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Painful motion rule


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I'm looking at a copy of my last c&p exams for arthritis.  I was denied for no diagnosis, which is an issue I am appealing because I have more than one.  However, the examiner checked the block "Pain noted on exam but does not result in / cause functional loss" for many of my joints with varying Ranges of motions( such as flexion or exetension).  Would this qualify as the objective evidence of pain for the painful motion rule?

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First, you need service connection. I was given a 0% SC for painful movement of my left ankle.  An x-ray was not given as part of the C&P.  A year and a half later I asked for an increase and

Love the inconsistency.  4.59 says objective evidence of painful motion should be rated at the minimum compensable level. Digging deeper into m.21 (sorry I don’t remember the exact reference) once X-r

It is not unusual for the C&P examiners to miss evidence. For them to get dermatology mixed up with rheumatology could be either a typo or simply rushing through. Level of expertise (speciali

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SPO If you are diagnosed and service connected for a disability and your symptoms do not meet the minimum rating criteria,  you would be rated at 0%. But it still is s-c. If you have pain you can get a disability even if it is 0% rating. Others can chime in but I've seen it several times here on Hadit.

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What I’m trying to clarify is if that statement from my exam is grounds enough to give me the 10% (the minimum rating) under CFR 4.59 painful motion.  Does that equal objective evidence of painful motion. Some of the joints do not have range of motion reduced enough to get the rating based on that but the do hurt through range of motion

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@SPO I was initially SC via 4.59 for TMJ way back in 2000. My max ROM value was not within a ratable range, so they used 4.59 to grant me the minimal 10% rating. I currently have a claim at the BVA for clear and unmistakable error because they failed to consider functional loss (4.40 and 4.45) at that time. Back then, they had more generic C&P exam worksheets vs. the modern DBQ's with the "Pain noted on exam but does not result in / cause functional loss".

However, I think your consideration of 4.59 is promising.

 

Here's the M21-1 article which includes references to how they are supposed to handle 4.59...

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014194/M21-1-Part-III-Subpart-iv-Chapter-4-Section-A-Musculoskeletal-Conditions?query=4.59

 

I included a second article for you: Southall-Norman v. McDonald, Dec 15, 2016, 28 Vet.App. 346 (2016)

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000056859/Southall-Norman-v-McDonald-Dec-15-2016-28-VetApp-346-2016?query=4.59

Quote

What the case is about:

The Court held that 38 C.F.R. 4.59 is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated upon range of motion (ROM) measurements. 

The Court held that section 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is evaluated is predicated upon ROM measurements. 

If I am reading that right, "Pain noted on exam but does not result in / cause functional loss" may still qualify you for 10% under 4.59. Of course, you have to get SC first. If you are not SC at all, then it could be a case both the objective (the examiner) and subjective (your lay statements) were ignored."

 

 

 

 

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First, you need service connection.

I was given a 0% SC for painful movement of my left ankle.  An x-ray was not given as part of the C&P.  A year and a half later I asked for an increase and they did an x-ray and I was given 10%, because of arthritis of the ankle, evidence by x-ray.

Painful movement without arthritis or limited ROM, I'm not sure.

I do know, 10% for x-ray and more for range of motion, etc.

FWIW,

Hamslice

SC is most important.

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      Severe
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      Severe
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      Severe
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      Severe
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      Severe
                 Left upper extremity:  [ ] None   [ ] Mild   [X] Moderate   [ ]
      Severe
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      Severe
                 Left upper extremity:  [ ] None   [ ] Mild   [X] Moderate   [ ]
      Severe
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                Left:  [ ] Not affected   [ ] Mild   [X] Moderate   [ ] Severe
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          ---------------------------------
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          ----------------------------------------------------
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          13. Other pertinent physical findings, complications, conditions, signs,
              symptoms and scars
          -----------------------------------------------------------------------
          a. Does the Veteran have any other pertinent physical findings,
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             listed in the Diagnosis Section above?
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          c. Comments, if any:
             No response provided.
            
          14. Diagnostic testing
          ----------------------
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          ----------------------
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          [X] Yes   [ ] No
         
              If yes, describe the impact of each of the Veteran's cervical spine
              (neck) conditions, providing one or more examples:
                Veteran is capable of limited lifting, carrying, and bending.
               
