Calling all Bilateral Rating experts

[BWA1544]

You all have been so helpful as I help my husband navigate the disability claim process. As I've learned more about the bilateral rating factor, now I am questioning if his rating of 50% awarded back from 2005 was calculated properly. Can you kind folks help me understand if the below ratings should be 50% or 60%? Do any of the ratings qualify for the bilateral factor?

Shrapnel, right foot	0%
Tinnitus	10%
Shrapnel, left foot	10%
shrapnel, right hip	10%
shrapnel, right thigh	10%
shrapnel, right buttock	20%
shrapnel, left buttock	0%
bilateral hearing loss	0%

[vetquest]

The left foot and right leg injuries (hip, thigh, buttock) are bilateral and the tinnitus is not, I calculate you to have 50%.  I also calculated without the bilateral and get 50%.  I would try to get the bilateral hearing loss increased.  The bilateral factors really kick in when you have higher ratings and a hearing increase might do that.  Without knowing specifics I cannot help you further.

[BWA1544]

Thank you for the quick response. I was reviewing the 2005 claims again as we waited for the 2018 claims to be processed. My husband JUST got a decision on the new claims filed in May 2018 and he is now at 90%. He has a right foot condition that is still pending. I believe if right foot comes through at something 20% or higher and with the proper bilateral rating, he could be at 100%. Below is an updated look at all of his ratings. I have the notes from his recent VA appointment for right foot condition and from what I can tell, I cannot estimate what the rating might be. 

Disability	Rating	Decision	Related To	Effective Date
residuals, shrapnel wound, right foot, MG XI	0%	Service Connected		3/21/2005
irritable bowel syndrome (IBS)	10%	Service Connected	Environmental Hazard in Gulf War	7/6/2018
tinnitus	10%	Service Connected		3/21/2005
residual shrapnel wound, left foot, MG XI	10%	Service Connected		3/21/2005
residuals, shell fragment wound, right hip, MG XVI	10%	Service Connected		3/21/2005
residuals, shell fragment wound, right lateral thigh, MG XIV	10%	Service Connected		3/21/2005
patellofemoral pain syndrome, right knee (claimed as right knee condition)	10%	Service Connected		3/26/2018
residuals, shrapnel wound, right buttock, MG XVII	20%	Service Connected		3/21/2005
residuals, shrapnel wound, left buttock MG XVII	0%	Service Connected		3/21/2005
posttraumatic stress disorder with traumatic brain injury (PTSD/TBI)	70%	Service Connected	PTSD - Combat	3/26/2018
Residuals, Shrapnel Wound, Right Foot (claimed As Right Foot Condition)		PENDING

[vetquest]

They are killing you with 10% ratings.  In VA math you need some higher ratings on the bilateral conditions.  An extra 20% bilateral brings you to 89% which is 90%.  I would think about filing for an increase on the pain syndrome.  I would also request TDIU at this point.  TDIU pays at the 100% rating.  If they do not give you TDIU make sure that you file an NOD on your case.

[BWA1544]

I agree they are killing him with 10% ratings. So frustrating. I'm getting worried his pending foot claim will come back as 10% as well. Below are the notes from exam. Care to guesstimate what it will be? 

Muscle Injuries

Disability Benefits Questionnaire

Name of patient/Veteran: xxxxxxxxxxxx

Is this DBQ being completed in conjunction with a VA 21-2507,

C&P Examination

Request?

[X] Yes [ ] No

ACE and Evidence Review

-----------------------

Indicate method used to obtain medical information to complete

this document:

[X] In-person examination

Evidence Review

---------------

XXXXX, XXXXXXXXXX CONFIDENTIAL Page 25 of 98

Evidence reviewed (check all that apply):

[X] VA e-folder (VBMS or Virtual VA)

[X] CPRS

SECTION I: DIAGNOSIS

--------------------

Does the Veteran now have or has he/she ever been diagnosed with

a muscle

injury?

[X] Yes[ ] No

Diagnosis #1: Shrapnel wound foot

ICD code: Y 36.23

Date of diagnosis: 2004

Side affected: [X] Right [ ] Left [ ] Both

SECTION II: HISTORY OF MUSCLE INJURY

------------------------------------

a. Does the Veteran have a penetrating muscle injury, such as a

gunshot or

shell fragment wound?

