C&P ROM RESULTS AND APPEALING

islandboy25

PEB Forum Regular Member
PEB Forum Veteran
Registered Member
Hello, I did my C&P examination back in April and I had a forward flexion of 50 degrees from eyeball measurement. I spoke with the lawyer last Friday when I went in for my NARSUM review. she advised me to try and find any medical documentation showing where I had ROM testing done with a lower forward flexion, after combing thru my records I found one from October 2014 showing 30 Degrees. Will that be sufficient to appeal or I need a more current ROM testing? Thank you.
 
Past documentation is good, but your best bet is to get a current DBQ - Disability Benefit Questionnaire completed by an outside Orthopedic Surgeon of your choice. It asks roughly the same questions as should have been answered in the C&P, but from a source other than the VA.

I suggest you download the spinal DBQ from the VA website and hand a hard copy to the civilian physician to fill out. Tell them you want to hold on to it for an upcoming appeal. That way you have a chance to look it over and see if you agree with it and it helps you BEFORE the VA has their hands on it. Call it Quality Assurance. If you let the physician download and immediately upload it back to the VA, that's out the window.

At the PEB stage, once your VA ratings come back you can submit a VARR VA Ratings Reconsideration, with the DBQ as strong evidence. You can do it earlier, but run the risk of the VA ignoring it or filing it in the trash, and then it's not new evidence and "might" be disallowed at the PEB stage for a VARR.

The good news is, if the VA and the DBQ exams and opinions disagree on the same ratable issue, the VA is REQUIRED to use the higher rating.

Remember your BIG fight at the MEB stage is not about ROM, but getting ANY and ALL conditions that should NOT meet Retention Standards to be listed accordingly by the MEB, even if that means doing an appeal at the MEB stage.

It's those conditions that do NOT meet Retention Standards, that the PEB keys on to decide what conditions are Unfitting, and it's the Unfitting conditions that count for the DOD combined rating, which is what decides if you are Medically Separated (without benefits) or Medically Retired (with benefits, including Tricare Medical Insurance for life).

For spinal injuries, if you have pain and numbness in your legs, that's called "Radiculopathy" and it is a Rated condition that does NOT meet Retention Standards, depending on severity. It's rated for EACH leg separately. It falls under AR 40-501 Army Retention Standards, paragraph 3-30j. (if you're in another service you'll have to look up for your branch).

In my case, on appeal to the MEB they added Radiculopathy for EACH leg as NOT meeting Retention Standards. That was KEY at the PEB stage, as the radiculopathy was rating 10% right leg, 10% left leg. That combined with even 10% for my back (initially) was enough to meet the 30% combined DOD rating threshold for Medical Retirement.

My best advice, get the DBQ done for a later battle, and be prepared to fight for the best outcome at the MEB to set you up for success at the PEB stage. Chess not Checkers.

Good Luck
Hope this Helps...
 
The good news is, if the VA and the DBQ exams and opinions disagree on the same ratable issue, the VA is REQUIRED to use the higher rating.

To expand on this a little more, the VA is required to resolve doubt in your favor. If the C&P is good evidence and the DBQ you submit is good evidence, there is doubt, so then you get whichever is best. If there is some reason why the C&P is better evidence it gets stronger weight and then there isn't doubt. Its also worth noting that the rating is supposed to be based on your functional impairment. If you have a good day where you can move 50 degrees, but a decent number of days where you can move only 30 degrees, the 30 degrees is a better reflection of how you functiont. After all, that reflects what you'd be able to be reliably able to do and hence what type of work you'd qualify for. Most jobs aren't gonna say, well that's ok, that task will wait until you have a good back day.

While getting a new ROM is good, as the rating is supposed to reflect your current state, its not 100% required. The 2014 ROM can be shown along with evidence that things are getting worse instead of better, or at best staying the same. If a rater saw that you have DDD and a year ago you were measured at 30 degrees he'd start to wonder how in the world you back got better with a degenerative disease and he should regard the 2014 ROM as accurate. That's counting on the rater to be smart, which I doubt is 100% true. If you can get a new ROM to go with it, it should clearly show the C&P exam wasn't accurate.

The radiculopathy issue is key for most back problems though. Radiculopathy + back is far more common than back alone to get retirement.
 
Thanks to both you guys for providing very good information, I was able to see my PCM today and she put in a referral for me to get another ROM test done. I will provide an update once it's complete. Thanks again
 
Past documentation is good, but your best bet is to get a current DBQ - Disability Benefit Questionnaire completed by an outside Orthopedic Surgeon of your choice. It asks roughly the same questions as should have been answered in the C&P, but from a source other than the VA.

I suggest you download the spinal DBQ from the VA website and hand a hard copy to the civilian physician to fill out. Tell them you want to hold on to it for an upcoming appeal. That way you have a chance to look it over and see if you agree with it and it helps you BEFORE the VA has their hands on it. Call it Quality Assurance. If you let the physician download and immediately upload it back to the VA, that's out the window.

At the PEB stage, once your VA ratings come back you can submit a VARR VA Ratings Reconsideration, with the DBQ as strong evidence. You can do it earlier, but run the risk of the VA ignoring it or filing it in the trash, and then it's not new evidence and "might" be disallowed at the PEB stage for a VARR.

The good news is, if the VA and the DBQ exams and opinions disagree on the same ratable issue, the VA is REQUIRED to use the higher rating.

Remember your BIG fight at the MEB stage is not about ROM, but getting ANY and ALL conditions that should NOT meet Retention Standards to be listed accordingly by the MEB, even if that means doing an appeal at the MEB stage.

