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re eval and claim


vwitch01

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I was evaluated previously on an issue in 2015 and before that, upon return from deployment. And so, on this last eval, the provider informed me that there were methods supposed to be undertaken during the two previous evals and were relevant because a proper exam could not be done without these tools...ie goniometer and physical exam} nor were there questions relevant to said claim asked or physically asacertained. Do I have an IG complaint for cause or not? and compensation since this last time with the proper guidelines undertaken, there was a change in my rating.

Thank you

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  • HadIt.com Elder

Did you actively appeal the claim when you got the original rating, or did it close? You have 1 yr to appeal a claim's findings. Otherwise you start with the date of the new claim. 

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While I agree its tempting to go after someone you think is at fault, mostly VA employees have zero accountability which includes doctors.  Oh there is an 1151 claim, but I dont see how you can argue you were injured by the doctor not ordering this test.  The only injury would likely be you deserve a higher rating.  I dont suggest you file an IG complaint based on a doctor not using a goniometer.  The doctor is given discretion as far as what tests to administer for a particular patient.  

If you would like to get a higher rating, or earlier effective date, its probably too late to "attack" the c and p examiner, tho that is possible.  

There is a way to challenge the competency of an examiner, however, in the absence of your challenge the examiner is presumed competent.  

Have you appealed the decision within a year?  If not consider applying for an increase if you think you were lowballed, then you can appeal the effective date if you think its wrong.  

If you did get a doctor to use a goniometer to measure your disabiiities, then that could be used as evidence.  You can hire your own private doctor to do an exam with a goniometer and he could provide a report that suggested you should have been rated higher.  

Again, I dont think it would be productive to report a doc for not using a goniometer.  The best that would happen is you could get another exam, and you can do that, anyway, on your own, without reporting the doctor.    I can not see a benefit to you to stir up a hornets nest by reporting the doctor did not use a goniometer.  Rather, find a doctor who will use one, and get examined.  Then argue this exam was more thorough and you deserve a higher rating because of it.  

Edited by broncovet
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I agree with broncovet, go get a second opinion from a specialist.

but you need to wait and see if they deny the claim first?

  some times we think we will be denied because the examiner did not do the exam the what we think he/she did it ,  this examiner may have  had years experience and just go by ROM and your sudden pain...this could turn out to be a favorable exam...we never know what those examiners are going to put in there report until we can get it and read it.

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  • HadIt.com Elder

Welcome to Hadit!

I agree with everyone's responses.

I looked up a number of BVA claim decisions and they seem to either find the VA did nothing wrong by not using the goniometer or remand to have a new C&P performed using the goniometer. The goniometer pretty much applies to range of motion (ROM) measurements, such as in musculoskeletal disability ratings (including dental TMJ ratings). If you get SC for something, getting an accurate ROM matters. Even if you don't get SC, it still matters if you plan to appeal and get SC for it later.

 

Below is the VA's guidance on when to use a goniometer:

Quote

38 CFR §4.46   Accurate measurement.

Accurate measurement of the length of stumps, excursion of joints, dimensions and location of scars with respect to landmarks, should be insisted on. The use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within the Department of Veterans Affairs. Muscle atrophy must also be accurately measured and reported.

[41 FR 11294, Mar. 18, 1976]

 

 

Below is a link the VA's disability questionnaire (DBQ) list. https://www.benefits.va.gov/compensation/dbq_listbydbqformname.asp

This is a good example where the VA instructs a doc to use a goniometer:

21-0960M-14 Back (Thoracolumbar Spine) Conditions
Quote

SECTION III - INITIAL RANGE OF MOTION (ROM) MEASUREMENTS
Measure ROM with a goniometer. During the examination be cognizant of painful motion, which could be evidenced by visible behavior such as facial expression, wincing, etc..., on pressure or manipulation. Document painful movement in Section 5.

Following the initial assessment of ROM, perform repetitive use testing. For VA purposes, repetitive use testing must be included in all joint exams. The VA has determined that 3 repetitions of ROM (at a minimum) can serve as a representative test of the effect of repetitive use. After the initial measurement, reassess ROM after 3 repetitions. Report post-test measurements in question 4A.

However, the current version of that DBQ on the VA web site is dated DEC 2017.

