Ulnar Neuropathy

[awgv001]

Short backstory, - Original claim date 2012

I was diagnosed and had surgical intervention on 2 different accounts for ulnar neuropathy in 2010 in service.

My original claim (separation exam 2012) was for ulnar neuropathy ONLY, and muscle injury was unclaimed and/or not added to this list.

STR's clearly show atrophy and weakness in grip strength etc. in post operative reports and all the physical therapy I went through.

I want to claim muscle injury, but never attempted to as I felt like it was an extension to the nerve issue. Group VII - Code 5307 right?

I wasn't sure if it could be claimed separately. Would this be pyramiding?

My question is -

It was never added as a claimed injury in my original claim, though it is clearly related to the ulnar neuropathy I'm SC'd for as a secondary.

What should I do? Am I out of an EED because it went unclaimed, though there's an abundance of evidence that supports that muscle injury was present at that time?

Since it's been so long, do I have to file a New or Secondary claim or do I seek out CUE?

@Vync @Buck52 @pete992 @Berta @vetquest @shrekthetank1 - Intent to File has been partially completed - but I'm holding off on submitting it if it's the wrong directions for this particular case.

Edited March 11, 2020 by awgv001

[awgv001]

1 hour ago, shrekthetank1 said:

When did you actually win your case?  Did you appeal for anything else?  meaning did it stay open any longer?  If not then I would say you have to file and get service connected first.  During this fight I would add in all the Eelier dates you reference if you want to fight for an EED.  They will deny it.

Next if you want to fight for your EED then File an appeal once you have won your SC.  I know this is a very long process, but you can't put the cart before the horse in this situation.  You can win this, but it is a very hard fight!  

My case is my original claim via separation exam in 2013. I never appealed the original claim.

[Buck52]

you may need to read this about pyramiding.  

 

https://cck-law.com/blog/pyramiding-how-to-avoid-stacking-your-va-ratings/

 

Source: CCK Law

[awgv001]

As promised, here is a redacted copy of my first and original claim.

[ruby]

If the muscle injury caused the neuropathy I’d think it’s probably pyramiding.   What symptoms do you have that are different from the neuropathy?

with that said I really don’t know the answer.

[Vync]

@awgv001, I found the regulation covering muscles and nerves. 4.55(a) talks about how pyramiding works between muscles and nerves.

https://www.law.cornell.edu/cfr/text/38/4.55

Quote

§ 4.55 Principles of combined ratings for muscle injuries.

(a) A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions.

(b) For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions: 6 muscle groups for the shoulder girdle and arm (diagnostic codes 5301 through 5306); 3 muscle groups for the forearm and hand (diagnostic codes 5307 through 5309); 3 muscle groups for the foot and leg (diagnostic codes 5310 through 5312); 6 muscle groups for the pelvic girdle and thigh (diagnostic codes 5313 through 5318); and 5 muscle groups for the torso and neck (diagnostic codes 5319 through 5323).

(c) There will be no rating assigned for muscle groups which act upon an ankylosed joint, with the following exceptions:

(1) In the case of an ankylosed knee, if muscle group XIII is disabled, it will be rated, but at the next lower level than that which would otherwise be assigned.

(2) In the case of an ankylosed shoulder, if muscle groups I and II are severely disabled, the evaluation of the shoulder joint under diagnostic code 5200 will be elevated to the level for unfavorable ankylosis, if not already assigned, but the muscle groups themselves will not be rated.

(d) The combined evaluation of muscle groups acting upon a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder.

(e) For compensable muscle group injuries which are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups.

(f) For muscle group injuries in different anatomical regions which do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under the provisions of § 4.25.

(Authority: 38 U.S.C. 1155)

[62 FR 30237, June 3, 1997]

 

 

[awgv001]

11 minutes ago, Vync said:

@awgv001, I found the regulation covering muscles and nerves. 4.55(a) talks about how pyramiding works between muscles and nerves.

Ok, so this confirms that I should have had a separate rating for muscle injury from the git-go.

Very helpful as always @Vync !

I filed the claim, and I guess once it is SC'd -- and that's when I can challenge the EED based on the original claim, where muscle injury  and atrophy was recorded right? Or would the EED be the date of the FDC since the condition was not claimed at the time?

Edited March 12, 2020 by awgv001