It's those conditions that do NOT meet Retention Standards, that the PEB keys on to decide what conditions are Unfitting, and it's the Unfitting conditions that count for the DOD combined rating, which is what decides if you are Medically Separated (without benefits) or Medically Retired (with benefits, including Tricare Medical Insurance for life).

For spinal injuries, if you have pain and numbness in your legs, that's called "Radiculopathy" and it is a Rated condition that does NOT meet Retention Standards, depending on severity. It's rated for EACH leg separately. It falls under AR 40-501 Army Retention Standards, paragraph 3-30j. (if you're in another service you'll have to look up for your branch).

In my case, on appeal to the MEB they added Radiculopathy for EACH leg as NOT meeting Retention Standards. That was KEY at the PEB stage, as the radiculopathy was rating 10% right leg, 10% left leg. That combined with even 10% for my back (initially) was enough to meet the 30% combined DOD rating threshold for Medical Retirement.

My best advice, get the DBQ done for a later battle, and be prepared to fight for the best outcome at the MEB to set you up for success at the PEB stage. Chess not Checkers.

Good Luck
Hope this Helps...

I'm having to get my DBQ redone since the VA C&P Examiner botched everything and checked my spine as okay with 90 forward flexion when I was not able to. So I am going to see a chiropractor to do my DBQ for my lower back, will that be enough solid evidence?
 
I'm having to get my DBQ redone since the VA C&P Examiner botched everything and checked my spine as okay with 90 forward flexion when I was not able to. So I am going to see a chiropractor to do my DBQ for my lower back, will that be enough solid evidence?
The DBQ saved my bacon, I'm not sure if a Chiropractor holds the same weight as an Orthopedic Surgeon or even a General Practitioner, that might be something to consider. I'd also suggest you get the doctor to give you back a HARD COPY of the DBQ rather than electronically file directly to the VA's system, that way you'll have a chance to review it for content and completeness and make damned sure it works to your benefit BEFORE the VA gets their hands on it. In my case I reviewed the Hard Copy asked the doctor to clarify where it was lacking, and then waited to submit the DBQ with my PEB Appeal / VARR. I did this to avoid the chance the VA would file it in the trash can during the initial PEB findings and then say it's ALREADY been considered and ISN'T NEW EVIDENCE during the PEB Appeal / VARR. Might be overly cautious to do it this way, but after being jacked around on my C&P Exams the same way you were, I wasn't giving them an excuse to wriggle out of a fair rating.

Also, make sure you have ALL the ratable conditions that qualify listed on the MEB findings. This is where the MEB appeal and a decent JAG (or private) attorney are VERY IMPORTANT. In my case my JAB attorney (appointed to me) suggested adding the Left and Right leg radiculopathy (numbness and pain). Even at the low ball ratings of the original PEB finding (before the DBQ) that gave me 10% for my spinal injury AND 10% for EACH leg's radiculopathy, enough to get me to that magic 30% for Medical Retirement, so that part of the fight was won even before the PEB Appeal / VARR (VA Ratings Reconsideration). It's VERY IMPORTANT to get the best findings possible at EACH STEP (C&P, MEB, and PEB) since if you don't have it listed at the MEB stage, it won't even be considered at the PEB stage, and you're unlikely to be allowed to go back to get something missed included.

Hope this helps…
 
The DBQ saved my bacon, I'm not sure if a Chiropractor holds the same weight as an Orthopedic Surgeon or even a General Practitioner, that might be something to consider. I'd also suggest you get the doctor to give you back a HARD COPY of the DBQ rather than electronically file directly to the VA's system, that way you'll have a chance to review it for content and completeness and make damned sure it works to your benefit BEFORE the VA gets their hands on it. In my case I reviewed the Hard Copy asked the doctor to clarify where it was lacking, and then waited to submit the DBQ with my PEB Appeal / VARR. I did this to avoid the chance the VA would file it in the trash can during the initial PEB findings and then say it's ALREADY been considered and ISN'T NEW EVIDENCE during the PEB Appeal / VARR. Might be overly cautious to do it this way, but after being jacked around on my C&P Exams the same way you were, I wasn't giving them an excuse to wriggle out of a fair rating.

Also, make sure you have ALL the ratable conditions that qualify listed on the MEB findings. This is where the MEB appeal and a decent JAG (or private) attorney are VERY IMPORTANT. In my case my JAB attorney (appointed to me) suggested adding the Left and Right leg radiculopathy (numbness and pain). Even at the low ball ratings of the original PEB finding (before the DBQ) that gave me 10% for my spinal injury AND 10% for EACH leg's radiculopathy, enough to get me to that magic 30% for Medical Retirement, so that part of the fight was won even before the PEB Appeal / VARR (VA Ratings Reconsideration). It's VERY IMPORTANT to get the best findings possible at EACH STEP (C&P, MEB, and PEB) since if you don't have it listed at the MEB stage, it won't even be considered at the PEB stage, and you're unlikely to be allowed to go back to get something missed included.

Hope this helps…

I would end up going to the chiropractor I mean they have been well known and have done many before. I just need a new DBQ ya know? I’m hoping that’ll work? I wouldn’t see why it WOULDNT, and I have loads and loads of files in my medical history for my back. The DBQ would end up aligning with my file history. I would assume the VA would still view it since the results would show I’m limited in motion compared to the VA exam where it shows “nothing” is wrong.
Still worth getting the chiropractor to do it? I wouldn’t see why it won’t hold weight I would give them.a hard copy and keep it as well
 
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