degenerative arthritis VA Disability Proposed Rate Reduction Response

[J Ash]

I got a letter a week ago that the VA wants to reduce the rating I currently have for Degenerative Arthritis of the Spine from 20% to 10%. I have had the 20% rating for over 5 years. The disability is the result of an injury that occurred when I was in the military and is well documented. I have prepared a statement contesting the reduction, but I'd like someone to read through it to see if I could be messing anything up.  This is my first post here, so I'm not sure if this is a valid request for these forums.

 

Here is the statement I have so far. Any advice or information is appreciated.

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This statement is in response to the proposed reduction of my disability rating for thoracic spine degenerative joint disease with kyphoscoliosis from 20% to 10%.

As stated in §4.71a—Schedule of Ratings–Musculoskeletal System, The Spine, “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis” are to be rated at 20%.

The presence of kyphoscoliosis, caused by the muscle spasms and guarding which resulted from my injury, should continue to be rated at 20%, as indicated in the aforementioned Schedule of Ratings.

Additionally, my current rating of 20% for thoracic spine degenerative joint disease with kyphoscoliosis has been in effect for over five years and is thus afforded ‘Protection of 5-year stabilized ratings’ as stated in 38 CFR Part 5, § 5.171. Under this protection, the rating cannot be reduced without showing Material improvement.

For the following reasons, Material Improvement, as detailed in 38 CFR Part 5, § 5.171 (c), has not been shown:

• During the VA Examination, dated January 20, 2016, the VA examiner did not use any medical instrument to measure the combined range of motion of the thoracolumbar spine or the forward flexion of the thoracolumbar spine. Therefore, there is no evidence that the measurements taken during the VA Examination, dated November 28, 2014, represent a sustainable material improvement.

• I have discussed my incapacitating exacerbations with muscle spasms with my VA primary care doctor during every checkup and continue to receive medication to treat these episodes. There has been no sustained improvement in either the frequency or the severity of these incapacitating exacerbations and, due to recent restrictions on medications I can take (explained below), there has been an increase in the daily pain, inflammation, and muscle spasms that I experience.

• Between once and twice a month, an incapacitating exacerbation is triggered by events as common place as moving laundry from the washer into the dryer, putting a trash bag into the alley dumpster or picking up one of my kids, indicating that no improvement has been maintained under the ordinary conditions of life.

I have daily pain, inflammation, and muscle spasms that are a direct result of the disability discussed here. I also experience incapacitating episodes which occur an average of once to twice a month. During these episodes, my movement, strength, and mobility is severely limited for at least a full day. These episodes can be triggered by events as common place as moving laundry from the washer into the dryer, putting a trash bag into the alley dumpster, or picking up one of my kids.

In the past, to manage the daily aspects of my disability, my VA primary care doctor prescribed Etodolac, a nonsteroidal anti-inflammatory drug (NSAID), to minimize the inflammation and reduce muscle spasms. Within the last few years, I was diagnosed with Kidney disease and told by my VA Nephrologist that I am no longer able to take any NSAIDs. Since I have stopped taking Etodolac, my daily pain has increased making everyday tasks more difficult and increasing the number of debilitating episodes I experience.

I have also been prescribed Cyclobenzaprine, a muscle relaxant, to manage the daily aspects of my disability as well as the debilitating episodes. When taking Cyclobenzaprine I always experience drowsiness and trouble concentrating, which are documented side effects to the medication.  Because of these side effects, I am not able to take Cyclobenzaprine on a regular basis to manage the daily pain, inflammation, and muscle spasms.

 If, after the review of the information provided above, the reviewers still hold to the decision to reduce my current rating for thoracic spine degenerative joint disease with kyphoscoliosis from 20% to 10%, then I request a personal hearing.

[Berta]

That looks good to me...make sure they get this within the timeline they gave you...was it 60 days?

And ask for more comp!

If the NSAID was prescribed by VA and led to kidney disease, as you said your VA nephrologist stated, then the VA should SC the kidney disease.

This is but one link, others under a google search, whereby Etolodac was associated with causing kidney disease and many other problems.

Can you scan and attach here ( cover C file # ,name etc prior to scanning) as to their Reasons and Bases for proposing to reduce you?

Perhaps they feel you are not being medicated at this point, so no meds needed, no 20% rating...in VA logic but it is hard to know how they determined this proposal ...and what caused it...

Have you applied for any additional disability that might have prompted this review?

[Berta]

http://www.webmd.com/drugs/2/drug-214/etodolac+oral/details/list-sideeffects

I forgot to add that.

VA doctors often "state" things that are not documented in the record.

