Did Sciatic Paralysis, Neuralgia, or radiculopathy exist as a rating in 2000?

[TropicLightning125]

First I'd like to thank all of you for the great assistance you provide! I'm a long time lurker but finally created an account to post this question to the experts today.

Background:

- Discharged from active duty in September 2000

- Participated in a "VA Pilot Program" where you sat with a VA clerk during out-processing to determine any potential disability claims, which were then submitted by the clerk for you.

- In Jan 2001, received a decision letter with the following rating, back dated to my date of discharge: "Service connection for degenerative disease of low back has been established as directly related to military service. An evaluation of 10 percent is assigned under diagnostic code 5293. An evaluation of 10 percent is assigned if there are mild symptoms associated with intervertebral disc syndrome."

Fast forward to 2018. I experienced a herniated L4-L5 disc and had a (mostly unsuccessful) discectomy . I applied for an increase for my Degenerative Disease of the lower back and for radiculopathy of the sciatic nerve in both legs. My claim was closed in October 2019 with no increase for the Degenerative Disc Disease (a story for another time, but a bad C&P was involved and I've already filed a supplemental), and new secondary ratings for the radiculopathy: 10% Left Leg and 10% Right Leg back dated to my 2018 surgery and the right leg increased for some unknown reason to 20% on the date of my (bad) C&P exam in August 2019.

My question:

In reviewing my original 2000 claim decision letter today, I found this statement listed under FACTS: "MRI findings have revealed degenerative changes and degenerative disc disease of the lumbar spine. EMG studies have revealed mild chronic recurrent L-4 root irritation."

Keep in mind, at the time of discharge I was only rated for the Degenerative Disc Disease, not any leg/nerve issues, though it is clear from my Service Medical Records I also had recurring leg pain and numbness.

Is it odd that they literally called out the EMG results in my rating decision but did not grant an award for Sciatic Paralysis/Neuralgia/Radiculopathy back in 2000? Based on the current schedule (http://www.militarydisabilitymadeeasy.com/lowernerves.html) I think the "mild chronic recurrent L-4 root irritation" would have granted a rating of 10% for incomplete partial paralysis (8520) and/or neuralgia (8720). But...did these codes even exist back in 2000? I certainly was not aware or told that the nerve/leg pain was a separate rating. How would I even go about finding out if these diagnostic codes existed in 2000?

In the event there was a rating available for this back in 2000, would this be something that would be eligible for a CUE? Obviously after almost 20 years I'm well outside the window to appeal the decision, but I feel the clear unmistakable evidence is right in the VA's own decision letter, and 20 years of an additional 10% rating makes this worth my time and energy.

Thanks again for all you do!

Edited November 26, 2019 by TropicLightning125
fix subject

[Richard1954]

In 1999, any degenerative disc disease that involved the sciatic nerve would be rated as one issue.   In my case my sciatic nerve damage resulted in dropfoot and I was awarded a K award for the drop foot but I was not awarded anything for the sciatic nerve damage because at that time the VA considered it part and parcel of the back injury.

It wasn't until years later that the va changed the rating guidelines and started to award a separate rating for sciatic nerve damage,  in cases that involved back injuries.

You do  not have a CUE, because at the time of  your 2000 rating the rules and rating guidelines were different than they are now. 

Why did they change the rating guidelines... simply because changing the guidelines resulted in lower ratings because under the new rules bed rest must be prescribed for a specific period  of time, the longer the bed rest the higher the rating, in our time ,  most doctors do not prescribe bed rest. At they same time they started to allow for separate ratings for the nerve problems caused by the back injury. The end result was a lower rating for the back, and low rating for the nerve, unless the nerve was damaged so bad it caused drop foot.  Lower ratings make it harder to reach a 100% scheduler rating.

Edited November 26, 2019 by Richard1954

[Vync]

Welcome to Hadit!

The VA wants you to inform them of the benefit you are seeking --- in writing: 

Quote

§ 3.151 Claims for disability benefits.

(a) General. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. (38 U.S.C. 5101(a)). A claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. (See scope of claim, § 3.155(d)(2); complete claim, § 3.160(a); supplemental claims, § 3.2501(b)).

...

[50 FR 25981, June 24, 1985, as amended at 79 FR 57695, Sept. 25, 2014; 84 FR 168, Jan. 18, 2019]

For the decision made in 2000, the 1985 version of the law would apply. You'd have to look it up to see how or if it differs from what I posted above.

 

Things changes with this court ruling: Delisio v. Shinseki, Aug 24, 2011

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014401/Delisio-v.-Shinseki,-Aug-24,-2011,-25-Vet.App.-45

Quote

Impact on VBA:

No new impact warranting regulatory revision or Manual change.  The Court did not hold that an effective date ultimately assigned for a secondary service-connected disability could be earlier than the causal service-connected disability.

