Transcript Rating Issues Involving the Musculoskeletal System
TDVA Annual Training
Orthopedic Rating Principles
Veterans Benefits Administration
October 2013
TDVA Annual Training
Training will focus on the evaluations of knee disabilities (including replacements) and spine disabilities. 2
Evaluation Considerations
Functional Loss (38 CFR 4.40) DeLuca v. Brown, 1995: Requires we consider not only limitation of motion, but also: - weakened movement, - excess fatigability, - incoordination, & - pain when evaluating these disabilities.
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Evaluation Considerations
In Mitchell v. Shinseki, 25 Vet.App. 32 (2011), the Veterans Court held that if pain is associated with movement, the examiner must give an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time and that such opinion, if feasible, be expressed in terms of the degree of additional range of motion (ROM) loss due to pain on use or during flare-ups.
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Evaluation Considerations
Suggested text for entry into Remarks for any musculoskeletal DBQ
When completing any musculoskeletal DBQ, additional information is required to comply with a recent US Court of Appeals for Veterans Claims (CAVC) decision in the case of Mitchell v. Shinseki, relating to functional limitations. In the section of the DBQ titled “Functional loss and additional limitation in ROM,” additional questions must be addressed. For each joint examined, please provide an opinion.
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Evaluation Considerations
1. Whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time, and 2. Describe any such additional limitation due to pain, weakness, fatigability or incoordination, and if feasible, this opinion should be expressed in terms of the degrees of additional ROM loss due to “pain on use or during flare-ups”.
3. If such opinion is not feasible, please state and provide an explanation as to why the opinion cannot be rendered.
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Evaluation Considerations
The examiners should indicate if pain could significantly limit functional ability during flare-ups or repeated use over time.
They should express this in degrees of additional range of motion lost.
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38 CFR 4.45 Exams
Examiners should provide history and objective findings, as well as findings of:
Less movement than normal More movement than normal Weakened movement Excess fatigability Incoordination Pain on movement
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Shoulder Elbow Wrist Hip Knee Ankle
Major Joints
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Groups of Minor Joints
Multiple involvements of the:
Interphalangeal, metacarpal and carpal joints of upper extremities
Interphalangeal, metatarsal and tarsal joints of the lower extremities
Cervical vertebrae Dorsal vertebrae Lumbar vertebrae Lumbosacral articulation and sacroiliac joints (rated on disturbance of lumbar spine functions)
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38 CFR 4.59 Painful Motion
With any form of arthritis, painful motion is an important factor of disability.
Findings of painful, unstable, or malaligned joints due to healed injury should be entitled to at least the minimum compensable evaluation. (10%)
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38 CFR 4.69 Dominant Hand
Evaluation percentages involving upper extremities will allow for a greater evaluation when the condition affects the major (dominant) hand.
Only one extremity can be dominant.
If the claimant is ambidextrous, the injured hand will be considered dominant.
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38 CFR 4.62 Circulatory Disturbances
Do not overlook circulatory disturbance, especially of the lower extremity following injury in the popliteal space.
Requires rating generally as phlebitis.
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Medical Examination Criteria
Examiner must report based on requirements of 38 CFR 4.45
Additional x-rays, lab work, MRI or CT scans may be ordered Complete range of motion studies are required Accurate measurement of the length of any amputation stump is required Scars and any additional disability due to them should be noted. They are to be rated separately if appropriate.
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38 CFR 4.68 Amputation Rule
The combined evaluation for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were the amputation to be performed.
Examples
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38 CFR 4.58 Arthritis Due to Strain
When there is a lower extremity shortening or amputation, an associated arthritis that subsequently develops (in lower extremities, lumbosacral joints, or lumbosacral spine) will be service connected.
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38 CFR 4.58 Arthritis Due to Strain
For upper extremities, we can only consider service connection for arthritis in joints subject to direct strain or those actually injured.
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Separate Evaluations for Arthritis of the Knee
VAOPGCPREC 23-97 General Counsel Opinion held that a claimant who has arthritis and instability of the knee may be rated separately under: DC 5003 (degenerative arthritis) and DC 5257 (knee instability)
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Separate Evaluations for Arthritis of the Knee
They determined that 38 CFR 4.14 (pyramiding) only prohibits separate evaluations of disorders having the same disabling manifestations.
A separate rating can be assigned if there is additional disability.
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Separate Evaluations for the Knee
VAOPGCPREC 9-2004 General Counsel Opining held that a veteran may receive separate ratings for: DC 5260 Limitation of flexion and DC 5261 Limitation of extension for the same knee.
( See also FL 04-22 )
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Separate Evaluations for the Knee
However, where joint motion is not limited, but there is objective evidence of pain on motion, only one compensable evaluation can be assigned under either DC 5260 or DC 5261. (38 CFR 4.14)
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Separate Evaluations for the Knee
Although it is permissible to assign multiple evaluations under multiple diagnostic codes for a single knee, always abide by the amputation rule (38 CFR 4.68).
General Counsel Opinions are not a liberalizing interpretation of the rating schedule, and the provisions of 38 CFR 3.114(a) do not apply.
