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#1 rpowell01

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Posted 05 June 2013 - 09:36 AM

It is my understanding that the VA rates the Thoracolumbar as one segment. Basically this means if one part of the Thoracic spine is messed up and later on in life the lumbar starts to mess up then it is suppose to be rated as the same as if it was the thoracic spine because there is no Thoracic and lumbar separation in the diagnostic codes...Correct? 

 

I've been looking at all my stuff and I think I missed something and so has the VA of course. After the accident in service it was my thoracic spine area that gave me huge problems. Then within a year all the pain progressed to my lower back and cervical spine. While in service the XRays showed degenerative changes in my thoracic spine. I was medically discharged for mechanical lower back pain (trust me if I knew then what I knew now, they should have retired me because of my cervical spine also)....

 

Fast forward to today. I currently have Osteoarthritis in CSpine, Thoracic Spine and Lumbar Spine. But in my Thoracic Spine you can see the vertebrae basically deteriorating, I think its called Schmorl's nodes which are small protrusions of vertebral disk tissue that bulge through the ends of weakened vertebrae.

 

 

In 2011, after realizing the VA never connected nor even mentioned my Thoracic Spine issues I file a claim on that particular issue. Well the C&P examiner said that it was an inservice diagnosis and that it was 100% service connected. 

 

So, if my thoracic spine is serviced connected with current Osteoarthritis should the VA have SC'd my Osteoarthritis/DDD in my Lumbar with the same claim when in fact they knew I had DDD back then and I had a similar active claim and since they are ONE segment? This is like saying we if a person had two breaks in one bone and they SC'd one break but not the other.

 

Here is the definition of Thoracolumbar:

 

1. Of or relating to the thoracic and lumbar parts of the spinal column.
2. Of or relating to the thoracic and lumbar nerves.
3. Of or relating to the sympathetic division of the autonomic nervous system.
 
 
 
I could be wrong but the VA should have rated both as one?
 
They are Preparing a Decision on my current claims but I do have a NOD by DRO actively in with them. I did submit a Dr. Bash IMO for the NOD and the active claims. I am hoping they will combine both of them together on making a decision, I can just hope.
 
If they don't couldn't this argument be one of the many arguments that I have I can use if I have to or when I go see the DRO for the NOD if I have to go that far? 


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#2 rpowell01

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Posted 05 June 2013 - 09:44 AM

Let me add one more to that and extend the question. I have radiculopathy in both my legs and feet. Since the Thoracolumbar is considered one as written by definition: Of or relating to the thoracic and lumbar nerves, should they also have had rated the radiculopathy as part of the Thoracolumbar. It is my understanding by all the BVA case I have read the RO's and C&P examiners are NOT suppose to pick and chose and separate the Thoracolumbar....



#3 rpowell01

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Posted 05 June 2013 - 09:55 AM

You can chime in on this but I think JBasser answered my question:

 

"Sharon, the c spine is rated separate. The Thoracic and lumbar spine are combined. The VA uses the term thoracolumbar that is a combination of the two.


General Rating Formula for Diseases and Injuries of the Spine(For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes):With or without symptoms such as pain (whther or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or diseaseUnfavorable ankylosis of the entire spine100Unfavorable ankylosis of the entire thoracolumbar spine50Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine40Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine30Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis20Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height."

 

So it seems the RO raters are doing their own thing instead of going by the Diagnostic Codes. Its okay I am ready for them at the NOD by DRO if I have to go that far....



#4 71M10

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Posted 05 June 2013 - 02:54 PM

There is ambiguity in the regulation (suprised?). 

 

§ 4.45 The joints.

 [redacted to save space]

(f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions.

 

This part of 38 CFR clearly indicates they are seperate segements. for ratings based on arthritis only they would be rated seperately.  For IVDS you could generate seperate ratings for each segement provided that the incapacitating episodes were distinct and seperate for each segment. 

 

If you have khyposis or scoliosis in your thoracic spine segment you should be able to get service connection for the lumbar segment and cervical segment under:

 

§ 4.59 Painful motion.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.

 

I forced my cervical SC with this citation since my throracic spine has khyposcoliosis (kyphosis and scoliosis).  Next time my file is open I will push for seperate SC for my lumbar spine(no ratings increase) since a C&P physician when discussing radiculopathy indicated my lumbar spine wasn't SC therfore radiculopathy was a mute point.  Because my evidence was weak I didn't push it, but I am gathering evidence and we will be putting this in the stack if they ever try to reduce or open up my ratings again.