[X] Yes[ ] No

b. Does the Veteran have a non-penetrating muscle injury (such

as a muscle

strain, torn Achilles tendon or torn quadriceps muscle)?

[ ] Yes[X] No

c. Describe the history (including onset and course) of the

Veteran's muscle

injury: (brief summary):

Shrapnel wound right foot from mortar attack in 2004 in

Iraq.Taken to

field hospital for 3 days and light duty for month.Open

tiny wounds

cleaned and bandaged.Some shrapnel removed.Right arch

painful and

tender.Unable to run anymore.On bare foot places weight on

lateral side

of foot to avoid arch pain.

d. Dominant hand

[X] Right[ ] Left[ ] Ambidextrous

SECTION III: LOCATION OF MUSCLE INJURY

--------------------------------------

1. Shoulder girdle and arm

--------------------------

XXXXX, XXXXXXXXXX CONFIDENTIAL Page 26 of 98

Does the Veteran now have or has he/she ever had an injury to a

muscle group

of the shoulder girdle or arm?

[ ] Yes[X] No

2. Forearm and hand

-------------------

Does the Veteran now have or has he/she ever had an injury to a

muscle group

of the forearm or hand?

[ ] Yes[X] No

3. Foot and leg

---------------

Does the Veteran now have or has he/she ever had an injury to a

muscle group

of the foot or leg?

[X] Yes[ ] No

If yes, check muscle group(s) and side affected (check all

that apply):

[X] Group X: Muscles of the foot: flexor digitorum brevis,

abductor

hallucis, abductor digiti minimi, quadratus

plantae,

lumbricales, flexor hallucis brevis, adductor

hallucis, flexor

digiti minimi brevis, dorsal and plantar interossei

[X] Group XI: Muscles of the foot, ankle and calf:

gastrocnemius, soleus,

tibalis posterior, peroneus longus, peroneus brevis,

flexor

hallucis longus, flexor digitorum longus

4. Pelvic girdle and thigh

--------------------------

Does the Veteran now have or has he/she ever had an injury to a

muscle group

of the pelvic girdle or thigh?

[ ] Yes[X] No

5. Torso and neck

-----------------

Does the Veteran now have or has he/she ever had an injury to a

muscle group

in the torso and/or neck?

[ ] Yes[X] No

6. Additional conditions

------------------------

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a. Does the Veteran have a history of rupture of the diaphragm

with

herniation?

[ ] Yes[X] No

b. Does the Veteran have a history of an extensive muscle hernia

of any

muscle, without other injury to the muscle?

[ ] Yes[X] No

c. Does the Veteran have a history of injury to the facial

muscles?

[ ] Yes[X] No

SECTION IV: MUSCLE INJURY EXAM

------------------------------

1. Scar, fascia and muscle findings

-----------------------------------

b. Does the Veteran have any known fascial defects or evidence

of fascial

defects associated with any muscle injuries?

[ ] Yes[X] No

c. Does the Veteran's muscle injury(ies) affect muscle substance

or function?

[ ] Yes[X] No

2. Cardinal signs and symptoms of muscle disability

---------------------------------------------------

Does the Veteran have any of the following signs and/or symptoms

attributable

to any muscle injuries?

[X] Yes[ ] No

If yes, check all that apply, and indicate side affected,

muscle group and

frequency/severity.

[X] Fatigue-pain

If checked, indicate side affected: [X] Right [ ] Left

[ ] Both

Indicate muscle group(s) affected (I-XXIII) if possible:

Group X and

X1

Indicate frequency/severity:

[ ] Occasional[X] Consistent[ ] Consistent at a more

severe level

[X] Impairment of coordination

XXXXX, XXXXXXXXXX CONFIDENTIAL Page 28 of 98

If checked, indicate side affected: [X] Right [ ] Left

[ ] Both

Indicate muscle group(s) affected (I-XXIII) if possible:

Group X and

X1

Indicate frequency/severity:

[ ] Occasional[X] Consistent[ ] Consistent at a more

severe level

[X] Uncertainty of movement

If checked, indicate side affected: [X] Right [ ] Left

[ ] Both

Indicate muscle group(s) affected (I-XXIII) if possible:

GroupX and X1

Indicate frequency/severity:

[ ] Occasional[X] Consistent[ ] Consistent at a more

severe level

3. Muscle strength testing

--------------------------

Rate strength according to the following scale:

0/5 No muscle movement

1/5 Visible muscle movement, but no joint movement

2/5 No movement against gravity

3/5 No movement against resistance

4/5 Less than normal strength

5/5 Normal strength

Shoulder abduction (Group III)

Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Elbow flexion (Group V)

Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Elbow extension (Group VI)

Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Wrist flexion (Group VII)

Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Wrist extension (Group VIII)

Right: [X] 5/5 [ ] 4/5 [ ]

XXXXX, XXXXXXXXXX CONFIDENTIAL Page 29 of 98

3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Hip flexion (Group XVI)

Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Knee flexion (Group XIII)

Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Knee extension (Group XIV)

Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Ankle plantar flexion (Group XI)

Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Ankle dorsiflexion (Group XII)

Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

If other movements/muscle groups were tested, specify:

Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5

Does the Veteran have muscle atrophy?

[ ] Yes[X] No

SECTION V: OTHER

----------------

1. Assistive devices

--------------------

a. Does the Veteran use any assistive devices as a normal mode

of locomotion,

although occasional locomotion by other methods may be

possible?

[ ] Yes[X] No

2. Remaining effective function of the extremities

--------------------------------------------------

Due to the Veteran's muscle conditions, is there functional

impairment of an

extremity such that no effective function remains other than

that which would

be equally well served by an amputation with prosthesis?

(Functions of the

upper extremity include grasping, manipulation, etc., while

functions for the

lower extremity include balance and propulsion, etc.)

XXXXX, XXXXXXXXXX CONFIDENTIAL Page 30 of 98

[ ] Yes, functioning is so diminished that amputation with

prosthesis

would equally serve the Veteran.

[X] No

3. Other pertinent physical findings, complications, conditions,

signs,

symptoms and scars

----------------------------------------------------------------

------

a. Does the Veteran have any other pertinent physical findings,

complications, conditions, signs or symptoms related to any

conditions

listed in the Diagnosis Section above?

[ ] Yes [X] No

b. Does the Veteran have any scars (surgical or otherwise)

related to any

conditions or to the treatment of any conditions listed in

the Diagnosis

Section above?

[ ] Yes [X] No

c. Comments, if any:

No response provided

4. Diagnostic Testing

---------------------

a. Have imaging studies been performed and are the results

available?

[X] Yes[ ] No

b. Is there x-ray evidence of retained metallic fragments (such

as shell

fragments or shrapnel) in any muscle group?

[X] Yes[ ] No

If yes, indicate results:

[X] X-ray evidence of retained shell fragment(s) and/or

shrapnel

Location (specify muscle group I-XXIII, if possible):

Group X and

X1

Side affected: [X] Right [ ] Left [ ] Both

[X] X-ray evidence of minute multiple scattered foreign

bodies

indicating intermuscular trauma and explosive effect

XXXXX, XXXXXXXXXX CONFIDENTIAL Page 31 of 98

of the

missile

Location (specify muscle group I-XXIII, if possible):

Group X and

X1

Side affected: [X] Right [ ] Left [ ] Both

c. Were electrodiagnostic tests done?

[ ] Yes[X] No

d. Are there any other significant diagnostic test findings

and/or results?

[ ] Yes[X] No

5. Functional impact

--------------------

Does the Veteran's muscle injury(ies) impact his or her ability

to work, such

as resulting in inability to keep up with work requirements due

to muscle

injury(ies)?

[X] Yes[ ] No

If yes, describe the impact of each of the Veteran's muscle

injuries

providing one or more examples:

No running or prolonged walking.

6. Remarks, if any:

-------------------

Mild disability

Current diagnosis is progression of SC disability

Veteran welcomed. DR introduced

Veteran thanked for serving our country

Two identifiers correctly answered

Purpose of exam explained.Decision of claim solely determined

by VBA.

Veteran agreed to proceed with exam

[vetquest]

It looks like they will give 10% because they say mild disability.  I would try to show that there is consistent pain and that it is stated that this injury would interfere with employment.  I am looking at some decisions to see if there is anything specific to pain.

[vetquest]

OK, I looked at some cases including  DeLuca v. Brown, 8 Vet. App. 202 (1995).  This case relates to pain but it is where pain influences movements of the joint.  Veterans not been able to get any rating for pain at this time according to what one law firm states.  This is a sad fact.

That said I would ask for TDIU, the doctor has said this specific wound influences his ability to work.  I would hope the other DBQ's state this too.  I would also request an increase for some of your wounds in a NOD.