Lumbosacral Neuritis rated separately or together as a secondary condition?

Alluvesscs11

Registered Member
#1
The skinny of my story is this: I was medically separated with severance pay from the Navy with a 20% unfitting rating of Spondylolithesis with a pars defect, Intervertebral disc syndrome, lumbosacral neuritis, a herniated disc at L5-S1 and Spondylolysis. I have a total of 5 lumbar spine diagnosis's that were pyramided together to give me the 20% unfitting condition rating for all of them based on my ROM at the time. HOWEVER, once I was out and got my VA rating, I saw that the VA gave me 20% for my other 4 back conditions but rated the neuritis separately from my back as leg pain and also gave me 20% for it which was 10% for each of the left and right sides. When I saw this I appealed to the BCNR to correct the military's mistake of not raing it separately which would have bumped my PEB rating from 20% to 40% and I would have been medically retired instead. Just got the decision back from the BCNR and they said that the military was correct and that it is a secondary condition to the IDS and does not warrant a separate percentage but clearly the VA thinks it does?! Furthermore, this website I found (http://www.militarydisabilitymadeeasy.com/thespine.html) under Secondary Conditions states this "So, if the primary condition is spinal stenosis (In my case it's Intervertebral Disc Syndrome) which causes a secondary condition of radiculopathy down the left leg by pushing on a nerve, then the radiculopathy would be independently ratable since the amount of pain it creates significantly contributes to the inability of a service member to perform his job." Which this is exactly what happened to me. I was in too much pain to walk normal and had to use a cane because my leg hurt so bad and I was bed ridden for 4 to 6 months before I got my first injection from pain management....

So my question is: how do I fight this? Any and all relevant help would be greatly appreciated!
 

Alluvesscs11

Registered Member
#3
No I do not, all I have is a VA adviser who is kind of stumped with me. He suggested that I try to do the impossible and get a letter from ortho stating exactly why the neuritis should be rated separately and then send that to the BCNR as an appeal but otherwise I'm SOL....do you think this is worthy of federal court? The other thing is that I can't work due to spontaneous flare ups and day to day pain so I'm very limited on funds...
 

scoutCC

PEB Forum Veteran
Registered Member
#4
The VA thinks its secondary to the back as well. The problem comes with the difference between service connected (VA rating) and unfit (DoD rating). The military only rates things that are unfit. So its perfectly valid to say your back pain is what causes you to no longer to be able to serve, not the leg pain. Yes, they are separate ratings, but that doesn't mean they are both unfit.

If you have evidence that it was your leg, and your ability to move your leg, that caused you to be unfit for continued service you need to ensure the BCNR sees that. Most likely your profiles were written up to just reflect the back injury, so hence the back was the only unfit condition. If the documentation isn't there, it can be very hard for the BCNR to come to the correct conclusion.

If the medical records are just garbage, which I imagine they are, I'd try to get in contact with your old leadership and see if they can explain how you were functioning back then and what activities you were limited in doing due to the leg. If it just hurt and it sucked, that's not enough to say you were unfit. If you couldn't stand in formation due to your leg, or something like that, and they just worked with the problem since you already had a profile that may be enough to explain the situation in the way the BCNR needs it. If you have additional evidence you can go back to the BCNR, or you may be able to try the PDBR.
 

Alluvesscs11

Registered Member
#5
I see your point but the military rated the neuritis as unfitting along with the other 4 diagnoses on my back. It was explained to me when I got my results that the only reason I did not get separate percentages including 0% for each an every diagnosis was because they were all located in the same area of the lumbar spine. Each and every one of those diagnoses by themselves are considered unfitting and they said the way situations like this are processed is that the condition with the highest percentage would be the one rated. But the VA thinks the leg pain was enough to give me an extra 20% and the military shouldn't have grouped it in with my back problems but another problem entirely even though my back problems caused it.