 

Best regards,



#5 rpowell01

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Posted 10 June 2013 - 05:30 PM

The problem I have had was that they VA serviced connected me with "Cervical Spine Pain" and Mechanical Lower Back Pain"....So, I had to get Dr. Bash on the case and look at everything. He basically quoted word for word from medical journals that linked the trauma/injury and that I had DDD/Osteoarthritus/DJD throughout my whole spine.

 

I actually have a NOD by DRO in whenever they denied my DDD/Osteoarthritis, basically trying to get them to change the Diagnostic Code to the next level in my spine but they denied it even though one C&P examiner said I had degenerative changes in my thoracic spine on XRay while in the military.

 

They don't seem to understand that since 1. The Xrays  showed degernative changes and 2. The C&P Examiner said I had Degenerative Changes in my Thoracic Spine that it was in fact service connected I have them by these two things.

 

You can separate the Thoracic and Lumbar even for being rated. So this means that if I now have DDD/Osteoarthritis in my lumbar like I do in my thoracic spine then they MUST service connect the radiculopathy in my legs, feet and toes.

 

Its all good, I can't wait to have my NOD by DRO, unless the decide to take the NOD by DRO and combine it with my current claims because of Dr. Bash's letter.

 

Finger crossed and I have actually started to write up a huge report for the NOD. And I am writing up my rebuttal to the current C&P exam along with witness statement from my wife.



#6 71M10

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Posted 12 June 2013 - 11:41 AM

Eventually someone (DRO, BVA, CAVC) will understand that they are entitled to form their own opinions, but not facts.

 

It sounds like you have some good strong facts on your side.  Eventually the VA will have to deal with them.  What they hope to do is stall, demoralize, confuse with the goal of you not filing a timely appeal or accepting their lowball rating.  They are hoping you make a mistake!

 

Hang in there and best regards,


Edited by 71M10, 12 June 2013 - 11:41 AM.


#7 rpowell01

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Posted 12 June 2013 - 05:59 PM

Oh I got them with that C&P Examiner back in 2011 stating my thoracic spine was a cause and with Dr. Bash's IMO I will prevail.

 

They just want to play the "Lets see how stupid this guy is" game and I am prevailing IMHO...



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Posted 24 June 2013 - 03:10 PM

Don't know what this will mean to the VA but what I'm wondering is what percent ill get for my MRI diagnoses...
- THORAC/LUMBOSACRAL NEURITIS/RADICULITIS
- DDD LUMBAR SPINE
- LUMBAR DISC DISPLACEMENT

#9 carlie

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Posted 24 June 2013 - 04:06 PM

Don't know what this will mean to the VA but what I'm wondering is what percent ill get for my MRI diagnoses...
- THORAC/LUMBOSACRAL NEURITIS/RADICULITIS
- DDD LUMBAR SPINE
- LUMBAR DISC DISPLACEMENT

 

Please don't post the same thing in different forums

and start a new topic.

Thanks



#10 leadbelly1981

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Posted 28 March 2014 - 10:51 AM

I have mild degeneration in my t12 and t11 I hurt my back numerous times but never went to sick call, so I don't have anything noted in my smr. Will the va grant sc if you told the c and p doc about your pain prior to ets and they are currently still developing your claim. I have x rays showing degeneration of my lower thoracic spine. I'm only 33 and never injured my back prior to my 3 years in the infantry.

#11 arng11

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Posted 28 March 2014 - 12:06 PM

I have mild degeneration in my t12 and t11 I hurt my back numerous times but never went to sick call, so I don't have anything noted in my smr. Will the va grant sc if you told the c and p doc about your pain prior to ets and they are currently still developing your claim. I have x rays showing degeneration of my lower thoracic spine. I'm only 33 and never injured my back prior to my 3 years in the infantry.

i would say most likely not. If you don't have the Inservice medical documentation they won't make that leap for you. They are notorious for this. Look through your records maybe you are overlooking something, that happens with the timespan I between your injury and when you decide to pursue a claim.

Edited by arng11, 28 March 2014 - 12:07 PM.


#12 71M10

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Posted 28 March 2014 - 12:12 PM

Leadbelly, If you have xray evidence of arthritis within service or the first year afterwards, service connection should be no problem!



#13 leadbelly1981

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Posted 28 March 2014 - 01:28 PM

That is exactly the thing. I don't. But as I understand things the va has the duty to assist the veteran in developing the claim. I filed this claim in September 2003 two months prior to my gets. After I gets I got a letter stating that my claim was deferred for additional development, had the va developed my claim would have had evidence but they didn't and it is now 11 years later. I would have also had evidence after I got out but I made to much to qualify for va or state insurance but not enough to afford private insurance. So right now the va acknowledged that my claim is outstanding and has again deferred it for additional development. I have Dr x rays from my chiropractic doc showing he degeneration in the area where I have pain.

