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

[TropicLightning125]

19 hours ago, Richard1954 said:

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%

Certainly not if you were already receiving a higher rate, but in a case like mine it would have made a huge difference.

I received 10% total for my "mild" back pain, sciatic nerve damage, and leg pain back in 2000. Under the new system (it looks like the new IVDS ratings went into effect September 2002 http://www.militarydisabilitymadeeasy.com/historicvasrds.html#disc) I would have received separate ratings for the back and each leg like I am now. I'd have had a combined 30% (10% back, 10% Left Leg, 10% Right Leg) with bilateral factor that would have put me at 30%. 30% would have also made me eligible for with dependents rate. If I'd been rated using these "new rules" starting in say Jan 2003, I'd have received an additional $75,000+. That's not insignificant.

[Vync]

On 11/26/2019 at 9:48 AM, TropicLightning125 said:

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" 

Sometimes the VA may simply opt to accept the doctor's assessment over yours (unless you are a doctor). You might need to get an IMO from another doc if the VA doesn't grant you a new exam.

On 11/26/2019 at 9:48 AM, TropicLightning125 said:

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?

Herniated disc is typically based on limited ROM, abnormal gait or spinal curvature, or IVDS (lots of bedrest). If your evidence shows you met criteria for 20% (or higher) in July 2018, they should backdate it.

I'm still not 100% certain on how to ask for a backdated EED to when you got out. There are some cases where one may have filed a claim, been denied, but may have met the rating criteria back then. Then later got SC and got backdated. I'm actually researching this part for myself. If you didn't file a claim after you got out, then you might not be able to get it backdated.

 

On 11/26/2019 at 9:48 AM, TropicLightning125 said:

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...

Keep in mind the doc at the upcoming exam is going to care more about completing the current request. If you have relevant evidence to continue or increase your claim, that's what's most important. As a courtesy, when they are finished you can ask them about it and see what they say, but they will not be able to change what happened in past exams.

You can always mail in or fax the additional documentation. Yeah, their online services are helpful, but leave a lot to be desired.

[Richard1954]

2 hours ago, Vync said:

I'm still not 100% certain on how to ask for a backdated EED to when you got out. There are some cases where one may have filed a claim, been denied, but may have met the rating criteria back then. Then later got SC and got backdated. I'm actually researching this part for myself. If you didn't file a claim after you got out, then you might not be able to get it backdated.

 

I had an issue when I medically retired from the Army specifically for Asthma/COPD... Initially the VA denied the claim even though I had been medically retired for these issues. It tool well over two years under a CUE Claim before they awarded me 30% for the Asthma and ignored the COPD altogether... The awarded me 10% from the date of my retirement and then 30% from the date of my first treatment for asthma after retirement.  At that time I knew little about VA disability and was too busy to learn as I was trying to support a family.  COPD was finally granted in 2005  but I had to do another cue claim because under the rules I can't have a separate awards for asthma and COPD, they must combine the awards to one condition.  I have an issue at the BVA now where they latter awarded TBI in Sept 2016, but they had the medical records in 1986 and also ignored it then.  I am trying to get an EED but candidly I doubt it will be approved... even though there was an implied claim in 1986. 

Some raters at the VA have  no idea what they are doing......

 

[Vync]

@Richard1954 You can be granted SC for both asthma and COPD, but under pyramiding they would use the higher rating of the two to be factored (as compensable) into your combined disability rating. if one gets worse to warrant a higher rating, consider filing for an increase.

[Richard1954]

2 hours ago, Vync said:

@Richard1954 You can be granted SC for both asthma and COPD, but under pyramiding they would use the higher rating of the two to be factored (as compensable) into your combined disability rating. if one gets worse to warrant a higher rating, consider filing for an increase.

Yes...  in my case I was at 60% for Asthma and 30% for secondary COPD, which never made sense because both were rated based  on the  Pulmonary Functions test... so both should have been 60%.. So when I did the CUE, the VA severed the rating for COPD, but by the time they severed the rating I was already on Oxygen so they increased me to 100% for do to home oxygen use under 6602 Asthma.  However,  Asthma rating do not include a 100% rating for oxygen use.  Technically,  I still hold the 30% for COPD ( and sleep apnea for 50% ) but they are all lumped in together with one rating. Ironically while they severed the separate 30% rating for the COPD  they did not sever the rating  for sleep apnea.  To have 1 rating for 3 issues really suck. While Asthma and COPD overlap, sleep apnea is not a pulmonary disease it is a sleep disorder.  Even though Asthma & COPD do overlap they are completely different diseases. In Asthma after an attack lungs return to normal, in COPD lungs just continue to go downhill, so technically they should not lump any of the three into one rating.  But the VA is going to do what they want to do.  What really gets me upset about this is that the VA doesn't give any consideration to special compensation and that doesn't seem right. Many people with COPD have a 100% rating due to oxygen use, and that is  bad enough, but to have 3 conditions really makes my life harder. The point I am trying to make is that they all have individual challenges yet the VA treats them  as one disease. It just isn't right.....  anyway sorry for the dissertation.  

[Vync]

I agree with you. I don't believe it is right for the VA to use pyramiding to get out of paying veterans for all disabilities. It would be really nice if the pyramiding rule can eventually get ruled unconstitutional.