Filed an Increase for my shoulder

[jfrei]

Its been rated for 20% since 2010, no retro will be gained with the increase anyways? so figured just to file for an increase to keep my disability levels accurate. My question is my claim was closed and it maintained the same rating which is better then reduction or severance but they said the doctor wrote pain flareups is why it was Maintained 20% and not increased to 30%. Flare ups to me doesn’t mean what I told her and stated I wake up in pain until I us the cream and take the drugs the VA gives me and then I do the dose 2 to 3 times a day to keep using my left arm….. Am I wrong to say that constantly in pain isn't a flare up I had an Xray last week and an MRI today for my shoulder finally after waiting 6 months for them to fix the docs mistake asking for the right shoulder and not the left? Also want to note the fact you can finally download decision letters way better then Waiting on snail mail

Edited August 9, 2023 by jfrei

[broncovet]

What were the reasons and bases for decision (denial)?  Its always best to start there, rather than speculate on what we think their reasons were.  

If you are in "constant pain", then it may be possible to get rated for that, too, unless "constant pain" has already been compensated with another disability.  That is, you cant get paid for the same symptoms, twice.  Only ONE "constant pain".  

All this said, I have no desire to fight with the VA "for practice or fun".  This means I dont apply for anything UNLESS it has a reasonable chance of either:

1.  A benefit to my family.  Example:  You have PTSD at 100 percent, but also have heart problems, for which you are not sc for them.  This would likely warrant applying for heart trouble, because, heart trouble can cause your death, and, your spouse could get DIC when your death is due to a service connected cause.  In this example, once rated 100 percent P and T, for 10 years, your spouse should get DIC anyway, because the rule is either "due to sc causes" or, any cause after 10 years.  

2.  Additional compensation.

3.  Additional retro.  

     If it wont help any of these, then I DONT APPLY for the fun of fighting VA tooth and nail.  If I want to see a fight, I can always go to a hockey game.  

[jfrei]

3 more years of until that mark for DIC if divorced will my kids get that money they will both be under 18 and their DEA if they go to college?

Edited August 10, 2023 by jfrei

[broncovet]

It appears like your kids can get DEA OR DIC but not both at least not at the same time.  Read more here:

https://www.va.gov/education/survivor-dependent-benefits/dependents-education-assistance/#:~:text=You can get benefits if,Compensation (DIC) from us.&text=If you join the military,benefit while on active duty.

[jfrei]

Well they are 6 and 8 DEA is a ways a away

[Vync]

@jfrei I think you should look at 38 CFR 4.40 and 4.45, plus this link to M21-1: https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014407/M21-1-Part-V-Subpart-iii-Chapter-1-Section-A-Painful-Motion-and-Functional-Loss

In the M21-1 article, the word "flare" shows up 16 times. What you described seemed a bit sketchy.

Get a copy of the C&P exam to see what was noted.  It sounds like they might have been rating you based on what they could confirm at the time of the exam, but since they could not assess you in the middle of a flare up, unless they had medical records proving it the examiner likely disregarded what you told them. I have had shoulder surgery which left me with frozen shoulder and ROM less than 5% on each axis. It was not fun, so I can definitely sympathize with you.

Of note is this, but several other decisions have modified this further so don't forget to read the whole article

Quote

 

In DeLuca v. Brown, 8 Vet.App. 202 (1995), CAVC held that in examinations of musculoskeletal disabilities, the examiner must be asked to give an opinion on whether pain could significantly limit functional ability during flare-ups or with repeated use over a period of time.

 

This information must be portrayed in terms of the degree of additional ROM lost due to pain on use or during flare-ups.  

 

Aside from that, when filing for an increase they can factor in medical evidence from the preceding 12 months to grant an earlier effective date.

 

 

[jfrei]

Ok finally after years of pain Im finally got an MRI and have a tear posterior labral my VA doc says Im a good candidate for treatment at a real hospital like the Rothman institute because they are no good at the VA in wilmington…. Least he’s honest 

For now Im just using KT tape just to be able to keep using my left arm