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I Need Help With M21- Interpretation


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2 replies to this topic

#1 mos1833

 
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Posted 16 May 2011 - 12:51 PM

i was denied in 1985 , because of a defect in my back, ( congential transitional vertebra ) under 5299=5295 they called it an anomaly, is an anomaly the same as a deformity.








5. Until December 13, 2005, the Veterans Benefits Administration (VBA) Adjudication Procedures Manual M21-1, Part VI, 11.06f, stated:

If there is any limitation of motion together with deformity (compensable or noncompensable), add 10 percent under hyphenated diagnostic code 5285-5290 (limited motion of the cervical spine), 5285-5291 (limited motion dorsal spine), or 5285-5292 (limited motion lumbar spine). Whenever there is muscle spasm together with deformity and the requirements for a compensable evaluation under diagnostic code 5295 are met, add 10 percent to the assigned evaluation under diagnostic code 5285-5295.

This provision is consistent with the view that a maximum increase of 10 percent for vertebral deformity may be added to the rating assigned to a spinal segment based on limited motion or muscle spasm. Although the Manual M21-1 does not contain substantive rules subject to public notice and comment, it provides institutional guidance to VBA’s adjudicators as to the interpretation and application of VA’s regulations. Indeed, in the veteran’s case discussed in the opinion request, the regional office applied the 10-percent provision only once, consistent with the interpretation discussed above.

#2 Berta

 
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Posted 17 May 2011 - 05:39 AM

There is a slight differences in these terms.

The problem,in your case, is the word 'congenital' and 'defect' if that is how the VA defined your disability..

“Congenital and developmental defects are not disabilities within
the meaning of applicable regulations providing for payment of VA
disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9
(2009). Therefore, such disorders require more than an increase
in severity during service in order to warrant a grant of service
connection. The evidence must show that the congenital or
developmental defect was subject to a superimposed disease or
injury during military service that resulted in increased
disability. VAOPGCPREC 82- 90 (July 18, 1990), 55 Fed. Reg.
45711 [a reissue of General Counsel opinion 01-85 (March 5,
1985)].

The VA General Counsel explained there is a distinction under the
law between a congenital or developmental "disease" and a
congenital "defect" for service connection purposes in that
congenital diseases may be recognized as service connected if the
evidence as a whole shows aggravation in service within the
meaning of VA regulations. A congenital or developmental defect,
on the other hand, because of 38 C.F.R. § 3.303©, is not
service connectable in its own right, though service connection
may be granted for additional disability due to disease or injury
superimposed upon such defect during service. VAOPGCPREC 82-90.”

http://www.va.gov/ve...es4/1039099.txt


DO you have any medical opinion that would consider this as a disease that was aggravated by service?

#3 mos1833

 
mos1833

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Posted 17 May 2011 - 11:46 AM

There is a slight differences in these terms.

The problem,in your case, is the word 'congenital' and 'defect' if that is how the VA defined your disability..

“Congenital and developmental defects are not disabilities within
the meaning of applicable regulations providing for payment of VA
disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9
(2009). Therefore, such disorders require more than an increase
in severity during service in order to warrant a grant of service
connection. The evidence must show that the congenital or
developmental defect was subject to a superimposed disease or
injury during military service that resulted in increased
disability. VAOPGCPREC 82- 90 (July 18, 1990), 55 Fed. Reg.
45711 [a reissue of General Counsel opinion 01-85 (March 5,
1985)].

The VA General Counsel explained there is a distinction under the
law between a congenital or developmental "disease" and a
congenital "defect" for service connection purposes in that
congenital diseases may be recognized as service connected if the
evidence as a whole shows aggravation in service within the
meaning of VA regulations. A congenital or developmental defect,
on the other hand, because of 38 C.F.R. § 3.303©, is not
service connectable in its own right, though service connection
may be granted for additional disability due to disease or injury
superimposed upon such defect during service. VAOPGCPREC 82-90.”

http://www.va.gov/ve...es4/1039099.txt


DO you have any medical opinion that would consider this as a disease that was aggravated by service?

thanks berta

but the best iml i can get is IT MAY BE related, and thats not good enough.