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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Renee Kinney

C&P exam for back condition

Question

Just had my C&P exam last Monday.  Worried about the back exam that was conducted (DAV added it to my paperwork with other issues I was having with my knee).  I have had  a 40% rating for my back for 18 years.   My concern is that they will recommend a reduction even though my symptoms have increased.  The moving side to side I can do, cannot bend very far forward or backward.  I was very straight forward during the exam, voicing what my limitations were.  But I was reading on several other websites to where the VA goes by the bending and movement performed during the C&P for evaluating the back.  I do remember my first exam I had a flare-up to where I could not bend anyway at all.  That is where the initial 40% came from.  Should I be concerned?

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http://www.danaise.com/understand-the-new-rating-for-back-and-neck-spinal-disability/

 

the disability testing for spinal issued was developed after WW1  and remained unchanged until a couple years ago. VA was hesitant to use new testing that would garner higher ratings. make sure they are rating you under the correct diagnostic code. VERY IMPORTANT..

Most veterans have spinal issued due to service but VA isnt too keen on service connection. beware of getting rated under the wrong diagnostic code that has limited comp percentages!!! or doesnt allow for secondary conditions,     I.E cervogenic headaches, radiculopathy, ect

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After maintaining your percentage for five years, the VA is supposed to consider it stabilized. This means the VA is not supposed to reduce the rating unless there is sustained improvement, not necessarily from a single exam. § 3.344 Stabilization of disability evaluations is worth reading.
 

Additionally, the information below must also be followed. These are often overlooked by most examiners regarding flare ups.

Quote

The Board must consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation-of-motion diagnostic codes.  38 C.F.R. §§ 4.40, 4.45; see Johnson v. Brown, 9 Vet. App. 7, 10 (1996). 

When assessing a veteran's level of disability, the examiner must "express an opinion on whether pain could significantly limit functional ability during flare-ups."  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 

If feasible, limitations of functional ability should be expressed in terms of additional limitation of motion.  Id.  See also Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

 

 

Painful motion is deemed limited motion. If your max ROM is different from ROM where pain begins, they VA is supposed to take the latter measurement and use it to determine the rating.

I recommend you get the C&P results and compare the findings against the VA's current rating criteria for the spine (below). This should give you an idea of what to expect. If the VA comes back with a proposal to reduce, carefully look at the C&P results, rating criteria, and your medical records. If you can show there has not been any sustained improvement, that would be great. If you visited non-VA doctors, be sure those records are provided to the VA along with a release of information authorization form.

§4.71a   Schedule of ratings—musculoskeletal system

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.  

eCFR graphic er27au03.003.gif

 

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