               
          16. Remarks, if any:
          --------------------
              NOTE:Veteran performed neck flexion repeition which reduced ROM to
      32deg.
               Unable to perform any further repetition for other ROM maneuvers.
             
      *************************************************************************
              Additional exam request information:
       
              For any joint condition, examiners should test the contralateral joint,
              unless medically contraindicated, and the examiner should address pain on
              both passive and active motion, and on both weightbearing and non-
              weightbearing.
              In addition to the questions on the DBQ, please respond to
              the following questions:
              1.      Is there evidence of pain on passive range of motion testing?
              YES
              2.      Is there evidence of pain when the joint is used in non-weight
              bearing? YES
             
             

      ****************************************************************************

                                       Medical Opinion
                              Disability Benefits Questionnaire
          Name of patient/Veteran: 
          ACE and Evidence Review
          -----------------------
          Indicate method used to obtain medical information to complete this
      document:
         
          [X] In-person examination
         
          Evidence Review
          ---------------
          Evidence reviewed (check all that apply):
         
          [X] VA e-folder (VBMS or Virtual VA)
          [X] CPRS
          Evidence Comments:
            BOARD REMAND
           
          MEDICAL OPINION SUMMARY
          -----------------------
          RESTATEMENT OF REQUESTED OPINION:
          a. Opinion from general remarks: (a)  Please state all diagnoses as to the
          Veteran's cervical spine, and
          address all diagnoses already of record: herniated disk and bulging disk
          of the cervical spine and spondylitic changes, muscle spasm and
          contusion/compression, spondylosis and degenerative disc disease of the
          cervical spine, mechanical cervical pain syndrome and radiculopathy. 
          (b)  Please provide an opinion as to whether it is at least as likely as
          not (a 50 percent or greater probability) that any diagnosed cervical
          spine disability was caused by or etiologically related to active duty. 
          Please specifically address the back injuries and complaints of back pain
          noted in the STRs.
          (c)  Please specifically address the Veteran's lay statements that he has
          suffered cervical spine pain since service, and that in service he
          suffered injury to his neck while carrying heavy equipment and continuous
          wear of duty gear.
          (d)  Please address the conflicting evidence of record and offer a
          clarifying opinion, notably the February 2013 VA examination positing a
          negative nexus, and the April 2016 private opinion positing a positive
          nexus.

          b. Indicate type of exam for which opinion has been requested: NECK
          TYPE OF MEDICAL OPINION PROVIDED: [ MEDICAL OPINION FOR DIRECT SERVICE
          CONNECTION ]
          a. The condition claimed was at least as likely as not (50% or greater
          probability) incurred in or caused by the claimed in-service injury, event
      or
          illness.  
          c. Rationale: Upon review of all available medical evidence, including
      eVBMS,
          virtual VA, and Board Remand, the following pertinent information is
      obtained
          and reported in 'Evidence Comments': Prior VA Examination, 6/25/96, reports
          Mr. served in the Marine Corps.  he was inducted in 1990 and
          received separation with an honorable discharge in 1996.    Medical History-In 1992, he
          had onset of pain in the neck area diagnosed at Quantico.  Xrays were
          negative.  Impression was muscle spasm and stress. Enlistment RME/RMH for
          national guard, 4/13/98, reported no neck problems and normal exam of the
          spine.  Miami VAMC, Outpatient clinic, 5/6/2005:Assessment is chronic neck
          and low back pain-Will get plain films and MRI, does not want any meds.
          2/28/2013, VA examination opines "Unable to find SMR evidence of significant
          neck injury or complaint in service.  No evidence to support chronicity of
          problem for over 10 years post-discharge."  THIS OPINION IS GIVEN LOW WEIGHT
          BECAUSE IT IS NEITHER SUPPORTED NOR CONSISTENT WITH THE RECORDS IN FILE THAT
          SHOW COMPLAINTS OF NECK PAIN INDICATING A CHRONIC CONDITION.  4/29/15, DBQ
          neck was completed providing a diagnosis of mechanical cervical pain
      syndrome
          and radiculopathy. As received 4/8/16, VA physician, ,
          states that the Veteran suffers from cervico-occipital neuralgia and
      cervical
          radiculopathy with bulging disc "are as likely as not a direct result of
          blunt trauma received during the patient's military career.  His conditions
          are a severe occupational impairment to the veteran and has been exacerbated
          by many years of continuous wear of duty gear related to his profession." 
      On
          today's C&P examination, 11/21/17, Veteran is a credible historian and
          reports several incidents in 1992-1995 of blunt trauma, involving ground
          defensive tactic also known as "Bull in the Ring" in which the marine is in
          full gear and is potentially tackled by several marines.  Following this ,

