) for the rating (again).

I went to the National Insitute of Health web site and found a study called the the prevalence of foot pain and foot pain laterality in people with knee osteoarthritis, and its impact on health and function. Do you think this will help my claim of foot pain as secondary to service connect bilateral knee disability?  Any input will be highly appreciated.

As RUREADY mentioned, it could be beneficial if you can get a doctor to help. However, the raters at the regional office are not doctors. They cannot interpret case studies. If you can get a doctor, preferably a specialist, to look at your records, examine you, and offer a medical opinion to tie the case study to your condition, it could make a difference.

However, the knee rating criteria would not necessarily apply to your foot. It is very common for veterans to have a knee injury service connected and then start having problems with their feet, ankles, hip, back, etc... It's all connected. Think about what has been giving you problems since your knee problem developed. "Impact on health and function" sounds like a good basis to file for a secondary claim for your foot pain and anything else which might be related. You can even file a secondary claim if the medication you take for your SC conditions causes an additional disability. For example, if you have been taking NSAIDs (ibuprofen, naproxen, etc...) for a really long time and developed acid reflux, it could be connected as secondary for this reason.

I hope this helps!