A VA doc "stated" something to a friend of mine that revealed another VAMC had malpracticed on him.At that point I got him from 40% up to 100% P & T because the doctor either made an entry that supported what this vet said to me, or in fact, that the medical records supported the 1151 claim I wrote, telling VA that the VA medical records would reveal the malpractice as well as the extent of it. (neither he or I had those med recs, I just took a chance, based on the circumstances I knew of, that the 1151 would be granted.And It was one of fastest awards I had ever seen.)

[J Ash]

3 minutes ago, Berta said:

That looks good to me...make sure they get this within the timeline they gave you...was it 60 days?

And ask for more comp!

If the NSAID was prescribed by VA and led to kidney disease, as you said your VA nephrologist stated, then the VA should SC the kidney disease.

This is but one link, others under a google search, whereby Etolodac was associated with causing kidney disease and many other problems.

Can you scan and attach here ( cover C file # ,name etc prior to scanning) as to their Reasons and Bases for proposing to reduce you?

Perhaps they feel you are not being medicated at this point, so no meds needed, no 20% rating...in VA logic but it is hard to know how they determined this proposal ...and what caused it...

Have you applied for any additional disability that might have prompted this review?

1) The kidney disease I have is called polycystic kidney disease and I'm not sure how to find out if that specifically can be cause by NSAIDs.  I took the NSAIDs frequently for a long time.

2) I've attached a screenshot of the reasons for their most recent decision to reduce my rating.

3) In 2014, I applied for disability for migraines (I get 3 or 4 a month). Back in 2010 I was getting headaches everyday, for close to 2 years. I saw lots of doctors both VA and non-VA and eventually ended up at a non-VA physical therapist, who told me I needed to fix my posture. Once I started paying attention to my posture, almost all the headaches went away.  I'd still get when if I do something where my neck is hold up my head (like laying tile down) but at only once a week versus every day, I wasn't one to complain. In the last 2 years though when I get these headaches they've evolved into full blown migraines.  I end up curled up with half my head feeling like it's exploding, my sinus cavity on fire, and throwing up. I've started to see an ENT (also non-VA) who's prescribed Imitrex which so far has prevented most of the migraine attacks if I take it quickly enough. My logic behind applying for disability for the migraines was that: back injury -> poor posture -> migraines

That claim was denied (see the 2nd attached screen shot). The neurologist mentioned in the document was never able to figure out the headaches and the physical therapist who did was out of business and could not be located.

[J Ash]

 

41 minutes ago, Berta said:

That looks good to me...make sure they get this within the timeline they gave you...was it 60 days?

And ask for more comp!

Also, I'm not sure what justification I'd have to request more compensation. I've read through a lot of the rating schedules and such and haven't located any explicit justification I could include.

[Berta]

This case might help explain what I mean:

http://www.va.gov/vetapp03/files/0329046.txt

 

[broncovet]

Whoa!  Katrina Eagle (a Well known attorney representing Veterans) had an article on reductions about 5 years ago, but its been taken down, unfortunately.  

She advised Veterans to NOT show how they meet the current rating schedule.  Instead, VA has to show "actual improvement under ordinary conditions of life".  The Veteran need not prove over and over again how he meets the current rating schedule every day, month or year.  It appears that the VA will have to try to prove CUE as your decison has become final after one year.  To prove CUE, the VA will have to prove that its undebatable.  

 3.344 Stabilization of disability evaluations.

(a) Examination reports indicating improvement. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind.

(b) Doubtful cases. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference “Rating continued pending reexamination ___ months from this date, §3.344.” The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made.

(c) Disabilities which are likely to improve. The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.

3.105 Revision of decisions.

The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§ 3.500(b)); there is a change in law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§ 3.114); or the evidence establishes that service connection was clearly illegal. The provisions with respect to the date of discontinuance of benefits are applicable to running awards. Where the award has been suspended, and it is determined that no additional payments are in order, the award will be discontinued effective date of last payment.

(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of § 3.500(b)(2) will apply.

(b) Difference of opinion. Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office. However, a decision may be revised under § 3.2600 without being recommended to Central Office.

(c) Character of discharge. A determination as to character of discharge or line of duty which would result in discontinued entitlement is subject to the provisions of paragraph (d) of this section.

(d) Severance of service connection. Subject to the limitations contained in §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). (Where service connection is severed because of a change in or interpretation of a law or Department of Veterans Affairs issue, the provisions of § 3.114 are for application.) A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

(Authority: 38 U.S.C. 5112(b)(6))

(e) Reduction in evaluation—compensation. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

Edited February 6, 2016 by broncovet