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

[Vync]

Is it just me or are the regulations in conflict with each other? If they are, then the veteran should be given the benefit of the doubt...

The rating table says to do it one way and, under the hood, M21 says to do the opposite..

 

Brave/Bold,
You mentioned your effective date was November 2014. I wonder if this small excerpt might be enough to cover you. Try to look up what the reg was before March 24, 2015, because you might be protected from the change. I assume this excerpt means the new pyramiding rule only applies to those who have an effective date of that or later. I could be wrong.

Quote

     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.

 

 

 

[Buck52]

The only way the VA Will prepose a reduction in rating would be they have information that your disability has improved...a C&P Examiner would be there first to title tale.

you should look at your last C&P Report.

As Meddac mention Request a DRO Hearing  to be  at your RO and face the DRO  face to face...and show him your  ROM and what the others above mention about the Regulations...you will probably be increased and not decreased.

jmo

.........Buck

[Brave and the Bold]

"The purpose of § 3.157(b)(1) is to avoid requiring a veteran to file a formal claim for an increased disability rating where the veteran's disability is already service connected and the findings of a VA report of examination or hospitalization demonstrate that the disability has worsened. Massie v. Shinseki, 25 Vet. App. 123, 132 (2011)."

Vync and Buck52

In May of 1994 I was awarded 10% under the general rating scale for ROM lumbar and 20% for radiculopathy lower left extremity.

 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.  

So if I'm understanding this correctly, is this  38 CFR 3.157 (b)  saying being that my original date of disability was actually in 94 and this disability has progressively gotten worse both in ROM and now Bi-lateral radiculopathy, that I SHOULD be eligible for the SEPARATE rating of the Bi-lateral radiculopathy and that wouldn't be considered PYRAMIDING?  

[gs106]

Brave, can you tell me where you found 3.157?  When I look at 38 CFR online it goes from 3.156 (New and material evidence) to 3.158 (abandoned claims) but no 3.157.

[Guest]

27 minutes ago, gs106 said:

Brave, can you tell me where you found 3.157?  When I look at 38 CFR online it goes from 3.156 (New and material evidence) to 3.158 (abandoned claims) but no 3.157.

 

[Brave and the Bold]

https://www.gpo.gov/fdsys/granule/CFR-2011-title38-vol1/CFR-2011-title38-vol1-sec3-157

I just scrolled down the page and clicked onto the link.