Questionable Diagnosis

[burkhm]

Team,

Since I filed my claim in 2002, I have been bewildered by the decisions of the VA concerning my case. BRIEF HISTORY: During my 26 years on active duty, I was periodically seen for various joint conditions and pain. All of the conditions can be contributed to years of physical abuse of the body, parachuting, rucksacking, etc. It all started with my left foot being injured after a parachute jump. Initially diagnosed as a sprain, several years later and numerous tests, it was determined that I had an auto-immune disease going on and the foot was fusing on its own. Eventually after waiting for a couple of years for the foot to fully fuse, a decision was made to attempt to speed up the fusion process surgically. Over a ten year period, I had three surgeries on the left foot and during the last surgery, a nerve was clipped and I lost feeling on the left side of the foot. Additionally, the middle toe was operated on to remove bone growth and also fuses the toe. As you know, problems with the feet contribute to other joint problems. I eventually had to have two surgeries on my cervical spine to fuse C4-C5 which left me with extreme limited range of motion in my neck. I’m also experiencing tingling and numbness in arms and occasionally in legs. A compression fracture was also diagnosed at T-12, although I refused any surgerical treatment for this. All my other major joints, shoulders, hips, and knees were diagnosed as degenerative joint disease and the rheumatologist provided numerous anti-inflammatory medications for the pain and swelling. My initial claim identified all of these joints as there was plenty of evidence, both medical records active duty and post active duty and also diagnostic tests to support. I also filed for scars from surgery, GERD, anal fissure and conjunctivitis of the eyes. VA DECISIONS: Originally in 2002, I was rated at 50%, given 40% for Rheumatoid Arthritis and 10% for the compression fracture of the spine. I non-concurred with this decision and in 2004 was given an additional 20% for neck condition, now total disability is up to 60%. I appealed this decision in September 2004 by submitting a VA Form 9 and continue today awaiting a decision. So as I understand it, all my original issues are under appeal. I believe the evidence I presented supports my claim for approving a disability for all of the affected joints. Bone scans and X-Rays don't lie. I continue to be seen by Rheumatology and Orthopedics for these conditions. ADVISE: What do you think? I believe the VA didn’t want to rate me for all the affect joints and assigned me a 40% rating for Rheumatoid Arthritis. I believe they’re attempting to rate the nerve damage as part of Rheumatoid Arthritis. Thanks!!!!!

[burkhm]

Pete,

Concur with your comments concerning Berta. I need to be proactive in the next few weeks/months and ensure all my i's are dotted and t's are crossed. I'm not familiar with a Writ of Mandamus, would definitely consider it if it would assist my case. Really not into upsetting anyone but as you mentioned, 30 months and counting is quite a wait and I have no idea how much longer I'll be waiting. If only I'd known Berta prior to my initial submission, maybe everything would be settled by now. Thanks for your advise.

[Alex]

The time it takes for DRO hearings vary from office to office, depending of number of DRO's, caseload, etc. Count on a year to 18 months as a minimum.

I have mixed feelings about the DRO process: they take up a lot of time and just tend to follow the rating decision. But is it another venue for making you pitch, especially if you have a bad C&P exam that the BVA will take its time before remanding it. And, as a veteran's advocate, I never pass up a chance to press my arguments before a new audience.

Alex

[john999]

Alex

When we are allowed to have lawyers for initial claims a lot of things will change. I would imagine that claims may be granted during the rating process because all the I's and T's will be crossed because we will have experts doing our claims, and not sloppy VSO's.

[Vike17]

burkhm,

If you could give us an actual break down of all your rated disabilities and thier percenatges, it would help quite a bit in sorting all of this out.

From the looks of things, it sounds like the appeal in 2004 was your second NOD, as you said;

"Originally in 2002, I was rated at 50%, given 40% for Rheumatoid Arthritis and 10% for the compression fracture of the spine. I non-concurred with this decision and in 2004 was given an additional 20% for neck condition, now total disability is up to 60%. I appealed this decision in September 2004 by submitting a VA Form 9 and continue today awaiting a decision"

When you 'appealed' the original evaluation of 10% for the compression fracture (T-12) and was subsequently awarded "an additional" 20% rating, was this through a "reconsideration" by the rating activity or a DRO review? Were you actually assigned a overall 20% evalation for the cervical spine, or were you given a 30% rating. I'm a bit confused because there is a difference in the rating criteria between the two percentages because there isn't a 30% rating for the thoraciclumbar spine. The next evaluation would be a 40% evaluation.

The reason why they sent you a letter asking what route you wanted your appeal handled was because you appealed an actual rating decision, even though it was a second rating on that one issue. Any time the VA sneds you a rating decision, the first step in appealing that decision is to File a NOD. You should only file the VA Form 9 if you receive a Statement of the Case (SOC) and want your claim to then go to the BVA. Having said that, alomost 2 1/2 years for a an NOD to be addressed is rather unusual, unless your regional office's Appeals Team is so backlogged.

Technically, the T-12 segement is a part of the thoracolumbar spine and the compression fracture of it would be rated on range of motion (Foreward flexion) because it affects the L/1 - T/12 disc. For a 20% rating you would have had a forward flexion of between 30 dgrees and 60 degrees, and a 40% rating would have entail a forward bending of 30 degrees or less. Since you had the C/4-C/5 fused, which would also be rated on limited range of motion, you should have received two evaluations of the spine; one for the thoraclumbar spine and one for the cervical spine.

In regrads to your rheumatoid arthritis as an active process, a 40% evaluation encompasses;

"Symptoms combinations productive of definate impairment of health objectively supported by examination findings or incapacitating exacerbations occuring 3 or more times a year."