 

The VA used to post "Disability Exam Worksheets" which were used before the DBQ's came about. They were publicly posted online for everyone to see. Unfortunately, those worksheets disappeared in late 2010, but fortunately we can use archive.org to find every instance of them:

https://web.archive.org/web/20100919163356/http://www.vba.va.gov/bln/21/Benefits/exams

Again, continuing with the example regarding the back examination, I found the old one here:
https://web.archive.org/web/20100910012852/http://www.vba.va.gov/bln/21/benefits/exams/disexm53.htm

Here's what I found (in part):

Quote
  1. Cervical Spine

    The reproducibility of an individual's range of motion is one indicator of optimum effort. Pain, fear of injury, disuse or neuromuscular inhibition may limit mobility by decreasing the individual's effort. If range of motion measurements fail to match known pathology, please repeat the measurements. (Reference: Guides to the Evaluation of Permanent Impairment, Fifth Edition, 2001, page 399).

i. Using a goniometer, measure and report the range of motion in degrees of forward flexion, extension, left lateral flexion, right lateral flexion, left lateral rotation and right lateral rotation. Generally, the normal ranges of motion for the cervical spine are as follows:

and

Quote

b. Thoracolumbar spine

The reproducibility of an individual's range of motion is one indicator of optimum effort. Pain, fear of injury, disuse or neuromuscular inhibition may limit mobility by decreasing the individual's effort. If range of motion measurements fail to match known pathology, please repeat the measurements. (Reference: Guides to the Evaluation of Permanent Impairment, Fifth Edition, 2001, page 399).

It is best to measure range of motion for the thoracolumbar spine from a standing position. Measuring the range of motion from a standing position (as opposed to from a sitting position) will include the effects of forces generated by the distance from the center of gravity from the axis of motion of the spine and will include the effect of contraction of the spinal muscles. Contraction of the spinal muscles imposes a significant compressive force during spine movements upon the lumbar discs.

i. Provide forward flexion of the thoracolumbar spine as a unit. Do not include hip flexion. (See Magee, Orthopedic Physical Assessment, Third Edition, 1997, W.B. Saunders Company, pages 374-75). Using a goniometer, measure and report the range of motion in degrees for forward flexion, extension, left lateral flexion, right lateral flexion, left lateral rotation and right lateral rotation. Generally, the normal ranges of motion for the thoracolumbar spine as a unit are as follows:

 

Keep in mind that the exam worksheet for the spine changed in November 2003 and appears to be unchanged through the time the VA took them offline in late 2010. 

Probably the best way to see what criteria was used is to look in your medical records and locate your C&P examination results. Sometimes the VA copied/pasted the worksheet and simply filled in the pertinent sections.

However, in both cases, (cervical/lumbar) , the VA tells the examiner to use a goniometer, just like it does in the DBQ's today. In the BVA ruling below, a veteran contested the examiner "eyeballing" the measurement and here's how that turned out:

https://www.va.gov/vetapp19/files5/19141541.txt

Quote

The Board is aware the Veteran argued in March 2013 that the VA examiner in July 2011 did not use a measuring tool to record his range of motion and the results are therefore inaccurate. The Board notes the instructions in the examination report include using a goniometer. The examiner reported the measurements in degrees, which would imply measurement with a goniometer. There is no requirement that the examiner state that he or she used a goniometer. There is a presumption of regularity that government officials “have properly discharged their official duties.” Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found. Ind. 272 U.S. 1, 14-15 (1926). The Veteran’s contention that the examiner did not use a goniometer (“measuring tool”) does not rebut the presumption of regularity.

Moreover, the physicians who examined the Veteran would have no significant motivation to not conduct a proper examination, but rather it is reasonable to assume that the physicians would be motivated to properly conduct their duties so as to preserve their professional reputation and employment. The Board finds that the presumption that the examiner adhered to VA protocol in measuring the Veteran’s right knee motion is not rebutted.

 

However, for musculoskeletal ratings, 38 CFR 4.40 (Functional Loss), 38 CFR 4.45 (The Joints), and DeLuca v. Brown (1995) are critical. Painful motion is considered to be limited motion. The VA is supposed to try several repetitions and take measurements where pain begins, factor in flare ups, etc... instead of just going with the maximum ROM, even if it is beyond where painful motion begins. It is assumed that the VA does this correctly every time, but it does not happen. The only way to ensure it does happen is to know this and politely inform the doctor if they do it wrong or overlook anything.

 

 

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