Unfavorable Decision

[allansc2005]

Afternoon folks, hope all is well.

 

I posted this question/concern a few weeks ago, but it seems to have fizzled out, got lost in cyberspace...something?

 

Back on 12/23/2020 I had requested an increase for degenerative disc disease, lumbar spine(previously rated as chronic low back syndrome under DC 5237) currently at 20%, effective date 01/30/2008.

 

Went to my C&P exam, doctor did the usual bend and reach, range of motion(ouch)..on my lower back, and because of the pain, he stopped in the middle of the exam because I was in pain, stepped over to his computer and pulled up my medical records, turned to me and said "Mr.__, I see you have Issues with your entire spine, especially with your lower lumbar.., and I see no need to put you through anymore of these movement and motion tests..."

I grabbed my cane. the doctor helped me stand up, and I left the office.

Last week, I got my decision: Evaluation of degenerative arthritis of the spine with intervertebral disc syndrome, which is currently 20 percent disabling, is continued.

UM OK, but I never had a rated disability for the above, nor did I ask for one, I asked for an increase, as stated in my first paragraph dated 12/23/2020!

 

Now, under my newest rated disabilities, they inserted the new decision stated above, and totally omitted my Rated Disability from 01/30/2008!

It just vanished, gone.., never had it!

 

So, is this a Clear and Unmistakable Error-CUE, or reason for a Higher Review(Formerly NOD)?

As a footnote, I'm TDIU P&T.

 

Thanks,

 

Allan 2-2-0 HOOAH!

 

 

 

 

 

 

 

 

[broncovet]

Ok, sorry I missed question earlier.  

    It sounds like you are relying upon the unreliable ebenefits for information.  Thats not a good idea.  

But, lets go back.  You are 100 percent P and T.  Ok, so you put in for an increase, but your rating stayed the same.  

     My advice is to focus on stuff that will increase your check OR, provide for your family such as DIC in the event of your death.  

To increase 100 percent, you will need some type of SMC S.  

Lets assume you are "not" bedridden, and  do "not" need aid and attendance.  While this may not be true, if you are bedridden and need a and a, then you should apply for those.  

Moving on.  SMC is for "loss of use" also.  Do you have "loss of use" of arms, legs, or other body parts?  If you do, apply for SMC for those.  

Now, there is a "statuatory" SMC S "IF" you have a "single" 100 percent rating plus additional combined 60 percent seperate and distinct from each other.  

    For example, if you are single 100 percent plus an additioanal 40 percent combined, then you may want to appeal to try to get that bumped up to 60 percent.  

     I only recommend appealing stuff that "actually matters" to your check, or, at least matters to your family if you pass.  The other stuff is noise. 

[allansc2005]

@broncovet

 

Getting 100% scheduler and  SMC's are my ultimate goals, and I know how to get there, but I think you misunderstood me. As I stated in my first post:

 

1. I was given a DENIAL decision for a Rated Disability I didn't have. See the Degenerative Arthritis Of The Spine ..I wrote about in my last post? That's not even a listed Rated Disability I had!

2. My C&P exam was for Degenerative Disc Disease, Lumbar Spine...which I asked for.

Sum it up:

 

I did not get the a decision for the condition I asked for, a decision which my C&P exam was for.

 

So, is this a CUE or Higher Review case?

 

 

[broncovet]

You posted:

Quote

I did not get the a decision for the condition I asked for, a decision which my C&P exam was for.

2 Things:

1.  Did you check the c and p exam, and your medical records to see if you were diagnosed by a doctor, for the condition claimed?

DDD (Degenerative disk disease) and Degenerative Arthritis of the spine sound like the same thing, in different words, to me.  You did use the term "Lumbar" which is a specific portion of the spine.   My doctor once told me I had "degeneration" of my knee.  I think he later on in the conversation used the term arthritis.  It might be like saying "wireless phone" or "cell phone".  Pretty much the same thing.  

According to this site, there are some differences between DDD and Degenerative arthiritis:  https://saratogaspine.com/are-degenerative-disc-disease-and-arthritis-the-same/#:~:text=DDD can cause spinal osteoarthritis,pinched nerve in the neck.

