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jlrith

Secondary disabilities and pyramiding

Question

Here is my question:  Given two ratings, one primary and one secondary to that primary disability, is the VA required to evaluate the overall symptoms in the most favorable way?

Rating using the secondary disability results in a vastly higher rating and both ratings cannot be evaluated due to pyramiding.  

 

I am service connected with "Raynaud's syndrome with Chilblains Syndrome and Hyperhidrosis": 40%.   The VA lumped my secondary disabilities of Chilblains and Hyperhidrosis into the Raynaud's rating.  

As part of this many of my symptoms are secondary to Raynaud's.  These secondary symptoms are basically cold injuries and include all but the 'X-ray evidence of arthritis' for cold injury residuals in diagnostic code 7122.  I'm even service connected for a type of cold injury, Chilblains syndrome.

Pyramiding comes since both ratings (and my symptoms) include cold sensitivity, color changes and pain as basic establishing symptoms.  

My disability picture more closely matches the Cold Injury Residuals rating, and in accordance with 38 CFR 4.7, this should be used.  However, in 3.310 there is the line stating: "When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition."

Does that mean that my overall rating must be done under Raynaud's to avoid pyramiding since the secondary condition "shall be considered a part of the original condition?" 

In addition, the following court cases may apply:

    Buie v. Shinseki, 24 Vet. App. 242 (2011) 
•    “VA has a well-established duty to maximize a claimant's benefits.”


    AB v. Brown, 6 Vet. App. 35 (1993)
•    “A veteran is presumed to be seeking the greatest possible benefit unless he specifically indicates otherwise”


    Bradley v. Peake, 22 Vet. App. 280 (2008)
•    “This duty requires use of the Diagnostic Code that is most favorable to the Veteran.  The applicable Diagnostic Code that results in the highest evaluation must be used, in other words.”
 

 

§ 3.310 Disabilities that are proximately
due to, or aggravated by,
service-connected disease or injury.
(a) General. Except as provided in
§ 3.300(c), disability which is proximately
due to or the result of a service-
connected disease or injury shall be
service connected. When service connection
is thus established for a secondary
condition, the secondary condition
shall be considered a part of the
original condition.

 

7117 Raynaud’s syndrome:
With two or more digital ulcers plus
autoamputation of one or more digits and
history of characteristic attacks ................. 100
With two or more digital ulcers and history
of characteristic attacks ............................. 60
Characteristic attacks occurring at least
daily ........................................................... 40
Characteristic attacks occurring four to six
times a week ............................................. 20
Characteristic attacks occurring one to three
times a week ............................................. 10
NOTE: For purposes of this section, characteristic attacks
consist of sequential color changes of the
digits of one or more extremities lasting minutes to
hours, sometimes with pain and paresthesias, and
precipitated by exposure to cold or by emotional
upsets. These evaluations are for the disease as a
whole, regardless of the number of extremities involved
or whether the nose and ears are involved.

 

7122 Cold injury residuals:

With the following in affected parts:
Arthralgia or other pain, numbness,
or cold sensitivity plus two or
more of the following: tissue loss,
nail abnormalities, color changes,
locally impaired sensation,
hyperhidrosis, X-ray abnormalities
(osteoporosis, subarticular
punched out lesions, or osteoarthritis) ...  30

Arthralgia or other pain, numbness,
or cold sensitivity plus tissue
loss, nail abnormalities, color
changes, locally impaired sensation,
hyperhidrosis, or X-ray abnormalities
(osteoporosis, subarticular
punched out lesions, or
osteoarthritis) ............................... 20
Arthralgia or other pain, numbness,
or cold sensitivity ......................... 10
NOTE (1): Separately evaluate amputations of fingers
or toes, and complications such as squamous cell
carcinoma at the site of a cold injury scar or peripheral
neuropathy, under other diagnostic codes.
Separately evaluate other disabilities that have
been diagnosed as the residual effects of cold injury,
such as Raynaud’s phenomenon, muscle atrophy,
etc., unless they are used to support an
evaluation under diagnostic code 7122.
NOTE (2): Evaluate each affected part (e.g., hand,
foot, ear, nose) separately and combine the ratings
in accordance with §§ 4.25 and 4.26.

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I believe secondary service connections should be rated separate from your service connected disability.  I am service connected to PTSD but won a claim for neuropathy secondary to my original injury.  The neuropathy is rated separate from the other injuries.  Please look at the veterans law blog at this address https://www.veteranslawblog.org/secondary-service-connection/

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I agree with Jlrith; you have done a great job with your homework.  Now, you need to follow up with timely a timely filed NOD, and timely filing the I9, and your other deadlines as well.  

Your citations were on point and superb, as well as being instructive.  Great job!  Dont neglect to cite evidence in YOUR cfile as to how you meet the criteria for the most favorable rating(s).  

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In my case(s),

I have Heart Disease 30% secondary to my original High Blood Pressure 0%, and receive 30%.

I have joints that started 10% for arthritis, but later got 20% because of Range of Motion.

However,

I have Plantar Fasciitis and Arthritis of the same foot, but rated separately at 10 each.

So, I think sometimes, Arthritis is rated separately even with the same area, but, ROM will trump Arthritis as it is only 10% by x-ray evidence.

FWIW,

Hamslice

 

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