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Is this a valid reason to request reevaluation of disability rating?

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Paula H

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Just a quick question if you please.  I am currently receiving a total of 60% VA disability.  10% of which is due to a back injury during active service.

I've had a spinal fusion and 4 years later the discs above and below have now blown and causing back and nerve pain.  My surgeon has said this is not uncommon with a fusion.  Your spine is not meant to be held in place like that.   I was considering submitting for an increase of the 10%.

Is that valid?  I'm wondering if the VA would just deny the claim siting the condition is worse because of the surgery and not the original injury.

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  • Content Curator/HadIt.com Elder

Hi Paula,
Welcome to Hadit!

The VA sometimes does stupid things, but I don't think they would hold having spinal fusion surgery against you. Surgery sometimes is needed. In most cases, back problems do tend to worsen over time.

Because you are asking for an increase, I recommend you take a look at the rating schedule for the spine. Keep in mind that the VA considers the the spine to have two segments (upper = cervical/neck, lower = thoracolumbar). There are a lot of possible and's and or's which might qualify you for a higher rating. I included the neck/back rating criteria below.

Probably your best bet is to look at your medical records to determine what you qualify for based on the rating criteria below. You can also have your doctor fill out a Disability Questionaire (DBQ), see links below, which will basically give the VA an assessment of your current status. For a condition that is already SC, like your back, your doctor only needs to fill out the assessment. They do not need to opine whether or not you are SC because you already are SC.

Because you are asking for an increase, you can go back 12 months from the date you request an increased rating. Basically, if there is proof you met a higher rating criteria during the preceding 12 months, the VA will go over the evidence and should assign it accordingly.

In addition, you might consider secondary conditions, but for those you would need a doctor to opine in your favor stating the new condition is caused by your current SC conditions. You typically cannot go back 12 months from the date you file for secondary conditions because they are considered new claims, but you can submit an Intent to File which will give you up to 12 months from the filing date to submit any evidence. For example, if you are SC for your back and now you are having problems with your neck, look at the rating criteria, your  evidence, and determine if you might qualify for it. Remember, other parts of your body are connected. Some veterans experience sciatica, which can be filed as secondary because the pain, numbness, etc.. goes into one or both legs and it is rated as a nerve issue. If you have problems with your hips, knees, or feet due to problems walking, look at the criteria for those conditions too.

Good luck!

 

Disability Questionaires (DBQ's)

Full list: http://www.benefits.va.gov/compensation/dbq_ListByDBQFormName.asp

Upper/cervical: http://www.vba.va.gov/pubs/forms/VBA-21-0960M-13-ARE.pdf

Lower/thoracolumbar: http://www.vba.va.gov/pubs/forms/VBA-21-0960M-14-ARE.pdf

 

http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5;node=38:1.0.1.1.5#se38.1.4_171a

   Rating
General Rating Formula for Diseases and Injuries of the Spine  
(For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes):  
With or without symptoms such as pain (whther or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease  
Unfavorable ankylosis of the entire spine 100
Unfavorable ankylosis of the entire thoracolumbar spine 50
Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40
Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30
Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis 20
Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10
Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.  
Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  
Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.  
Note (4): Round each range of motion measurement to the nearest five degrees.  
Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  
Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  
   5235   Vertebral fracture or dislocation  
   5236   Sacroiliac injury and weakness  
   5237   Lumbosacral or cervical strain  
   5238   Spinal stenosis  
   5239   Spondylolisthesis or segmental instability  
   5240   Ankylosing spondylitis  
   5241   Spinal fusion  
   5242   Degenerative arthritis of the spine (see also diagnostic code 5003)  
   5243   Intervertebral disc syndrome  
Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25.  
Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes  
With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months 60
With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months 40
With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months 20
With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months 10
Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  
Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  

 

 

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good luck, great advice above!  Keep in mind, the ONLY* thing that matters for rating this type of issue is the ROM (range of motion), from my experience.  I also have a fusion, C-4 thru C-6.  Based on ROM, that equals a whopping 20%.  NO WAY that is a realistic assumption, it should be higher since it is one of my more debilitating conditions, but it is the system we are working with.  I honestly believed that I would have been rated higher, mostly based on the fact that it negatively impacts every single day of my life.  Period.  I forget what, but I have a 30% rating for something that will shorten my existence somewhat, maybe, but has no affect on my life.  Go figure, right?  Why did I bring this up?  Nomenclature, plain and simple;  Intervertebral Disc Syndrome (IVDS), as stated above, gives an alternate scale for rating.  If they say you have something else...Hello anyone with degenerative disc disorder (DDD)!  Guess what...no award.  IF you do not have MULTIPLE diagnoses for IVDS, they will ONLY award for ROM.  I have many annotations for back issues and years of records, but they refuse to rate on anything buit ROM, for me. Pain, etc, mean nothing to the VA raters.  Hope this helps...

 

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After reading all the great info from Vync I think you're right.  I defiantly feel your pain (bad pun).  You would think living daily with that kind of pain would mean something.  But I'm going to ask my doc to do the questionaire and deside what to do from there.  You guys are the best.  Thanks

 

 

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  • Content Curator/HadIt.com Elder
On 1/12/2016 at 8:31 PM, TALON II FE said:

good luck, great advice above!  Keep in mind, the ONLY* thing that matters for rating this type of issue is the ROM (range of motion), from my experience.  I also have a fusion, C-4 thru C-6.  Based on ROM, that equals a whopping 20%.  NO WAY that is a realistic assumption, it should be higher since it is one of my more debilitating conditions, but it is the system we are working with.  I honestly believed that I would have been rated higher, mostly based on the fact that it negatively impacts every single day of my life.  Period.  I forget what, but I have a 30% rating for something that will shorten my existence somewhat, maybe, but has no affect on my life.  Go figure, right?  Why did I bring this up?  Nomenclature, plain and simple;  Intervertebral Disc Syndrome (IVDS), as stated above, gives an alternate scale for rating.  If they say you have something else...Hello anyone with degenerative disc disorder (DDD)!  Guess what...no award.  IF you do not have MULTIPLE diagnoses for IVDS, they will ONLY award for ROM.  I have many annotations for back issues and years of records, but they refuse to rate on anything buit ROM, for me. Pain, etc, mean nothing to the VA raters.  Hope this helps...

 

I agree with you.

I think that some of the rating tables were written decades ago and were not updated for modern treatment methods. Back in the early 1990's, I had a motor vehicle accident and was on bedrest for over a week due to back pain. Nowadays, the docs will just give you a shot of something beefy and send you home with a bottle of pills and a couple of days off.

Although it is possible to get a 10% or 20% rating without ROM, even if you qualify for the extra criteria, the VA will likely try to deny or give a 0% or 10% rating based solely on ROM. If anyone is interested in filing for the extra criteria, be sure you point it out to the VA so they don't low ball you.

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