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

[paulstrgn]

I will have to see if I can, the reason being I believe I was going with the IVDS with an increase to 60% since I was off more than six weeks because of the back and legs.

I was looking through my C-File I had received (I must admit I did not read it carefully enough), the decision was made on 3/9/2016 (original decision). for my back the original decision stated the following:

Service connection for degenerative arthritis with scoliosis, spondyloarthropathy, and thoracolumbar strain has been granted because this condition, which existed prior to military service, permanently worsened as a result of service. The preservice percentage is normally deducted before assigning any service connected evaluation less than 100 percent. Since the preservice percentage is zero, no deduction is necessary. A 20 percent evaluation is assigned from July 26, 2015, the date we received your claim. The VA examiner opined that your lumbar spine condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by and in-service event, injury, or illness.
We have assigned a 20 percent evaluation for your lumbar spine based on:
• Combined range of motion of the thoracolumbar spine not greater than 120 degrees
• Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees Additional symptom(s) include:
• Painful motion upon examination
The provisions of 38 CFR §4.40 and §4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown and Mitchell v. Shinseki, have been considered and applied under 38 CFR §4.59. A higher evaluation of 40 percent is not warranted for degenerative arthritis of the spine unless the evidence shows: 
• Favorable ankylosis of the entire thoracolumbar spine; or, 

• Forward flexion of the thoracolumbar spine 30 degrees or less.

I remember when the evaluation was completed, it was with QTC that they could not measure me with the (can't remember what the measuring tool is called) because I asked the doctor should I stop when it starts to hurt and she said yes. Now I was barely able to move because of the pain so she was not able to take a measurement. So I don't understand how the original rating was reached. I don't see anywhere on her DBQ where it states she was unable to take a reading. The DBQ also list under medical history the following:

"His back aches on a scale of 1 - 10 with 10 being the worst will be anywhere between 7 - 10 depending on the day. He no longer stand as straight as he use to and find himself bent over more and more because of the pain. He currently takes two Aleve's daily to help reduce the pain (it only helps a little). He was told recently when his back was x-rayed that his curve is now 50 degrees, it was around 28 degrees previously. When he first went into the military he was 73 inches tall. When he was recently measured he is now 72 inches tall."

Should this statement not have triggered the DeLuca criteria? 

As you can see I have dropped the ball and may have cost myself some money.

Sorry I know this is a lot to read.

5242 DEGENERATIVE ARTHRITIS WITH SCOLIOSIS, SPONDYLOARTHROPATHY, AND THORACOLUMBAR STRAIN

Service Connected, Peacetime, Aggravated Static Disability 20% from 07/26/2015

Here is a copy of the DBQ - redacted 

DBQ for Spine on 1-20-2016.pdf

Edited October 4, 2018 by paulstrgn

[paulstrgn]

@broncovetIs it to late to file a NOD on a case where I received the decision on 3/9/2016 but did not discover that they failed to use the DeLucia criteria on me until after I received a copy of my C-File in October 2017? I know it is my fault for not catching this sooner so if I have missed the window to file a NOD then so be it.

 

Edited October 6, 2018 by paulstrgn

[broncovet]

Yes, its too late, UNLESS you did not receive notice of your appeal rights.  Is that with the decision?  

You have one year to file a NOD on a VARO decision.  

[paulstrgn]

I did receive appeal rights, I was not sure since  I had no idea that (in my opinion) the DBQ did not take into consideration of the pain and fatigue. I did not receive the C-file until 10/2017.  But if I missed it I missed it, it is not the end of the world needless to say.