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@  chuck57thSig : (30 October 2014 - 05:51 PM) Sarti07, It's Under (Va Claims And Research) Http://www.hadit.com/forums/topic/59064-Prep-For-Decision-Phaseprovisional-Rating/
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Back And Spine Ratings


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#1 masonmanwalking357

 
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Posted 21 July 2009 - 11:39 AM

Does anyone out there have any experiences with having a incorrect VA rating? I currently receive 20% percent VA disability rating and the VA has it classified as "BACK STRAIN" and "ARTHRITIS". It is well documented in my medical records that my back injury occured while on active duty back in 1998. Degenerative Disk Disease (DDD) does not sound like a "Back Strain" and "Arthritis".

Back in March, I submitted a VA Form 21-4138 (Statement in Support Of Claim) to get my VA rating increased from 20% percent. On May 9th the VA Regional Office (Wichita, KS) set me up for a C&P (Comp and Pension) exam. The examiner was not a doctor or specialist to no surprise at all, and tried to rush the examination. I have requested a copy of that examination, but the regional office claims that they can't find it !!! (go figure)

To sum this up, On May 19th I had surgery on my lower back and spine by a civilian surgeon who first operated on me after I got out of the service. The VA doctors told me that I didn't need a dual-spinal fusion and that a microdisksectomy would cure my back and leg pain. With "Two Dead" disk in my lower back that have been there for years, we all know why the VA was against doing the right thing ($$$$$) Lets continue to medicate you and that should help you along...

I went against what the VA doctors said and went ahead and had my L-4 / L-5 and L-5 / S-1 fused. I went ahead and submitted another 21-4138 the morning they wheeled me in for surgery, requesting a temporary VA rating of 100% percent due to surgery on my back and spine, which is my service-connected disability. I understand that both the March and May claims will be combined.

(1) My main question would be: How can I go about getting my rating diagnosis changed from "STRAINED BACK" and "ARTHRITIS" to the correct diagnosis? Maybe even IDS (Intervertebral Disk Syndrome)

#2 12R3G

 
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Posted 22 July 2009 - 02:31 PM

First thing is--what diagnotics codes are you rated under for back strain and arthritis?

Degenerative arthritis is under DC 5003 and rates either 10 or 20% based on X-Ray findings, but can be rated on range of motion. Lumbar strain is DC 5237, and is rated under the General Rating Formula for Diseases and Injuries of the Spine. IDS is DC 5243 and rates under either the general formula or the IDS formula with incapcitating episodes. DC 5241 is spinal fusion.

Second thing--ask the doctor who did the surgery. I think what you want to claim is 5241 spinal fusion and/or IDS 5243, either will be rated primarily on range of motion (general formula).

Will the surgeon write a letter explaining what he did and why it was necessary? That, plus your treatment records and MRI results (both the pictures and the radiologist's report) should be added to your claim--this is where you can ask to change your lumbar (back) strain to spinal fusion and/or IDS based on your diagnosis from your surgeon.

with your treatment records, MRI and (hopefully) IME from surgeon, you may not need a C&P--however, since you've had surgery I wouldn't let them rate you based on the pre-surgery C&P.

I said MRI, assuming you have them pre-op, but if you have anything post-op (MRI, x-rays) I'd add them as well.

Anyway, that's what I'd do.



#3 LarryJ

 
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Posted 22 July 2009 - 02:38 PM

Welcome to the hadit place.

Which direction are you walking?
East, perhaps?

#4 rentalguy1

 
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Posted 22 July 2009 - 06:01 PM

You have to ask them in writing to change the dx code, and then you have to prove to them why they need to change it. I was in the same exact boat as you. For over a decade I was classified as a "lumbar strain." I am now rated as IVDS, because I was able to show them, with their own written material and regulations, why they needed to change it. I would not even mention the spinal fusion dx code to them. You want them to rate you under dx code 5243, IVDS. I say this because there are two different ways to be rated under this criteria. One is under the general formula (range of motion) and the other is based upon incapacitating episodes (doctor prescribed bed rest). Below is a copy of the letter I sent to ask them to change my dx code to 5243. Use it as you need to fit your own claim. You should also become well versed in all of their regulations (38 CFR 3 and 4). Read up on the Spine Claim Repository as well. Good luck.