It also states;

"For Chronic residuals: For residuals such as limitation of motion or ankylosis, favorable or unfavorable, rate under the appropriate DC's for the specific joint involved. here, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes a rating of 10% is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Note: the ratings for the active process will not be combined with residual ratings for limitation of motion or ankylosis. Assign the higher evaluation"

I hope this helps!

Vike 17

[burkhm]

Vike,

I sincerely appreciate your comments and suggestions. In an attempt to streamline my history, I obviously didn’t include all details as I didn’t want to post an excessive letter. However, details are important and I will provide some additional details while also trying to summarize. Appreciate your indulgence as I consider this somewhat lengthy. When I filed my initial claim in 2002, I did not use the agencies and groups available to assist me in filing my claim. I basically filed myself, reviewing my medical records and annotating a claim for those that I still had issues with upon departure from the service. I initially claimed the following in May 2002 and received the ratings in Oct 2002.

- Reiters Syndrome (Granted as Rheumatoid Arthritis, 40%)

- Arthritis and Degenerative Joint Disease for the following:

Left Foot, Right Foot, Bilateral Knees, Cervical Spine, Right & Left Shoulder (Included in Rheumatoid Arthritis rating, indicating if rated separately, the majority would be noncompensable and yield a lower evaluation).

- GERD (0 %)

- T-12 Compression fracture (Granted 10%)

- Scars, neck (0 %)

- Scars, left foot (0 %)

- Anal Fistula (0 %)

- Tinea Cruris (Denied)

- Bilateral Pes Planus (10%)

- Post Septoplasty and Reduction Turbinate (0%)

TOTAL GRANTED 50%

I sought assistance from DAV, giving them a Power of Attorney and filed a NOD in November 2002 requesting reconsideration for everything listed above with the exception of the 40% rating for Rheumatoid Arthritis and also requested two additional issues be considered which were not in original claim, limited range of motion in cervical spine due to fusion of C4/C5 and right knee cyst with chondromalasia with small tear of posterior horn.

In August 2004, I was notified by the VA that they had granted me 20 % for DDD of cervical spine, right knee condition denied because condition was not related to military service. TOTAL GRANTED INCREASED TO 60%.

Also in August 2004 in separate correspondence, I received a Statement of Case from the VA which denied increases for any of the disabilities filed in 2002.

I submitted a VA Form 9 in September 2004 appealing each of the decisions, providing a brief statement why I disagree and indicting I would be seeing my personal physician and provide them additional information supporting my claim.

In December 2006, I was notified by the VA they had received my written disagreement and requested if I wanted a DRO officer assigned to my case or follow the traditional appeal process. I selected the DRO officer and that’s where I am at to date.

ADDITIONAL INFORMATION: Since September 2004, I have continuously sent in medical documentation which I believe will enhance my case. For what its worth, I have also ask co-workers to provide statements in support of claim annotating their thoughts as they viewed my medical conditions and limitations on a daily basis. I generally send these documents to both the DAV and the VA as I want to ensure they are received. DAV normally sends me notice that indicates they are acting on my behalf and submitting the attached materials in support of pending appeal, although it’s not specific as to what documents were submitted. On occasion, I have also submitted a statement in support of claim, keeping the VA abreast of current conditions, recent medical appointments and findings, and also future appointments.

I believe that the information you provided “Note: the ratings for the active process will not be combined with residual ratings for limitation of motion or ankylosis. Assign the higher evaluation" indicates that I cannot be rated for Rheumatoid Arthritis while also claiming DDD with affected major joints. So I believe the decision is, does evaluating each of my joints rate higher than the RA diagnosis. If this is the case, I say yes. My left foot alone had three major surgeries on it, and is basically fused (I call it a club). I have lost feeling on the left side and no movement in three toes as nerve was clipped in last surgery. Also have three nasty disfiguring scars. I believe the foot alone should be rated at 30%. Generally what I saying is my whole body is racked with DJJ and have the medical documentation with x-rays and bone scans to support it.

Once again, sorry this is long, appreciate your interest and look forward to your advice. By the way, I requested copies of my C&P examination yesterday and will use this to get my personal physician to write IMO substantiating my claims reference my conditions.

[Vike17]

burkhm,

Now things are a bit clearer. The only way VA will be able to assign a rating for degenerative arthritis aside from the active rheumatiod arthritis is if there is clear objective evidence of the etiology, and then they would only rate the higher of the two evaluation as stated in the rating schedule. Your case is very similar to a claim I did last year. This was a 20 year retiree that was diagnosed with Reiters syndrome whle still on active duty. He also had trauma injuries to both knees, ankles, and left shoulder. He was also seen numerous times for lower back pain prior to his Reiters Syndrome. However, During the C&P exam there wasn't any clear seperation between degenerative arthritis and rheumatiod arthritis shown on any x-rays ect... and the rating decision stated "You did suffer injuries to various joints during service with manifestation of symptoms to include edema and pain. At this time, however, it would be difficult to differentiate between the symptoms of the prior injuries and the current manifestations." In the end this veteran received a 60% rating for his Reiters Syndrome and was awarded IU.

If you have objective evidence in the way of x-rays that clearly show degenerative arthritis to a particular joint and it warranted a higher rating either based on those radiological images or on range of motion, then VA will assign a seperate rating for that joint in question. Otherwise, the VA must compensate it under the rheumatiod arthritis because of the Reiters Syndrome. One thingto keep in mind through all of this is that VA can only compensate a bodily etiology once regardless of how many injuries or diseases happened to that body system.

One thing that does strike me about your appeal is, as I stated before, it has taken your regional office a rather long time to process your NOD/Form 9 (alomost 2 1/2 years). This ceratainly isn't normal regardless of how backlogged your regional office is. At any rate, you should also receive a letter from the DRO acknowledging the actual issues on appeal.

I hope this helps!

Vike 17