IVDS and Pyramiding

[paulstrgn]

I had posted this in the wrong location before so I apologize.

 

I have an IVDS question. I am currently rated at 

20% for Intervertebral disc syndrome and degenerative arthritis with scoliosis, spondyloarthropathy, and thoracolumbar strain

20% for  left lower extremity radiculopathy affecting the femoral nerve

20% right lower extremity radiculopathy affecting the femoral nerve

20% for left lower extremity radiculopathy/sciatic and external popliteal nerves(previously rated as radiculopathy, left lower extremity (also claimed as nerve damage and nerve damage to the back))

20% for right lower extremity radiculopathy/sciatic and external popliteal nerves (previously rated as radiculopathy, right lower extremity (also claimed as nerve damage and nerve damage to the back)).

I had submitted a claim for increase for my IVDS to 60%, I had doctors letter for more than 12 weeks of incapacitating episodes. I received a decision denying my claim for the following reasons: 

Under the “Reason for Decision” it does mention the one doctor’s letter which excuses me from work (which was for 40+ days), that it is not the same as bed rest. An increased rating for IVDS requires prescribed bedrest. Regardless of whether work excuse is bedrest, it is to your benefit that IVDS with degenerative arthritis with scoliosis, spondyloarthropathy, and thoracolumbar strain be rated without reference to bedrest. The highest evaluation for IVDS is 60% and that I am currently rated at 20% for IVDS, 20% for left lower extremity radiculopathy/sciatic and external popliteal nerves, 20% for right lower extremity radiculopathy/sciatic and external popliteal nerves, 20% for right lower extremity radiculopathy affecting the femoral nerve and 20% for right (I am assuming they meant the left) lower extremity radiculopathy affecting the femoral nerve for a combined total of 70%. You cannot be separately evaluated for all of these conditions as a Veteran is not entitled to separate evaluations for conditions that cause similar symptomatology and affect the same body part. Assigning separate evaluations would be a violation of the CFR. Your current rating of IVDS without prescribed bedrest and the additional separate ratings for radiculopathy is the greater benefit.

Is this considered pyramiding or am I entitled to both?

If this is the incorrect way to ask the question please let me know.

Thanks in advance for your assistance.

Paul

[Buck52]

§4.14   Avoidance of pyramiding. CFR 38 § 4.14

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.

However it also states this:

''some may be service connected, others, not.'' 

[paulstrgn]

Sorry...making sure I am understanding correctly. Since the 12 weeks of incapacitating episodes can be related to my nerve issues it would be considered pyramiding. Is the 20% the highest I can have for my type of IVDS?  Am I correct that I can also be rated for IVDS without the 12 weeks of  incapacitating episodes based on lack of movements forward flexion?  I am not sure if I would qualify under this part anyway, because depending on the day is how much I am able to move my back without pain. Any information provided is always appreciated.

[paulstrgn]

Does anyone know if I can be rated for limitation of movement of my back because of the pain and fatigue I have. I was reading DeLuca v. Brown but I am not sure if it still considered pyramiding or not since I have been rated for nerve issues in my lower legs because of my scoliosis. I experience back pain and fatigue after only a few minutes (10-20 minutes) of yard work, or any other type of physical activities to include prolong walking. 

 

[broncovet]

I have not seen your records, (as well as your previous decisions), but this appears to be a judgement call made by the rating specialist.  

My recommendation would be for you to check the rating criteria, and compare the criteria (plural) to your symptoms.  If you feel you should get a higher rating, then file a nod, disputing the decision.  

If you have been "off" for 40 days, are you able to work?  If you are unable to work due to SC conditions, then you should be rated 100 percent or TDIU.  

My intuition is that your rating is too low, mostly because that is the VA's THIRD favorite thing:  After denials and delays, the Va's favorite is lowballing you.  

Yes, pain and limitation of motion should be factored in, per Deluca.  If this, or a previous decisions did not list "pain and ROM limitiation" in its reasons, then you should be compensated for these, also.  

A "favorite" denial/lowball method of the VA's is to allege that its pyramiding, and it often is not.  

If this decision is a VARO decision, then you should file a NOD. 

If this was a BVA decision, then you should hire an attorney to represtent you at CAVC in a NOA.  

Its possible, or even likely, that the VA either a) did not HAVE all your evidence, and you had more than they cited, or b) you had the evidence and they did not read it.  Sometimes c, which is both..they did not read your evidence you had, and the VA lost some also.  You should order a copy of your cfile and read for yourself..look up the DC's they listed.  

[paulstrgn]

I know that when I filed for an increase for my IVDS (I had more than 6 weeks of bed rest), they denied it because they said I would go from 70% (back and lower leg nerve issues) to 60% if they granted an increase to the IVDS. They  said I am cannot be rated for both since it would be pyramiding. 

I am still working full-time even though I have to take sick leave when my back is acting up, so I do not want to receive TIDU.

I agree with you that it is probably too low and that the rater did not look at all the evidence I had submitted. I always re-submit all the evidence when I file a claim,  I want to make sure they have everything. I even take MRIs and x-ray results so the examiner has a copy of it. I have never had a C&P with the VA, it's always been contractors (QTC or LHI) so that they also have the medical evidence for their write up.

I was given 20% for my back wen I first filed (which was 20 years after retirement). I will file a claim requesting an increase for my back due to limitations of movement from pain and fatigue for my back. 

I have requested another copy of my C-File to see what is now in it. I need to look at the older copy of my C-File and see what it says about my back.

Thank you for the suggestions.

[broncovet]

Dont file a new claim, file a NOD.  A new claim may hurt your effective date, while a NOD should preserve your effective date and entitle you to Retro$$.  File it on the applicable NOD form.