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Tomahawk

Can you request a different diagnostic code?

Question

Is it possible to appeal the diagnostic code used?

 

In my case,  I was granted 30% for CRPS secondary to a post operative foot injury.  They rated me under 8599-8521

      External popliteal nerve (common peroneal).

 

8521    Paralysis of:

 

                  Complete; foot drop and slight droop of first phalanges of all toes,

                        cannot dorsiflex the foot, extension (dorsal flexion) of proximal

                        phalanges of toes lost; abduction of foot lost, adduction weakened;

                        anesthesia covers entire dorsum of foot and toes............................................... 40

                  Incomplete:

                        Severe 30

                        Moderate............................................................................................................. 20

                        Mild    ................................................................................................................ 10

I believe this is the incorrect diagnostic code because it does not address the atrophy of the muscles below the knee which is what triggered them to reverse their denial before sending the appeal to the BVA.  They stated the 1" of atrophy on the calf was enough to separate the CRPS from the SC post operative foot injury.

I believe that they should have rated me under:

Sciatic nerve.

 

8520    Paralysis of:

 

                  Complete; the foot dangles and drops, no active movement possible

                        of muscles below the knee, flexion of knee weakened or (very

                        rarely) lost........................................................................................................... 80

                  Incomplete:

                        Severe, with marked muscular atrophy.............................................................. 60

                        Moderately severe ............................................................................................. 40

                        Moderate............................................................................................................. 20

                        Mild    ................................................................................................................ 10

Which would have granted me 60% and not the 30% due to the marked muscular atrophy of the muscles below the knee.

Is this something I can appeal on?  Or is it pretty much whatever they rated it under as it is analogous what I am stuck with?

Secondary question to this.   This was one of 5 items on appeal to the BVA.  They awarded me this prior to certifying my file to the BVA.  At my video hearing I stated I was withdrawing that portion of the appeal.  When I called the 800 number prior to my 1 year mark to inquiry as to how I would go about appealing the diagnostic code used they stated I couldn't appeal it until the BVA has finished with the claim.  If I am able to request it be reviewed under a different diagnostic code, is there some manner in which I can request a DRO review while my stuff is still with the veterans law judge?

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1 - You certainly can appeal a diagnostic code; they "are arbitrary numbers for the purpose of showing the basis of the evaluation assigned..." (38 CFR 4.27)  Its basically appealing a disability rating.

2 - Since your service connection is due to a foot injury, the most appropriate analogous rating is probably the external popliteal nerve due to the localization of the symptoms to the rating.  Of course, you could always appeal it based on the symptomatology due to the muscle atrophy.  The worst they can say is no.  

38 CFR 4.20 4.20 Analogous ratings.
When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are  closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.

 

3 - Since your appeal is with the BVA you have already passed the DRO stage.  

You could write to the BVA stating that you wish to reinstate your appeal based on the incorrect diagnostic code.  I have no clue if that would be a valid appeal since you already withdrew your appeal.  

Your other, and certainly valid option would be to open a new claim just for the incorrect diagnostic code.  

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