I actually DO have a letter from my command and my flight surgeon explaining the severity of my condition from when I went to the formal PEB hearing and it goes into how I could barely walk properly and includes 6 months worth of SIQ chits I made copies of to prove I couldn't do anything but stay in bed plus the cane I received from the VA home health nurse I had during this time period. It's not clear however if the BCNR actually saw any of this submitted evidence to the PEB or if they just looked at the PEB original findings and appeal results (which the appeal had nothing to do with what I'm trying to argue now).....Do you thing I should make more copies of this paperwork and submit it as new evidence for an appeal? Would it technically be considered new evidence?
 

Alluvesscs11

Registered Member
#6
Furthermore I had a long series of LIMDU chits saying no sitting or standing for more than 30 minutes, no pt, no standing in quarters and no lifting more than 10lbs and a sneaker chit for when I was at work after I started receiving my injections.......
 

scoutCC

PEB Forum Veteran
Registered Member
#7
Well, the response to the BCMR can really swing on the details. Their saying no can be interpreted as a need for more or better evidence, or it may show you need to come back with the right argument or it may show they just FUBARed the whole thing and you need a higher court to direct them to do the right thing.

They may have just said no, the 20% was correct given your state at discharge and the VA made a different assessment at a later date. They are allowed to disagree with the VA a certain amount. They may have said they agree they were separate at the beginning, but the PEB made the mistake by combining them into one code and they think they should have decided on just the back being unfit. The main point being that just because the VA says 20% + 20% doesn't direct that you should have been retired. You may very well should have been, but the BCMR has to assume the 20% w/ separation was correct unfortunately and you have to walk them through what steps the Navy did wrong.

Now what I find from your later post as strange is them agreeing the nerve damage was separately unfit, but pyramiding rules say they can't give it a separate rating. This is obviously untrue, since the VA used the same pyramiding rules and decided it needed a separate rating. If I understand that correctly, that seems like something you may need to go to court to show that they are being incorrect in their use of the rule. It may well be time to sit down with a lawyer. It may be possible for a new argument to the BCMR is possible so they can make the right decision without going to court.
 

Alluvesscs11

Registered Member
#8
Well I spoke to my VA rep and he said that the VA did infact pyramid my conditions like the military but did not include neuritis in that pyramiding and instead labelled it as a whole separate issue as leg pain and that's why they gave me the extra percentages because they attributed it to my legs and not my back like the military did. Does that make sense or am I explaining it wrong? It took my VA rep a while to explain it over the phone to me this morning but that was the core of the argument was WHY the VA gave me a separate rating for it but now I have to be the one with the burden of proof for somebody else's decisions. UGH!
 

Alluvesscs11

Registered Member
#9
So I've just been googling cases similar to mine and behold I have found another case where an Army PEB rated someone an unfitting left sciatic neuritis at 10% and an unfitting degenerative disc disease at 10% for a combined 20% unfitting rating.....can I use this as evidence as well? I downloaded the pdf file of the case......This is the same exact thing I'm arguing except mine is on the right side and according to the VA I should be rated for both sides......
 

scoutCC

PEB Forum Veteran
Registered Member
#11
The PDBR is often better at separating these out and deciding on the correct rating level. I believe this is because they aren't mandated to believe the military did it right, so there is less requirement for you to perfect your argument. You will notice all the detail they look at over the different medical report and evaluations and explaining why they decided to come to their conclusion. The BCMR cases I looked over they just respond to the information presented in the way presented and come to a conclusion.

Stats for the other boards are really bad at correcting disability. Not everyone can go to the PDBR, and if you do, you cannot later appeal to the BCNR. Then there is limits on how long until you go to federal court, so getting tangled up in those appeals is a good reason to talk to a lawyer about a strategy.

I think they know its possible for them to be separate ratings, so I don't think that will help. They aren't bound by precedent, but can't be arbitrary in their decisions. If you have evidence that your case is decided in an arbitrary way compared to another, it may be something, but it would rely upon a very close aligning of facts. That said, looking at the rational the PDBR used and what evidence supported it can certainly help you decide if you had the right story presented.