          Veteran incurred concussion-1992 or 1993).  Veteran also reported chronic
          neck pain during service was due to carrying 50 caliber machine gun barrels
          and ammunition.  He also went to Bethesda for back school(approx. week). 
          In summary, the Veteran has been under chronic medical care for neck pain
          first reported during service(6/25/96) and the condition has progressed from
          cervical muscle spasm to mechanical cervical pain syndrome and
      radiculopathy,
          cervical herniated and bulging disc with muscle spasm, cord
          contusion/compression myelomalacia, cervical spondylosis and degenerative
          disc disease, cervico-occipital neuralgia, and cervical radiculopathy with
          bulging disc. A nexus has been established.  Therefore, it is at least as
          likely as not that the claimed condition has direct service connection. 
    • By gab2112
      An advice anyone can give would be appreciated. I go in for my first C&P exam for my knee issues. I submitted a FDC with my military medical records showing foot issues, shin splints, and issues with bunions. They wanted to operate on the one bunion but I would have had to reenlist. I also submitted my personal medical records that include  my recent MRI reports that show various knee issues. (arthritis, patellar maltracking, meniscus tears...) I received a call to set up my C&P exam about a week after submitted my FDC online. 
      I have been looking online, and found out that if I submit any new paperwork my claim will no longer be a FDC. I wanted to submit the medical report they do when you first enlist that shows everything they document you have wrong with you, and on you. (tattoos, scars, appearance). On this form it shows that I didn't have any bunions when I went in. Then while I was in they got bad enough to see the podiatrist while I was in. I am afraid that connection with my knees will not be there, and cause a denial. 
      Do I bring this medical record with me to the C&P exam in case the doctor ask anything, or even bother  showing  it to him?  Do I wait for the possible denial, and then submit this when I appeal? Should I go ahead and submit this form online, and risk my claim to no longer be a FDC?  After submitting my claim, and doing more research online I learned that I shouldn't assume that the reviewers will be able to recognize any secondary conditions. Thanks in advance for any help or advice. 
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    • I already get compensation for bladder cancer for Camp Lejeune Water issue, now that it is added to Agent Orange does it mean that the VA should pay me the difference between Camp Lejeune and 1992 when I retired from the Marine Corps or do I have to re-apply for it for Agent Orange, or will the VA look at at current cases already receiving bladder cancer compensation. I’m considered 100% Disabled Permanently 
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    • 5,10, 20 Rule
      The 5, 10, 20 year rules...



      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.



      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.



      Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.



      If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"



      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.



      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.



      ------



      Example for 2020 using the same disability rating



      1998 - Initially Service Connected @ 10%



      RESULT: Service Connection Protected in 2008



      RESULT: 10% Protected from reduction in 2018 (20 years)



      2020 - Service Connection Increased @ 30%



      RESULT: 30% is Protected from reduction in 2040 (20 years)
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    • Post in New BVA Grants
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      I hate that its that way.  The board should "render a decision", to include service connection, disability percentage AND effective date, so we dont have to appeal "each" of those issues over then next 15 years on a hamster wheel.  
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    • Finally heard back that I received my 100% Overall rating and a 100% PTSD rating Following my long appeal process!

      My question is this, given the fact that my appeal was on the advanced docket and is an “Expedited” appeal, what happens now and how long(ish) is the process from here on out with retro and so forth? I’ve read a million things but nothing with an expedited appeal status.

      Anyone deal with this situation before? My jump is from 50 to 100 over the course of 2 years if that helps some. I only am asking because as happy as I am, I would be much happier to pay some of these bills off!
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    • I told reviewer that I had a bad C&P, and that all I wanted was a fair shake, and she even said, that was what she was all ready viewed for herself. The first C&P don't even  reflect my Treatment in the VA PTSD clinic. In my new C&P I was only asked about symptoms, seeing shit, rituals, nightmares, paying bills and about childhood, but didn't ask about details of it. Just about twenty question, and  nothing about stressor,
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