RE: Addendum to Statement in Support of Claim (VA Form 21-4138)

To whom it may concern,

My name is XXXX Shane XXXX, and I had a period of active service in the United States Army from 31 October 1990 through 27 April 1994. My Military Occupational Specialty Code (MOS) was 67V10; Observation/Scout Helicopter Repairer, more commonly known as a helicopter crewchief. Additionally, in an attempt to do my part in the Global War on Terror, I attempted enlistment in the Tennessee Army National Guard (NG) in 2004, but was discharged after three months and 11 days for a "Defective Enlistment Agreement." I joined under the officer candidate school option in order to secure an administrative job, where I felt I might be of some use to the government, but you cannot receive a commission in the NG if you had a previous general, under honorable conditions discharge. There was no active federal service during this period.

In this addendum, I seek to cover my current claims of increased service connected compensation, claims of service-connected compensation of new disabilities and requests to reopen claims for service connected compensation on disabilities. I will be as brief as possible, but there are several items to discuss. I have also included all pertinent documentation on all of these disabilities that are currently in my possession. The only additional records that may be found would be located at the James H. Quillen, Mountain Home Veterans Administration Medical Center (VAMC).

Issue 1. Entitlement to increased service connected compensation for Mechanical Low Back Pain (now also claimed as intervertebral disc syndrome (IVDS) (bulging discs), degenerative arthritis of the spine, spinal stenosis, and sciatica), which is currently rated at 0% disabling.

I feel it necessary, before describing the events that have transpired, to give the rater(s) insight on the topic of the degenerative nature of IVDS. In VA Training Letter 02-04 (training letter), the director of the compensation and pension service put forth information to train employees on intervertebral disc syndrome (IVDS). In the training letter, it defines IVDS as “a group of signs and symptoms resulting from displacement of an intervertebral disc or disc fragments at any level of the spine. There are usually pain and other signs and symptoms at or near the site of the disc, and there may be pain referred to more remote areas, plus neurological abnormalities due to irritation or pressure on adjacent nerves or nerve roots.” The letter also lists several other names for the disease, including degenerative disc disease (DDD) and bulging, or herniated discs. These two terms are of particular importance, because I have been diagnosed with both.

The training letter goes on to state that the onset of symptoms varies, but commonly begins either as gradual, progressive back pain; sudden back pain after significant trauma; or back pain after minor trauma. This again, is of importance to my claim, because VA has continuously termed my condition as mechanical low back pain. Mechanical low back pain, by medical definition, is back pain that resulted from a traumatic event. As you will read later, my back condition did, in fact, result from trauma. It is medically known that trauma to a spinal joint sets the degeneration disease in motion.

In a peer review paper by Dr. Stephen Kishner, he speaks of the cascade of degenerative changes involved in DDD. He wrote, “This cascade of degenerative changes can be subdivided into 3 stages: dysfunction, instability, and restabilization. The duration of the stages varies greatly, and distinguishing the signs and symptoms from one stage to the next is difficult.

Dysfunction involves outer annular tears and separation of the endplate, cartilage destruction, and facet synovial reaction. The symptoms of dysfunction are low back pain or neck pain, often localized but sometimes referred, and painful movement. The signs are local tenderness, contracted muscles, hypomobility, and painful extension of the back, neck, or both. Results of a neurological examination are usually normal.

The dysfunction stage is followed by the instability stage, in which disk resorption and loss of disk space height occur. Facet capsular laxity may develop, leading to subluxation. The symptoms are those of dysfunction (i.e., “giving way” of the back, a "catch" in the back with movement, and pain with standing after flexion). The signs are abnormal movement (i.e., during inspection or palpation), including observation of a catch, sway, or shift when standing erect after flexion.

In the stage of restabilization, the progressive degenerative changes lead to osteophyte formation and stenosis. The symptoms are low back pain of decreasing severity. The signs are muscle tenderness, stiffness, reduced movement, and scoliosis.” As you will read, I have progressed through all three phases of this cascade. Furthermore, VA has had the evidence of this cascade in its possession, as it occurred.


A. On 4 August 1993, while assigned to D Co. 1/159th AVN REGT and stationed at Ft. Bragg, NC, I received the Army Achievement Medal and the Army Good Conduct Medal during an awards formation. Immediately after the formation was dismissed, three of my fellow squad members held me on the ground while the remainder of the enlisted men in the company jumped on top of me, one at a time, in what is known as a "Cav Pile." This was done to all of the men in this company upon receipt of an award, or a promotion. Since I was fairly new to the unit, and this the first award ceremony that I had witnessed, I did not know that this was a tradition of the unit and I did not know that it was going to happen to me. As the last man jumped on top of the Cav Pile, from atop a five-foot tall maintenance stand, there was a loud pop and immediate, immense pain in the lumbar area of my back. This is evidence of the aforementioned dysfunction stage, and the point where the mechanical low back pain began.

