BVA Allowed VARO to combine 2 Separate Conditions

[USNDW]

So, haven't been here for awhile, tried to stay offline.

Filed a claim for Seronegative RA in Sep 2009, went through the entire process to the BVA, got an examiner who agreed with the SNRA diagnosis. VARO actually rated 12 joints for residuals. I also had a pending request for increase for the left knee following meniscus removal from October 2010. Separate from the SNRA.

I got a letter from the BVA that stated my SNRA for the left knee was granted?

Never got a SOC for the SNRA, but the BVA decision stated I was sent one 7/2021.

I immediately filed  NOD to the VARO with an error because they combined 2 separate claims. I had claimed SNRA as a chronic presumptive disease, not associated with any joint, and asked for a 100% rating in 2009.

I also filed a Request for review from the BVA and sent back the original claim for SNRA as a disease, not a residual

I called the Senators office and they only sent a general request. Not specific for the error.

Anything else I should do???

Still have a pending Specially Afapted Housing open at the BVA, amd increase for the left knee, so it is still there and I need to get them to correct their error. I have sent evidence and statements to support that claim for error

[USNDW]

Richard, I get that

But the VA cannot combine 2 completely separate conditions.

Inflammatory arthritis is an immune disorder.

Left knee condition can be from arthritis, meniscus repair, removal, instability and residual.

A claim for Seronegative Rheumatoid Arthritis as a chronic disease under 5002 cannot be combined with a request for a completely separate claim.

If you had a diabetes chronic disease claim, and then a claim for atrophy of a limb from not using it, it would literally be like them giving you a 10% atrophy for diabetes of your limb and telling you "granted"

I never asked for rheumatoid arthritis of the left knee. I claimed it under 5002 which is not a joint rating, it is an inflammatory arthritic disease. An immune disorder, like Siliac disease, IBS, and other chronic diseases.

That had nothing to do with the left knee. Nothing.

It is a clear and Unmistakable Error to combine a claim for a chronic disease with a joint rating.

Then Seronegative Rheumatoid Arthritis could be rated at 100% which is what I asked for because it has never been in remission with daily flares.

As I said earlier in this topic, the VARO added about 10 residual ratings to various joints, shoulders, hips, fingers, and so on, so they did recognize the inflammatory condition and that I have massive joint damage residuals from RA but failed to rate the actual disease under diagnostic code 5002 or deny the condition. SERONEGATIVE RHEUMATOID ARTHRITIS is not a condition that can be combined with an individual joint, it is systemic disease.

If you review 5002 you will see the separate ratings for the disease.

So, back to my original question,  if the BVA allowed the VARO under a remand to combine 2 separate conditions (not placing them under the same appeal) is there any other action to take other than filing a CUE NOD with the VARO within 1 year, and filing a request for review of the decision based on an error. As you stated, they can do whatever they want, but we have recourse and I am trying to find out if there are any avenues I am missing

[USNDW]

Richard, I just don't think you get it.

I am not talking about 2 ratings for 1 joint.

A rating for Seronegative Rheumatoid Arthritis as a chronic disease cannot be combined with a specific joint. Chronic diseases are rated separately, cannot be combined or stacked with other claims.

A residual of a chronic disease can be added, but not combined.

5002 cannot be combined with 5257, it just does not work that way. I never asked for SNRA for the left knee. If the VARO wants to add a residual rating for a disease, they can do so, but they have to decide on the chronic disease, approve 5002 with a rating if 0% to 100% or deny it.

Again,,, this would be like the VARO combining a claim for diabetes and left leg atrophy as 10% without considering the actual diabetes claim.

Really, this is not that complicated. A claim for a chronic disease has to be processed as such. 

Good news is I filed the request for review of the BVA grant and they have accepted it and are scheduling a new hearing so I can speak with the new ALJ. 

I get your point about combining ratings for a single joint or single limb, that makes sense, but no way legally can the VA combine a chronic disease with a single joint. They can assign a residual rate, but still have to decide on that chronic disease

 

 

 

 

 

Richard, I get that

But the VA cannot combine 2 completely separate conditions.

Inflammatory arthritis is an immune disorder.

Left knee condition can be from arthritis, meniscus repair, removal, instability and residual.

A claim for Seronegative Rheumatoid Arthritis as a chronic disease under 5002 cannot be combined with a request for a completely separate claim.