#14 leadbelly1981

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Posted 28 March 2014 - 01:32 PM

So since the va never developed this claim shouldn't the finding of my next c and p be considered.

#15 arng11

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Posted 29 March 2014 - 09:21 AM

I am a bit of a pessimist and a realists.  You and I or  just say we as claimants are going to have to realize that the VA is not our friend.  They are not going to make it easy on us.   They are an insurance company of sorts, plain and simple.  They are going to try to tear up the validity of your claim, attack your character, blame it on something other than your military service, such as genetics or some type of willful misconduct on your part.  Yes the law is on our side, yes there are regulations that state this is how things are supposed to be, however, if that were the case there wouldn't be the need for an appeals process.  There would not be a need to seek appellate review and furthermore there wouldn't be the need to take this up to through the court system.  It is what it is.   The sooner you realize that the real enemy is the VA system, the sooner you will be in conquering your new enemy.   Not trying to be dramatic.  I am just stating how it is.  The weapons you have now are law, regulation, and evidence so it would behoove all of us to use them strategically and without remorse.  This IS our reality and this IS our new WAR!!!!

 

JMHO from the heart.


Edited by arng11, 29 March 2014 - 09:21 AM.


#16 leadbelly1981

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Posted 29 March 2014 - 10:21 AM

I totally agree with and see what you are saying. Thank you for your input. I will have to play their game this September is 11 years since I filed the claim. I'm hopeful that the va will order a c and p and x rays and see the degeneration and link the degeneration with my claim of lower back pain from 2003 since they should have ordered and c and p in 2004. But like you said this is dog eat dog so any input is greatly appreciated.

#17 arng11

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Posted 30 March 2014 - 06:19 AM

I totally agree with and see what you are saying. Thank you for your input. I will have to play their game this September is 11 years since I filed the claim. I'm hopeful that the va will order a c and p and x rays and see the degeneration and link the degeneration with my claim of lower back pain from 2003 since they should have ordered and c and p in 2004. But like you said this is dog eat dog so any input is greatly appreciated.

I don't want to break the bad news to you on this.  But in case you haven't figured it out.  The time to have appealed that bogus decision was during the first year while in the NOD period.  Since that time has long expired you are out of look getting any retro.  There is a chance, that if you have everything they had at the time of the decision, and can prove that your conditions should have been rated higher, and prove that they did not follow the law, then you might be able to call a CUE.  Clear and unmistakable error.  However, with saying that, the process of CUE is lengthy and a crapshoot.  Plus, you, as the veteran, don't have the law on your side as you do at the beginning of any claim. CUE is an ugly animal, although possible to win, it is a long drawn out battle.  I am not trying to kill your hopes.  I am just trying to prepare you for the BS!  Ask around on here.  Berta has some CUE templates and you can research on your own some of the decisions that  the BVA and CAVC has made.  There are plenty of Supreme court decisions as well.  The amount of firepower you have and use is totally on you.  The law, regs, and precedent set by the courts are your weapons.  Evidence is your artillery and truth are your smart bombs.  Hit them every which way you can.



#18 leadbelly1981

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Posted 30 March 2014 - 10:18 AM

So they can shoot down a claim because they never made a decision and too much time has passed?

#19 arng11

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Posted 30 March 2014 - 08:06 PM

personally I never read about an initial claim taking that long to get rated and decided on. But you are 30% right?  I can tell you will get lowballed as most of us do.  They will probably give you a 10% for IVDS of 1 vertebrae and unless you have 6 weeks I believe of incapacitating episodes you will not make the higher rating.  Check the CFR though.  I don't recall the exact specifics. Degenerative arthritis will either land you 10 to 20 % for each major subgroup but thoracic and lumbar are rated as one.   Then there is the range of motion part of the regs.  Greater than 60 less than 85 10%. Greater than 30 but less than 60 20%.  Check out CFR diagnostic codes 5235 and so forth that you give you a good start.

 

I have mild degeneration in my t12 and t11 I hurt my back numerous times but never went to sick call, so I don't have anything noted in my smr. Will the va grant sc if you told the c and p doc about your pain prior to ets and they are currently still developing your claim. I have x rays showing degeneration of my lower thoracic spine. I'm only 33 and never injured my back prior to my 3 years in the infantry.






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