     Clemons vs Shinseki showed that Veterans dont have to understand the difference between "Degenerative arthiritis of the spine" and "degenerative Disk disease" to get benefits for same.  A doctor makes the diagnosis.  All claims must have a current diagnosis, in service event and nexus.  What are you diagnosed for?  

2.  However, lets assume I have no idea what IM talking about (likely) and that DDD and degenerative arthritis of the spine are totally different, and that you are owed a decision on the condition claimed.  You can neither appeal, nor file Cue on a decision that has not happened, to appeal, you have to have a decision, and not appeal claims that are not yet completed.   Therefore, your claim would be "pending".  If its pending, then send an IRIS email (and keep a record) inquiriing the status of your status of your claim "Degenerative Disk disease".  

     Its not unusual for VA to delay claims and not adjuticate them, sometimes for decades.  Personally it took me until 2009 to persuade VA to adjuticate a claim from 2002, and, you guessed it, they denied it.  But, with a written decision, I can/did appeal it and eventually won.  

     Hope this helps

     

[allansc2005]

bronco, I think you're still missing my point.

 

Let me put this as simple and plain as possible:

 

I already had and have degenerative disc disease LUMBAR spine dated back to 2008.

I asked for an INCREASE for that degenerative disc disease LUMBAR dated back to 2008.

I DO NOT nor have I EVER been diagnosed with degenerative arthritis of the spine with intervertebral disc syndrome. That is what they came up with on the decision letter which WAS NOT what I asked for an increase  for. IT JUST POPPED OUT OF NOWHERE.

The decision letter stated that the degenerative arthritis of the spine...(remember, I never had this) which is currently 20% disabling, is continued.

 

See where I'm coming from?

 

The VA denied my claim for something I never had nor asked for an increase for!

 

 

 

 

 

 

 

 

 

 

[Carl the Engineer]

I'm confused too.  Did you claim for an EED, i.e., an earlier date for your Lumbar?

Also, the spine is rated as one, entire spine, or in two parts, cervical and thoracolumbar rated separately.  Lumbar is part of Thoracic.

I just put in for an increase for my lower back pain (thoracolumbar spine disease) currently rated at 20% for ROM range of motion.  I also claimed two conditions secondary to the Lumbar, lumbar segmental dysfunction and paravertebral muscle spasm.

It will be interesting how they lump all that together and rate it, but I suspect it will be ROM as anything higher than 20% includes bed rest which no-one prescribes anymore.

Time will tell,

Hamslice

 

 

 

 

Edited February 23, 2021 by Hamslice
cause I can

[broncovet]

 

Im trying to help here!  

According to CCK law website:

https://cck-law.com/blog/va-disability-ratings-for-degenerative-disc-disease/#:~:text=VA rates degenerative disc disease,used to rate degenerative arthritis.

This appears that the maximum you can get for it is 20 percent.  

This is consistent with DDD in CFR:

https://www.law.cornell.edu/cfr/text/38/4.71a

This suggests you "asked for an increase" on a disorder that is already at the maximum.  If I have tinnitus at 10 percent, it does not do much good to ask for an increase in tinnitus, since Im already at the max. 

To get an increase in overall disability rating, you would need to apply for, and get approved for, one or more disabilities with symptoms "other than" the ones you are already compensated for because pyramiding prevents you from getting paid for a symptom twice.  

It would appear what happened, when you applied for an increase (to a condition that is at the max), "somebody" put in a different diagnosis.  

     To repeat:  I suggest you focus on benefits that would "increase your overall compensation" OR help your family with DIC.  

Since you are at 100 percent,  "even if" you get another disability percent rating, it wont increase your benefits "unless" it means you qualify for statuatory SMC S.  To get SMC S, you need a single 100 percent rating plus an additional combined 60 percent, seperate and distinct.  IDK if an additional rating will get you there or not.  Remember, you have to have a "single" 100 percent and additional ratings that combine to 60 percent for SMC S (statuatory). 

Instead, focus on getting SMC if you are already at 100 percent.  I have not seen VA award "more than the maximum" ever.  

Edited February 23, 2021 by broncovet