If you had a diabetes chronic disease claim, and then a claim for atrophy of a limb from not using it, it would literally be like them giving you a 10% atrophy for diabetes of your limb and telling you "granted"

I never asked for rheumatoid arthritis of the left knee. I claimed it under 5002 which is not a joint rating, it is an inflammatory arthritic disease. An immune disorder, like Siliac disease, IBS, and other chronic diseases.

That had nothing to do with the left knee. Nothing.

It is a clear and Unmistakable Error to combine a claim for a chronic disease with a joint rating.

Then Seronegative Rheumatoid Arthritis could be rated at 100% which is what I asked for because it has never been in remission with daily flares.

As I said earlier in this topic, the VARO added about 10 residual ratings to various joints, shoulders, hips, fingers, and so on, so they did recognize the inflammatory condition and that I have massive joint damage residuals from RA but failed to rate the actual disease under diagnostic code 5002 or deny the condition. SERONEGATIVE RHEUMATOID ARTHRITIS is not a condition that can be combined with an individual joint, it is systemic disease.

If you review 5002 you will see the separate ratings for the disease.

So, back to my original question,  if the BVA allowed the VARO under a remand to combine 2 separate conditions (not placing them under the same appeal) is there any other action to take other than filing a CUE NOD with the VARO within 1 year, and filing a request for review of the decision based on an error. As you stated, they can do whatever they want, but we have recourse and I am trying to find out if there are any avenues I am missing

[Phury & Rhage]

On 6/26/2022 at 6:06 PM, Richard1954 said:

 

So again, my point is The va combines medical conditions together all the time and give one rating.

Another example, I was rated for Diabetes II  6 Nov 2020 at 20%, on 22 Apr 2022 , I claimed ED secondary to Diabetes II. They combined the ED with the Diabetes and left the rating at 20% ( Now ED is always rated at 0% and a K award is given) in  my case I was not awarded  a k award. I filed a supplementaly claim calling CUE ( clear and unmistakable error)  for not being awarded a k award, and at the same time requested the Diabetes II and ED be separate ratings.  They awarded the K award, but kept ED &  Diabetes II rating as one rating.

 

 

Hi Richard,

I'm doing my responses in little chunks to keep them shorter, but this issue is straightforward even if nobody likes the answer:

Noncompensable complications of diabetes have to be combined into 1 rated issue.

M21-1 V.iii.11.2.b. Evaluating Complications of Diabetes Mellitus

"Noncompensable complications are considered part of the diabetic process under 38 CFR 4.119, DC 7913."

 

Currently, ED can only receive a 0% (noncompensable) evaluation under the VASRD as you no doubt are aware.  Yes, you were entitled to SMC K for loss of use of a creative organ...and they messed that up.  I'm glad they fixed it!

 

In practical terms, the issue gets edited in the system to say, service connection for Diabetes II with erectile dysfunction is granted...yada yada.  If the evaluation criteria undergoes a positive change, you can always ask them to update your rating - make sure you do that within a year of the law change though (to get the earliest effective date).

 

Phury

  

[Phury & Rhage]

On 6/29/2022 at 11:12 AM, USNDW said:

But the VA cannot combine 2 completely separate conditions.

It is a clear and Unmistakable Error to combine a claim for a chronic disease with a joint rating.

Then Seronegative Rheumatoid Arthritis could be rated at 100% which is what I asked for because it has never been in remission with daily flares.

 

Hi USNDW,

Frustratingly, this is not always true.  Although, SNRA can be rated at 100%, the criteria for that evaluation is pretty steep, "With constitutional manifestations associated with active joint involvement, totally incapacitating."  Totally incapacitating is a really high standard.  If you look down at the notes for DC 5002, there are a couple that might pertain to rating your claim:  https://www.ecfr.gov/current/title-38/chapter-I/part-4#4.71a

I can't show you a picture of it, but the DBQ for that condition has a specific question that says, "Is the Veteran's arthritis manifested by constitutional manifestations associated with active joint involvement which are totally incapacitating?"  If the examiner doesn't check that box, you can't be rated at 100%.  There are specific questions (1 each) for every one of the evaluations above.  Whichever one the examiner checks is the one that will determine your rating...