Immediately after this incident, I was unable to stand and walk under my own power, and a couple of my squad members helped me across the airfield to the Troop Medical Clinic (TMC). While there, a female flight surgeon performed a chiropractic maneuver on my spine, which did elicit some relief. She then prescribed non-steroidal anti-inflammatory drugs (NSAID's) for pain and put me on a period of light duty. My service medical records (SMR's) reflect this.

B. In 1994, following a compensation and pension examination (C&P), VA diagnosed me with mechanical low back pain (VA recognition of the traumatic spine injury), and rated it 10% disabling. X-rays taken at the time showed a thoracolumbar (TC) tilt to the right, but the reading radiologist was only able to speculate as to the condition of the vertebral bodies. A TC tilt indicates a subluxation of the spine (Assessment of the Spine, Phillip S. Ebral, Elsevier Health Sciences, 2004), which is evidence of the aforementioned instability stage. My disability should have been diagnosed as DDD at this point.

C. The rating was continued by VA in 1995, with a subsequent compensation and pension (C&P) exam in 2001. During this exam, it was shown that my back pain had gotten progressively worse, and that I had to take over-the-counter (OTC) NSAID's to control the pain. X-ray evidence from that C&P showed narrowing of the L4-L5 disc space, further providing evidence of the instability stage. Also, the reading radiologist wasn't provided with any clinical information to make an informed decision. I was again misdiagnosed, as the examining physician stated that my condition was most likely due to strain versus early degenerative arthritis, which clearly wasn’t the case that the cumulative radiological evidence was painting.

D. In 2002, VA decided to continue the rating based on the 2001 C&P. However, the rater noted no clinical significance of the 2001 x-ray, even though the records clearly stated that the reading radiologist wasn't provided with any clinical information to make a informed decision on the status of degenerative changes in my spine. This is unfortunate for me, because of the following rating criteria, which was in place at the time of this rating decision (prior to September 2002):

Under Diagnostic Code 5295, lumbosacral strain is rated 20
percent disabling when there is muscle spasm on extreme
forward bending, and unilateral loss of lateral spine
motion in the standing position. A 40 percent rating (the
highest rating under Diagnostic Code 5295) requires that
the lumbosacral strain be severe, with listing of the
whole spine to the opposite side, positive Goldthwait's
sign, marked limitation of forward bending in the standing
position, loss of lateral spine motion with osteoarthritic
changes, or narrowing or irregularity of joint space, or
some of the above with abnormal mobility on forced motion.

Had the x-ray been given clinical significance, I would have clearly met the criteria for a 40% rating, based upon “narrowing or irregularity of the joint space.”

E. Another C&P was requested in 2003, and again I was misdiagnosed with a back sprain. The examining physician noted that my lower back pain (LBP) was constant, and that it kept me awake at night. He noted pain that radiates down both legs to the feet, which denotes neurogenic intermittent claudication (NC). NC is characterized by pain in the buttock, thigh, or leg, and is a significant sign of spinal stenosis. He did note that I wasn't on any pain medication, but he never addressed OTC NSAID's. To state that a patient is in constant and severe pain that is enough to disrupt sleep, but not take any medication for that pain is illogical, at best. Pain and decreased range of motion (ROM) in both hips, as well as symptoms of sciatica, were also noted during this C&P, which also denotes NC.

X-rays from this C&P showed no abnormalities, but it should be noted that there was no lateral view requested, as there had been in 2001 where narrowing of the disc space was found. Furthermore, according to the training letter, "X-rays...may show decreased disc height, but have limited value on evaluating degenerative changes...” My TC ROM was noted as "Forward flexion was within twelve inches of the floor," and "Tilting - he tilted 15-20 degrees to the left and 15-20 degrees to the right..." This constitutes an inadequate examination due to the examining physician not using a goniometer as prescribed in 38 CFR 4.46. This is clearly evidenced by his statements regarding ROM‘s. Had a goniometer been used, the ROM’s would have been stated in degrees.

F. On 25 March 2004, being in great pain and unable to obtain an appointment with my established civilian doctor, I presented to XXX Medical Group (XMG) for a list of ailments. Some of the problems I was having at the time were described by the examining physician as diffuse arthralgias (defined as pain in joints) in proximal joints, including the hips, and numbness from the knees down. This is consistent with symptoms of NC. The doctor also noted a history of DDD since 1993 that seems stable. His comment, "seems," is merely conjecture and should be discounted, given the wealth of medical evidence presented to the contrary. In fact, my daily back pain had increased from a 5/5 to a 8-9/10 on the global pain scale some two to three years prior to this visit. It was also noted by the doctor that I was taking OTC aspirin to control the pain. As a result of this visit, the physician ordered a number of tests, including a rheumatologic panel, which subsequently proved negative. This is further proof on NC caused by DDD and spinal stenosis.

