Proposal to reduce combined rating from 70% to 60%

[Brave and the Bold]

Proposal to reduce combined rating from 70% to 60%

Wanted to see if anyone has ever heard of the VA "proposing to discontinue the separate compensable evaluation for radiculopathy, left lower extremity currently evaluated as 20 percent disabling and combine the radiculopathy, left lower extremity with the disability of degenerative disc disease of the lumbar spine under diagnostic code 5243 and assign a single evaluation"

A brief summary is as follows.  In November 2014 I was assigned a 60% evaluation under diagnostic code 5243 for intervertebral disc syndrome based on incapacitating episodes.  I was also assigned a seperate compensable evaluation for left lower extremity lumbar spine radiculopathy of 20%.  These two ratings along with another rating of 10% for tenitus brought a combined evaluation of 70%.
After a recent C&P Feb 24th of this year(2016) I had a combined ROM of 80* as well as moderate/severe radiculopathy in my left leg and moderate radiculopathy in my right leg.  I again had a 60% evaluation under diagnostic code 5243 based on incapacitating episodes due to 3 recent lumbar minor surgeries.  My combined rating was continued at the 70%.  My VSO noted that the right radiculopathy was never mentioned in the Decision Letter.  We submitted VA 21-526EZ on April 18, 2016 as well as VA 21-4138.  

Today I recieved a Decision Letter with the proposed discontinuence of the seperate evaluation for radiculopathy in the left extremity currently evaluated as 20% disabling and combine the radiculopathy with the DDD under diagnostic code 5243 and assign a single evaluation.  I was granted service connection for right extremity radiculopathy wich was also comined with the DDD under diagnostic code 5243 and assigned a single evaluation of 60%.

Per the VA they stated the following reason for their decision as, "When an evaluation is assigned under diagnostic code 5243 for Intervertebral Disc Syndrfome based on incapacitating episodes regulation prohibit the assignment of seperate compensable evaluations for objective neurologic abnormalities to include radiculopathy of the lower extremities.  The result of this proposal would reduce your combined evaluation from 70% to 60%."

So now I have a rating of DDD with Bi-lateral radiculopathy all under a single evaluation.  Everything that I have read and researched states the complete opposite.  It clearly states that if rating under diagnostic code 5243 consider the assignment of seperate compensable evaluations for objective neurologic abnormalities.  Even with the VA fuzzy math I can't understand how I didn't recieve an increase rather then a decrease in combined rating.  

What should I do now to dispute this or am I wrong in what I'm understanding?  Is the VA actually right in their decision?

Thanks in advance for any help you may be able to give

Darren

[63Charlie]

Would like to know this because I have spinal claim conditions like yours.

[Vync]

In my opinion, I believe you are correct. 5243 says nothing like what is mentioned in the VA letter.

Not only does the regulation state they must "evaluate any objective neurologic abnormalities separately under an appropriate diagnostic code", but it also says to use whichever criteria (general vs. IVDS) that yields a higher rating.

If I received a letter like that, I would NOD the hell out of it. Include the current spine rating table and specifically quote what you need to prove them wrong. I would make it as clear as possible and at an 8th grade reading level (obviously someone over there is having trouble reading).

 

While you are at it, here are a couple of other factors to also consider:
If you are no longer employed, you might also consider filing for IU per the 60% IVDS rating.

Regardless of whether or not you are employed, don't forget about any other common secondary conditions such as depression, ED, and any other disabilities that are created due to side effects of medication used to treat your spine/radiculopathy.

 

Quote

The Spine

	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.

 

 

[Meddac]

It's currently a proposal, right? You can't NOD a proposed rating because it isn't final. You should immediately request a hearing (within 30 days of the proposal notice) to discuss the issue. Requesting a hearing will freeze the evaluation right where it is for the time being. If, however, VA goes ahead and reduces the overall percentage from 70% to 60% it will cause a debt for payment made following 60 days after the proposed rating date (which would be 10% of each payment in this case).

example: Proposed rating on May 1, 2016. VA generates a suspense of 65 days (5 days provides time for mail processing). Reduction would occur in July, but would actually be reflected on the August 1 payment. If you request a hearing that is scheduled in early August then everything is frozen until the hearing happens. If that hearing doesn't prompt VA to reverse and they rate the same then it would be effective in July still (60-65 days following the  proposed date) which would result in an overpayment for the August 1st check that was already received by the time of the hearing. If the hearing is scheduled in late August then it could result in an overpayment of 2 months at the 10% rate because the September payment might have already processed as well.

