Need some help with VA math

[ShrekTheTank]

Just got off the phone with the VFW rep at the regional office and said my Dercums is now at 60% but said I am not at 100% I have done 3 calculators now and I don't understand

tension headaches	30%	Service Connected		12/10/2018
irritable bowel syndrome (to include claimed fecal incontinence, bowel condition, gastrointestinal problems, chronic hypertrophic gastritis)	30%	Service Connected		03/06/2015
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multiple scars that are tender or unstable such as status post inguinal hernia scars; disfigurement from lipomatosis dolorosa; and upper extremity lipoma scars (previously 7805)	30%	Service Connected		12/02/2013
left chest lateral posttraumatic 8th rib, episodic intercostal myalgia (claimed as left rib pain)	0%	Service Connected	Predischarge Exam	12/02/2013
post-traumatic stress disorder (PTSD) (to include claimed cold sweats)	30%	Service Connected	PTSD - Combat	02/12/2014
tinnitus	10%	Service Connected		02/12/2014
left knee strain (previously rated as left knee retropatellar pain syndrome)	10%	Service Connected	Predischarge Exam	12/02/2013
Dercum disease (lipomatosis dolorosa)	10%	Service Connected		12/04/2014
status post right inguinal hernia repair (claimed as pain and numbness, status post right inguinal hernia repair)	0%	Service Connected	Predischarge Exam	10/02/2004
hypertension	0%	Service Connected	Predischarge Exam	10/02/2004
scars, status post lipoma excision, left arm	0%	Service Connected	Predischarge Exam	10/02/2004
scars, status post lipoma excisions, right arm	0%	Service Connected	Predischarge Exam	10/02/2004
left knee retropatellar pain syndrome	0%	Service Connected	Predischarge Exam	06/01/2010
scar with minimal hypoesthesia, status post right inguinal hernia repair	0%	Service Connected	Predischarge Exam	10/02/2004
left chest lateral posttraumatic 8th rib, episodic intercostal myalgia (claimed as left rib pain)	0%	Service Connected	Predischarge Exam	10/02/2004
fibromyalgia	40%	Service Connected		01/05/2016

[Richard1954]

21 minutes ago, Vync said:

3.324 only applies if the veteran has no other compensable SC ratings and is unable to work because of them

I would actually be interested in a  reference before I were to accept this...  the BVA case you posted does not list any actual reference to verify this. 

As a matter of practice I  question the validity  any information any lawyer's office posts on the internet.  I am not saying the information is  right or wrong, just saying  they are  not the best source of information. 

[Vync]

12 minutes ago, Richard1954 said:

I would actually be interested in a  reference before I were to accept this...  the BVA case you posted does not list any actual reference to verify this. 

As a matter of practice I  question the validity  any information any lawyer's office posts on the internet.  I am not saying the information is  right or wrong, just saying  they are  not the best source of information. 

I completely agree!

I found it here: M21-1, Part III, Subpart iv, Chapter 5, Section B - Principles of Disability Evaluation

Quote

III.iv.5.B.2.g.  Assigning a 10-Percent Evaluation for Multiple Noncompensable SC Disabilities

Under 38 CFR 3.324, a single 10-percent evaluation may be assigned when all of the following criteria are met:  a Veteran is suffering from two or more separate permanent noncompensable SC disabilities there are no other compensable SC disabilities, and the SC disabilities clearly interfere with normal employability.  Notes:  Payment of compensation at the 10-percent rate cannot be made in combination with any other compensable disability evaluation.    When entitlement to a 10-percent rating has been established but a subsequent rating decision establishes entitlement to a compensable evaluation for an SC disability, the grant of the compensable SC evaluation is considered the greater benefit.  It is unnecessary to close out the past grant of entitlement under 38 CFR 3.324, as VBMS recognizes payment for the compensable disability as the greater benefit. Reference:  For  more information on when to put into issue in a rating decision and decide entitlement to a 10-percent evaluation under 38 CFR 3.324, see M21-1, Part III, Subpart iv, 6.B.2.b.

 

 

[Richard1954]

3 hours ago, Vync said:

I completely agree!

 

Thank you for that reference... excellent example of the VA law makers talking out both sides of their mouth

[ShrekTheTank]

So here is the issue with them pyramiding the issue they have already granted both conditions.  I would think it would be retaliatory for them now change their mind and combine them?  

[ShrekTheTank]

6 hours ago, Buck52 said:

The rule against pyramiding is an exception, in that it prohibits compensating a veteran more than once for the same disability or same manifestation.

What does the VA mean by “same disability” or “same manifestation”? The important thing to remember is that if you are looking to receive separate ratings as a result of a single disease or injury, the argument that needs to be made is that you suffer from a variety of symptoms that are covered by diagnostic codes that are not duplicate and do not involve overlapping symptomatology. For instance, a veteran who suffers from disfiguring scars, painful scars, and facial muscle damage that limits functionality can be rated separately under each relevant diagnostic code even though the conditions are the result of the same disability. The key in these cases is that the same symptoms cannot be used to support two separate ratings.

Another common example of pyramiding involves mental disabilities. Quite often a veteran will suffer from more than one mental disorder, such as PTSD and bipolar disorder. It is often difficult to determine what manifestations are the results of one mental disorder, and what manifestations are the results of the other. Therefore, typically all mental disorders are rated together. But, it is possible for a veteran to receive separate ratings for two distinct mental disorders if there are manifestations of one mental disorder which are not manifestations of the other. But note, this would not be a simple argument to make and would most likely require an independent medical opinion that describes how each mental disorder has separate manifestations.

As you can see, pyramiding is a complicated issue, and is it also one that the VA often gets wrong. The VA has had a tendency to over-apply the anti-pyramiding rule, so if you have a disability that results in separate symptoms that do not overlap, you may be able to get separate ratings for each condition, and you should appeal your rating decision if the VA fails to separately rate each condition. For such cases, it would likely be helpful to get an independent medical opinion that shows how the single disability results in distinct, separate conditions that do not have overlapping symptomatology.

 

Source: Hill & Ponton Attorney's

thanks Buck52

[ShrekTheTank]

5 hours ago, Vync said:

I was basing my calculations on this:

 

Regarding pyramiding, they might try to pyramid dercums with your scar rating. Decrums does not have a dedicated diagnostic code number, so they likely considered it an analogous rating and rated it under something different. They should be able to tell you if pyramiding was factored in.

Why would they not have already have done this?  Meaning why would they do it now that it is at 60%?  So they can avoid giving me the 100%?