On 9 April 2004 I returned to XMG for a follow up appointment. The physician noted that I was having more arthralgias now. He also stated that I was taking OTC ibuprofin. He stated at this point, my overall diagnosis was still somewhat elusive. Medical evidence, including the training letter, suggests that IVDS can manifest in a variety of symptoms, depression and its subsequent maladies included.

G. On 1 July 2004, VA reduced my compensation from 10% to 0% for this condition, based upon the 2001 and 2003 C&P's. However, it should be noted here, that this rating had been in place in excess of five years, and that nowhere in the proposal letter dated 11 Feb 04, or final decision letter dated 13 April 04, was 38 CFR 3.344 (a) and ( :lol: clearly cited. This creates a situation whereby it is unclear whether the regional office (RO) considered and applied this regulation’s provisions. In Kitchens v. Brown, 7 Vet. App. 320, 324 (1995), the United States Court of Appeals for Veterans Claims (CAVC)(formerly the United States Court of Veterans Appeals) (Court) stated "[i] n order for the VA to reduce certain service-connected disability ratings, the requirements of 38 C.F.R. § 3.344(a) and ( :angry: must be satisfied...."

At this time, I accepted the diagnoses for my LBP, because I did not have the knowledge of IVDS that I now have. I took the physician's word at face value, as do the majority of patients. My acceptance of these misdiagnoses led me to not seek treatment for this condition. After all, I had a number of VA physicians stating that I had a resolved back strain.

This is evidenced by my 16 July 2004 visit to XMG. Just three months prior, I had been presenting with a long list of ailments. On this day, I told the doctor that they all seemed to be resolved, for the most part. This is because of the letter I had received from VA stating that I had nothing more than a resolved back strain. My line of thinking at that time was "if the issue was resolved, then I should accept that I will have to live with the pain." This has caused me great duress over the last several years, and I eventually had to seek out treatment, because the pain had become debilitating, and other, more ominous symptoms were presenting.

H. In February of 2007, after several incapacitating episodes with self-imposed bed rest, I visited a local massage therapist seeking relief. On both visits, the therapist noted "...knotty and crepitations in lower back," in her records. I did receive a small amount of relief from my two visits with her, as the muscles in my back released some amount of tension. However, the relief was short-lived; only a couple of days. I could not financially afford to continue these treatments. So, again, I resolved to live with the pain and related symptoms.

In August 2007, after more incapacitating episodes with yet more self-imposed bed rest, I visited my civilian physician. Upon a thorough examination, she prescribed stronger NSAID's to help relieve the pain. I was also sent for an MRI at a private office in Bristol, Tennessee. The MRI, which was stated as the "gold standard" for identifying various spine details in the training letter, showed herniated discs at L4-5 and at L5-S1, as well as moderate degenerative disc disease (DDD) at L4-5, and spinal stenosis at L5-S1 (which was previously denoted by the narrowing of the disc space in the 2001 VA x-ray).

In September, my private physician discussed treatment options with me, based upon the MRI findings, and prescribed Darvocet for the pain. At this point, I decided it best to seek treatment from the VA due to it being a service-connected condition. Since establishing primary care treatment at the Mountain Home VAMC, my primary care physician (PCP), and a neurosurgeon have concurred with the findings of my MRI. My PCP has stated on the record that my DDD, and IVDS are both "at least as likely as not related to a back injury which occurred on active duty and is currently rated at 0%." She has also prescribed numerous NSAID's and a corset style back brace and cane. Furthermore, since establishing care at the VAMC, I have elected to no longer receive care from my civilian doctor, and I have also attended the VAMC's pain management clinic, and I have signed the VAMC's pain management agreement so that I may be prescribed narcotics to control the pain. This is something that I have tried to avoid for many years, due to the stigma attached to being medicated for back conditions, but I can no longer live with the pain that I am in without the aid of stronger medications.

In November 2007, due to my request for increased service connected compensation, I was given another C&P. The examining physician went into great detail about my condition, and gave diagnoses of DDD and spinal stenosis in my LS spine. He noted this disability has significant effects on my usual occupation and goes on to state various work problems. He also listed several moderate to severe impacts on my usual daily activities. He also showed severely limited ROM in all directions. All of this is a direct result of what VA has mischaracterized as a back strain for over a decade.

I. It is very apparent that my condition is much worse. It is also very apparent, given my increasing symptoms that the stenosis is progressing fairly rapidly. I have lived in debilitating pain for many years now. I have lost much time from work, and have had to completely remove myself from employment from time to time due to the pain that my back has been in. It has been a rough road, both physically and emotionally.