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Prosthetic Implants
Temporary total evaluation for one year following replacement of: shoulder, elbow, writs, hip, knee, or ankle joint (38 CFR 4.30) After that, rate on residual disability DC’s 5051 – 5056 SMC may be assigned during the period of total evaluation if the permanent use of crutches are required
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DC 5055 Knee Replacement
5055 Knee replacement (prosthesis). Prosthetic replacement of knee joint: For 1 year following implantation of prosthesis 100 With chronic residuals consisting of severe painful motion or weakness in the affected extremity 60 With intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262.
Prosthetic Implants
The prosthetic implant must be a total joint replacement to warrant entitlement to the 13 months of 100 percent evaluation under the scheduler criteria.
Partial joint replacements only warrant a 100 percent evaluation under Paragraph 30 benefits for convalescence.
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The Spine
Low Back Pain (LBP), Lumbosacral Strain (LS) and subsequently developing Herniation of a Nucleus Pulposus (HNP) Commonly a veteran will establish SC for LBP/LS and will later develop HNP. The HNP can be service connected if a progressive condition can be established.
However, denial may be appropriate if the LS-LBP has been long asymptomatic, and no causal relationship can be established to the HNP.
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General Rating Formula for Diseases and Injuries of the Spine
Unfavorable ankylosis of the entire spine 100 Unfavorable ankylosis of the entire thoracolumbar spine 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30
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General Rating Formula for Diseases and Injuries of the Spine
Forward 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 kyphosis 20
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General Rating Formula for Diseases and Injuries of the Spine
Forward 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 10
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General Rating Formula for the Diseases and Injuries of the Spine
Note: (1) Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
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Ankylosis and Limitation of Motion of the Spine
DC’s 5235 – 5243 are used for ankylosis or limitation of motion of the spine Normal Ranges of Motion of TL Spine Forward Flexion Extension 0 to 90 degrees 0 to 30 degrees Left Lateral Flexion Right Lateral Flexion Left Lateral Rotation Right Lateral Rotation 0 to 30 degrees 0 to 30 degrees 0 to 30 degrees 0 to 30 degrees
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Intervertebral Disc Syndrome (IVDS)
DC 5243 IVDS results from displacement of intervertebral disc or disc fragments.
There is usually pain and other signs & symptoms.
It may also be called: slipped, herniated, ruptured, prolapsed, bulging, or protruded disc; degenerative disc disease (DDD); sciatica; discogenic pain syndrome; herniated nucleus pulposus; pinched nerve; etc.
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Intervertebral Disc Syndrome (IVDS)
The rating criteria for IVDS was revised on September 23, 2002 and its corresponding DC changed to 5243 on September 26, 2003. It can now be evaluated based on: - periods of acute symptoms, or - chronic orthopedic manifestations.
If both are present, use the method that is most advantageous to the veteran.
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Intervertebral Disc Syndrome (IVDS)
5243 Intervertebral disc syndrome Rating With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months 60 With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months 40 With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months 20 With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months 10
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Intervertebral Disc Syndrome (IVDS)
Note (1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.
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Intervertebral Disc Syndrome
5243 ***Intervertebral disc syndrome
***Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under Sec. 4.25.
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Fully Developed Claims
Advantages of an FDC Claim: Veteran – Less time; identify evidence at the time of application VSO – Greater control VBA – Dramatically reduces processing time of claims; less claims development needed
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FDC Tips For Success
Submit an FDC electronically Provide information up front Provide Service Treatment Records (STRs) and Disability Benefit Questionnaires (DBQs) for maximum expedition of claim
Make sure form is complete and all check boxes are marked correctly
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VA’S Obligation
The VA will: Retrieve relevant records from federal facilities
Provide medical examinations/opinions
Keep Veteran informed
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Types of Claims For FDC Submission
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How To Avoid Exclusion From The FDC Program
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FDC Exclusions
A claim is considered disqualified from the FDC Program if: Further evidence is needed from the claimant or an identified private medical provider The claim requires any non-federal development Appeal pending and their claims file is not on station Claimant excludes self on application Claim requires a character of discharge determination Supplemental claims or additional evidence after receipt of the FDC Failure to report to a VA examination
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FDC UPDATE!
On August 6, 2012, the President signed a comprehensive legislative package, the “Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012,” Public Law 112-154. Section 506 of this Act amends 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed ORIGINAL claims for compensation received from August 6, 2013, through August 5, 2015. The purpose of this change is to provide an incentive to stakeholders to submit fully developed claims.
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CATEGORIZED EXCLUSIONS FOR TDVA FY 2013 TO DATE
Additional Evidence
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Claimant declined FDC Processing Evidence received after FDC CEST Needs Non Federal evidence development
12 196 221
VBA Administrative Reason
471 44
Average Days To Complete FDC Claims
FDC At Completion
3558 Average Days To Complete 112.4
Not FDC At Completion
7849 Average Days To Complete 184.7
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Comparison
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New Information September 2013
FL 12-25, The Fully Developed Claim Program
, states on page seven that, should a claim require further development of evidence from the claimant, it must be excluded from the Fully Developed Claim program. Therefore, in this case, exclude the claim and send the claimant a VA Form 21-0781 .
In addition, if further development of evidence is required from a claimant related to another special issue not included in “Special Circumstances,” the claim should also be excluded from the Fully Developed Claim program.
These special issues include, but are not limited to: herbicide exposure, exposure to Hepatitis C, and exposure to radiation. Send the claimant a development letter explaining why the claim was excluded and what evidence is needed to decide the claim.
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Thank You!!
Questions????
THE END!
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