There are other concepts in play in a rating like this.  Decisionmakers are required to "maximize" the Veteran's benefit.  For instance, if the examiner checked the box for the 20% or 40% criteria statements (examiners don't know the actual evaluations associated with those statements unless they look in the CFR and why would they do that), the decisionmaker could (using note 2) rate each of the affected joints individually, if doing so would give the Veteran a higher total evaluation than doing it using the 20% or 40%.  The rating narrative SHOULD contain an explanation for how they arrived at the numbers they used, but they may have left it out or it may not be written well enough that a Veteran can understand it.  And the thing is, if you didn't know which box the examiner checked, you might be tempted to think the rater/decisionmaker low-balled you.  Not every evaluation is clearly based on a list of statements/descriptions and the examiner picks one, which determines the actual evaluation number.  There is often room for judgement, but there is regularly objective criteria that determines which evaluation you are assigned.

IMO, a big part of the problem is that Vets can't see behind the curtain - no idea how to address that.  Another big part of the problem is that the canned language associated with a rating isn't necessarily describing the decision well and if the decisionmaker doesn't add to it with (well written, easy-to-understand) free text, the Veteran has no idea/the wrong idea about how the rating was determined.  I also am not sure how to "fix" that.  Decisionmakers are trained to add verbiage, but there isn't standard verbiage that applies in every situation.  Every claim is very individual, so it makes sense not to only rely on canned explanations.  But that leaves a lot of room for POOR explanations...

Another issue that isn't well explained is that the underlying condition (SNRA) is service connected in the grant but you don't necessarily see the evidence (proof) of it in the same way claims processors do.  That's confusing, so let me explain.  Every rating decision has 2 main components - the narrative and the codesheet.  Vets only get sent the narrative and it's the document attached to the decision notification letter you receive.  The codesheet has all of the diagnostic codes and other information that succinctly represents the claim.  It doesn't have all the language/explanations that the narrative does.  The Manual does talk specifically about the codesheet requirements, but unless you (the Vet) saw it, that Manual section might not make a lot of sense.  I'm putting in a link to the section that talks about combining diagnostic codes to evaluate the residuals of a disease:  https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000180525/M21-1-Part-V-Subpart-iv-Chapter-1-Section-C-Coded-Conclusion#2  

Here is a screenshot:

Notice the example.  That almost exactly follows what happened in your claim (the way you described it).  Obviously, rheumatoid arthritis is a chronic disease and our coding in the system reflects that it is the primary diagnostic code, and the actual diagnostic code that was rated (ankylosis of the wrist in this example) comes 2nd. 

A couple useful things to know:  the diagnostic codes are forever linked in your rating.  So if your condition degrades and you meet a higher criteria in an increase claim, your diagnostic code and rating criteria would still use the criteria under DC 5002 if you ended up meeting that impairment criteria.  The codes are linked together, but you aren't locked in to separate evaluations on each joint.  Which codes and criteria used are going to depend on what the examiner checks off on the DBQ in exams on future claims.

  

Not sure if this helps,

Phury

Edited July 3, 2022 by Phury & Rhage
grammar and content

[Richard1954]

33 minutes ago, Phury & Rhage said:

Hi Richard,

I'm doing my responses in little chunks to keep them shorter, but this issue is straightforward even if nobody likes the answer:

Noncompensable complications of diabetes have to be combined into 1 rated issue.

 

  

In reality it doesn't matter. I have never seen them add something to an already granted disability which is what they did.  They did the same thing with my arthritis of the left knee . The knee was rated 4 years ago, and now they added the arthritis to the original rating with no increase in rating.  However in the case of arthritis of the knee when there is xray evidence they must rated it 10%. I have it on appeal right now but the VA has become so adversarial that I expect it to go to the BVA  or even the court.

Edited July 3, 2022 by Richard1954

[USNDW]

Hey phury, thanks

I guess the question is hiw do I see if the examiner checked those boxes?

Cant get a copy of the exam until the case is resolved, which does not help me, but I have read Walker v Shinseki where they state the VARO must consider lay evidence for rating. Not once since I filed in 2009 have they even commented on lay evidence from me or my wife.

Thank Goodness they accepted my request for review but I think it is pretty shady for the attorneys at the BVA to not have reviewed the 6 different SOC the three remands and the evidence over 13 years before accepting that decision.

Causes a lot of extra work for me. And yeah, I know the bar is high but my SNRA has never been in remission. I dont have flares, I have daily widespread pain and fatigue that is disabling. I am rated housebound because of residuals and joint damage, so we will see