If you request a hearing outside of 30 days of the proposal then VA will still reduce. If the hearing is successful then it would be restored over the months that the reduction was effective.

Requesting a hearing to freeze things and presenting the evidence could help out. It could also backfire if the rater is not interested in hearing what you are saying.

It's confusing, but it sounds as if a hearing is what you need to do.

[gs106]

Vync, I believe VA may be right in this case.  The first sentence of the information you posted from 38 CFR excludes 5243 if it is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes):

This is from M21-1 

 

Change Date

January 11, 2016

---

III.iv.4.A.3.a.  Evaluating Manifestations of Spine Diseases and Injuries

Evaluate diseases and injuries of the spine based on the criteria listed in the 38 CFR 4.71a, General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula).  Under this criteria, evaluate conditions based on chronic orthopedic manifestations (for example, painful muscle spasm or LOM) and any associated neurological manifestations (for example, footdrop, muscle atrophy, or sensory loss) by assigning separate evaluations for the orthopedic and neurological manifestations. Evaluate IVDS under 38 CFR 4.71a, DC 5243, either based on the General Rating Formula or the Formula for Rating IVDS Based on Incapacitating Episodes (Incapacitating Episode Formula), whichever formula results in the higher evaluation when all disabilities are combined under 38 CFR 4.25. Variations of diagnostic terminology exist for IVDS.  When used in the clinical setting, the following terminology is consistent with the general designation ofIVDS: ·         slipped or herniated disc ·         ruptured disc ·         prolapsed disc ·         bulging or protruded disc ·         degenerative disc disease ·         sciatica ·         discogenic pain syndrome ·         herniated nucleus pulposus, and ·         pinched nerve. Notes:  ·         When an SC thoracolumbar disability is present and objective neurological abnormalities or radiculopathy are diagnosed but the medical evidence does not identify a specific nerve root, rate the lower extremity radiculopathy under the sciatic nerve, 38 CFR 4.124a, DC 8520. ·         If an evaluation is assigned based on incapacitating episodes, a separate evaluation may not be assigned for LOM, radiculopathy, or any other associated objective neurological abnormality as it would constitute pyramiding. ·          Apply the previous provisions of 38 CFR 3.157 (b) (prior to March 24, 2015) when determining the effective date for neurological abnormalities of the spine that are identified by requisite records prior to March 24, 2015.

 

III.iv.4.A.3.c.  Example of Evaluating IVDS

Situation: A Veteran’s IVDS is being evaluated. ·         LOM warrants a 20-percent evaluation based under the general rating formula ·         mild radiculopathy of the left lower extremity warrants a 10-percent  evaluation as a neurological complication, and ·         medical evidence shows incapacitating episodes requiring bedrest prescribed by a physician of four weeks duration over the past 12 months which would result in a 40-percent evaluation based on the incapacitating episode formula. Result:  Assign a 40-percent evaluation based on incapacitating episodes.  Explanation: ·         Evaluating IVDS using incapacitating episodes results in the highest evaluation. ·         Since incapacitating episodes are used to evaluate IVDS, the associated LOM and neurological signs and symptoms will not be assigned a separate evaluation.  References:  For additional information on ·         evaluating spinal conditions, see M21-1, Part III, Subpart iv, 4.A.3.a, and ·         determining whether evidence is sufficient to evaluate based on incapacitating episodes of IVDS, see M21-1, Part III, Subpart iv, 4.A.3.b.

[Meddac]

gs is correct and it would be considered pyramiding, but the new overall evaluation is detrimental to the Veteran so I would think that VA could have done something that would at least leave the overall unchanged rather than forcing a reduction.

That's just my opinion. 

[Brave and the Bold]

Well it definitely looks to me that the VA is making the right call on this based on the information gs106 provided. Damn. I also agree with Meddac as well that this would potentially lead to me losing a service connection for the bi-lateral radiculopathy upon future re-eval.  I do see that while all noted under IVDS for Incapacitating Episodes in my letter it does also include in there in writing bi-lateral radiculopathy.  I also received a qualifying letter for Service-Disabled Life Insurance based on the assignment of a new service-connected disability for the right lower extremity radiculopathy. I'm praying that I don't need any more surgeries in the future that would lay me out again, but if upon re-eval in the future if evaluated under the general rating schedule even if at that time I don't have any radiculopathy issues, would the prior bi-lateral at least be reflected as a 0% service connection?  That would be my concern.  I'm not all tore up over a reduction in compensation.  I'm just concerned about losing a previously service connected disability.  I guess I just have to wait a few years and see what happens.  I'm not getting any younger though.