Currently, I am still working, but I have missed a great amount of time over the course of my current job, which has been all of two and a half years. However, due to my severely limited ROM, I can no longer dress myself below the waist, tie my own shoes, get in and out of bed unaided, get in or out of the shower unaided, or even bathe below the waist. I have as much as been told by my employer that retaining my services, given my current and future limitations, is getting tough.

I know that spine surgery is definitely in my future, and the threat of being confined to a wheelchair at some point in the future is real. My occupational outlook is bleak, to say the least. It is certain that any doctor would say that this didn’t have to be. My condition never should have gotten to this point, but it has, solely due to many years of misdiagnoses from VA physicians.

J. I am requesting that the diagnosis for mechanical low back pain, and it's subsequent dx code of 5295, be changed to a diagnosis of IVDS and the dx code 5243 be used instead. This better demonstrates the condition that I have suffered from for over a decade now. I further request that I be granted a 40% rating under this new code based on the ROM that was found in my last C&P. This is in accordance with 38 CFR 4.71a.

K. I am also requesting that the original 10% rating be restored, retroactively, for the period of time between 1 July 2004 and the date, which these claims are decided. I request this because the rating was reduced based on an inadequate exam (38 CFR 4.70), and because it is unclear whether or not the proper credence was given to 38 CFR 3.44 (a) and ( :D in the decision making process.



#5 Aquabear

 
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Posted 23 July 2009 - 11:46 PM

rentalguy1, wow, almost scary reading your letter, flashed back what my life has been for 10 years now. May I use your letter but tune it to my situation?
Navy 94-98 active duty, Gunners Mate, Hon Disch. 1998 CP decision SC 10% left hip, 0% back strain

AFter Navy Suffering for years of back pain n hip pain and getting worse, Hydrocodone, NSAIDS, pain, stabbing in back and groin. Jobs hard because taking time off for back pain, finances low. Was let go because of too much time off. Not working now let go due to time off and even had to withdraw from college at NYIT from VA VOc Rehab program due to pain. VAMC MRI showed hern dics -2 and tears, narrowing etc..Now had 3 spinal injections more hydrocodone, pain patches, can't imagine work now until I get better.
I just had CP exam 2 days ago an pray my rating goes up, and now I see hopefully with the correct rating too!

I posted my story already, look for me and comment please. thank you in advance.

#6 Aquabear

 
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Posted 23 July 2009 - 11:47 PM

rentalguy1, wow, almost scary reading your letter, flashed back what my life has been for 10 years now. May I use your letter but tune it to my situation?
Navy 94-98 active duty, Gunners Mate, Hon Disch. 1998 CP decision SC 10% left hip, 0% back strain

AFter Navy Suffering for years of back pain n hip pain and getting worse, Hydrocodone, NSAIDS, pain, stabbing in back and groin. Jobs hard because taking time off for back pain, finances low. Was let go because of too much time off. Not working now let go due to time off and even had to withdraw from college at NYIT from VA VOc Rehab program due to pain. VAMC MRI showed hern dics -2 and tears, narrowing etc..Now had 3 spinal injections more hydrocodone, pain patches, can't imagine work now until I get better.
I just had CP exam 2 days ago an pray my rating goes up, and now I see hopefully with the correct rating too!

I posted my story already, look for me and comment please. thank you in advance.

#7 Aquabear

 
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Posted 23 July 2009 - 11:47 PM

rentalguy1, wow, almost scary reading your letter, flashed back what my life has been for 10 years now. May I use your letter but tune it to my situation?
Navy 94-98 active duty, Gunners Mate, Hon Disch. 1998 CP decision SC 10% left hip, 0% back strain

AFter Navy Suffering for years of back pain n hip pain and getting worse, Hydrocodone, NSAIDS, pain, stabbing in back and groin. Jobs hard because taking time off for back pain, finances low. Was let go because of too much time off. Not working now let go due to time off and even had to withdraw from college at NYIT from VA VOc Rehab program due to pain. VAMC MRI showed hern dics -2 and tears, narrowing etc..Now had 3 spinal injections more hydrocodone, pain patches, can't imagine work now until I get better.
I just had CP exam 2 days ago an pray my rating goes up, and now I see hopefully with the correct rating too!

I posted my story already, look for me and comment please. thank you in advance.

#8 rentalguy1

 
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Posted 24 July 2009 - 04:59 AM

Feel free to use it, aquabear, and welcome to hadit. You might want to check out my blog for some other helpful information. Also, be sure to read up on all the info in the spine claim repository.