However, the Court’s decision does expand VA’s duty-to-assist obligations, which stems from language in the decision requiring VA to investigate whether a causal disease or condition (to include a causal disease or condition not expressly raised by the veteran) is related to service in order to determine whether the claimed condition is secondarily related to service. 

The investigatory obligation may require VA to obtain an examination to determine whether the causal disease is in fact related to service so that VA can determine whether the claimed condition is secondary to service.  Pursuant to McLendon v. Nicholson, 20 Vet.App. 79 (2006), the first three elements of 38 U.S.C. § 5103A(d)(2) must be met before VA is required to schedule an examination.  Thus, the evidence still must indicate that the causal disease or condition, whether expressly claimed by the veteran or reasonably raised by the record, may be associated with service before VA must comply with the duty to assist and obtain an examination. 

What this means is that if the VA diagnoses other issues during a C&P exam, they must determine if they are related to the claimed condition (even if you didn't claim them outright) and process them accordingly.

Unfortunately, this does not appear to be retroactive to 2000. For CUE, it must be based on the laws/rulings in effect at the time the decision was made.

If your recent claim is still active (not final/closed), you might want to consider requesting an earlier effective date.

 

Edited November 26, 2019 by Vync

[brokensoldier244th]

Yes that existed in 2000. I don't know anything about cue's though.

[TropicLightning125]

38 minutes ago, Vync said:

If your recent claim is still active (not final/closed), you might want to consider requesting an earlier effective date.

So my recent claim was closed in October, but I have filed for a supplemental review based on errors made by the examiner during my C&P exam and false statements made on the DBQ. Because of this I had requested a new C&P exam before my claim was decided but never received it. It is now the basis for my  "new evidence" 

One of the "specific issues" I cited on the supplemental form (20-0995) was the effective date for my radiculopathy rating. In the October decision my right leg was awarded 10% effective the date of my herniated disc diagnosis (July 2018), then raised to 20% effective the date of my C&P exam (August 2019). My contention was that the 20% should have been effective at least as far back to back to the date of my herniated disc diagnosis (July 2018).

I also listed as supporting evidence in an attachment to my supplemental claim "Evidence of severe shooting pain and numbness in my right leg exists in orthopedic, neurology, physical therapy, and sick call visits of my Military medical records from 1995-2000. More recent evidence of the severity of my right leg radiculopathy going back to at least 2014 exists in my private physician records from Dr. X on (multiple dates listed)". I wish I had found my old decision letter sooner because I would have listed that as evidence too...

If I'm understanding you correctly, you're saying I should challenge the effective date all the way back to when my original 2000 claim was filed? How would I do that?

I have a new C&P exam (for the supplemental) next Thursday. Would I bring it up then? Should I put something in a statement and fax/mail it in? Because VA is so awesome, I can't add files to the supplemental at va.gov like I could my regular claim...

Thanks 

[TropicLightning125]

59 minutes ago, Richard1954 said:

In 1999, any degenerative disc disease that involved the sciatic nerve would be rated as one issue

Well darn, Ok, that's kind of what I was wondering and it makes sense why they mention the nerve root issues in the 2000 decision letter now. That said, I still plan to use that letter as evidence my radiculopathy goes back much further than 2018 so not a total loss.

 

1 hour ago, Richard1954 said:

It wasn't until years later that the va changed the rating guidelines and started to award a separate rating for sciatic nerve damage,  in cases that involved back injuries.

It sure would have been nice if when they changed the rating guidelines VA had informed people who were rated under the old guidelines that "hey you might be eligible to claim these separately and for a higher, combined rating now", but I know, that's just crazy talk lol. Honestly I wouldn't have even known I could claim it (radiculopathay) last year except for the fact my surgeon was an AF vet and told me I should.

[Richard1954]

On 11/26/2019 at 2:03 PM, TropicLightning125 said:

It sure would have been nice if when they changed the rating guidelines VA had informed people who were rated under the old guidelines that "hey you might be eligible to claim these separately and for a higher, combined rating now"

Factually, it is very unlikely someone would get a higher rating for either the back or sciatic nerve after having received a higher rating prior to the change.... 

I was rated 60% in 1999 this included the sciatic nerve damage and the dropfoot and bed rest was not a requirement for any rating at that time.

Today if my back  were re- rated its likely I would be rated 10% for  range of motion and maybe 10% for mild sciatic nerve damage  and likely for the tibial nerve under 8524 would be rated at  30% and I would not get a K award for drop foot  combined the rating would be 43.3 % or 40%    I have never been prescribed bed rest in 30 years so I would not be rated under incapacitating eposides

This also explains why I never tried to get an increased rating either.... because one 60% rating is better than 3 ratings combined at 40%