Again, how to respond depends on what their exact rational was for denying. My guess is they need to know why yours are not only separate ratings, but both deserve unfit ratings. Or, if you are correct in your story, why the 20% wasn't the correct way to apply pyramiding. All you've really said is the VA rated you at 20% + 20%, and you were told at your PEB that you only got 20% because the nerve and spine disabilities were the same. Nothing about either idea says why the BCNR came to their decision. You said the BCNR decided the nerve damage was secondary, so to me, they acknowledge it exists, that it happened in service, they are fine with it being 20% disabling, they just don't think it made you unfit.

Look over the left sciatic neuritis section from the PDBR case you linked. Where the talk about the neuritis, they specifically talk about why it wasn't unfit, and hence not ratable. That example got moved up because of the right knee, not the nerve damage. In fact they changed the neuritis from originally unfit to fit.

As a note, but again, I don't feel this is what the problem is:
Pyramiding is weird. You can't be compensated twice for the same condition. However, your rating has to express the level of disability. How is your spine problem separate from your leg problem? Its not. However, just rating off the ROM doesn't express how disabling it is. So how do you rate for both the ROM problem and the leg pain? Well, the general rule is they are effecting different areas, give them separate codes. So if the BCNR is saying both are unfit, they may not be applying the rule correctly to come to your disability level. This may be due to not having the right information highlighted about how and when the VA came to their conclusion, or it may be due to them being completely wrong and you'd have to go to court to fix it.
 

scoutCC

PEB Forum Veteran
Registered Member
#13
There are a decent number of lawyers specializing in veteran issues, most should be aware of how the BCMR works. Jason Perry started this board, so those who read a bit here get a good feel for his intelligence, so he's pretty easy to recommend.
 

pebbackinjury

Registered Member
#14
Hello! i'm sorry to hear of your situation with the neurological disabilities. I've noticed this is a major problem with the PEBs and corresponding BCMR of PBDRs. This is an issue I am fighting for myself as well, and am hoping a continued effort can caused this to be rectified through the courts and the case law help other veterans. Would you be able to scan your BCMR decision, so we can see exactly what they said as a reasoning word for word?

Thank you so much in advance for your time.













The skinny of my story is this: I was medically separated with severance pay from the Navy with a 20% unfitting rating of Spondylolithesis with a pars defect, Intervertebral disc syndrome, lumbosacral neuritis, a herniated disc at L5-S1 and Spondylolysis. I have a total of 5 lumbar spine diagnosis's that were pyramided together to give me the 20% unfitting condition rating for all of them based on my ROM at the time. HOWEVER, once I was out and got my VA rating, I saw that the VA gave me 20% for my other 4 back conditions but rated the neuritis separately from my back as leg pain and also gave me 20% for it which was 10% for each of the left and right sides. When I saw this I appealed to the BCNR to correct the military's mistake of not raing it separately which would have bumped my PEB rating from 20% to 40% and I would have been medically retired instead. Just got the decision back from the BCNR and they said that the military was correct and that it is a secondary condition to the IDS and does not warrant a separate percentage but clearly the VA thinks it does?! Furthermore, this website I found (http://www.militarydisabilitymadeeasy.com/thespine.html) under Secondary Conditions states this "So, if the primary condition is spinal stenosis (In my case it's Intervertebral Disc Syndrome) which causes a secondary condition of radiculopathy down the left leg by pushing on a nerve, then the radiculopathy would be independently ratable since the amount of pain it creates significantly contributes to the inability of a service member to perform his job." Which this is exactly what happened to me. I was in too much pain to walk normal and had to use a cane because my leg hurt so bad and I was bed ridden for 4 to 6 months before I got my first injection from pain management....

So my question is: how do I fight this? Any and all relevant help would be greatly appreciated!
 

pebbackinjury

Registered Member
#15
I'd also like to state, that i am VERY interested that the PDBR LOWERED THE RATING for the neuritis, and I thought that the regulations stated they were not permitted to LOWER ratings?











Here is a copy of the file. I highlighted the areas I was pertaining to on the first two pages. Please let me know if you think it's relevant or not and if I can/should use it.
 
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