Orthopedic Rating Principles

1
Orthopedic Rating Principles
TDVA Annual Training
October 2013
2
TDVA Annual Training

• Training will focus on the evaluations of knee
  disabilities (including replacements) and spine
  disabilities.

3
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.

4
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.

5
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.

6
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.

7
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.

8
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

9
Major Joints

• Shoulder
• Elbow
• Wrist
• Hip
• Knee
• Ankle

10
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)

11
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)

12
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.

13
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.

14
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.

15
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

16
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.

17
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.

18
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)

19
Separate Evaluations for Arthritisof 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.

20
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)

21
Separate Evaluationsfor 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)

22
Separate Evaluationsfor 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.

23
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
• DCs 5051 5056
• SMC may be assigned during the period of total
  evaluation if the permanent use of crutches are
  required

24
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.
• Minimum rating
  30

25
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.

26
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.

27
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

28
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

29
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

30
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.
  

31
Ankylosis and Limitation of Motion of the Spine

• DCs 5235 5243 are used for ankylosis or
  limitation of motion of the spine
• Normal Ranges of Motion of TL Spine
• Forward Flexion 0 to 90 degrees
• Extension 0 to 30 degrees
• Left Lateral Flexion 0 to 30 degrees
• Right Lateral Flexion 0 to 30 degrees
• Left Lateral Rotation 0 to 30 degrees
• Right Lateral Rotation 0 to 30 degrees

32
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.

33
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.

34
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

35
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.

36
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.

37
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

38
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

39
VAS Obligation

• The VA will
• Retrieve relevant records from federal facilities
• Provide medical examinations/opinions
• Keep Veteran informed

40
Types of Claims For FDC Submission
41
How To Avoid Exclusion From The FDC
Program
42
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

43
FDC UPDATE!

• On August 6, 2012, the President signed a
  comprehensive legislative package, the Honoring
  Americas 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.

44
CATEGORIZED EXCLUSIONS FOR TDVA FY 2013
TO DATE
Additional Evidence Claimant declined FDC Processing Evidence received after FDC CEST Needs Non-Federal evidence development VBA Administrative Reason
2 12 196 221 471
45
Average Days To CompleteFDC Claims
FDC At Completion Not FDC At Completion
3558 7849
Average Days To Complete Average Days To Complete
112.4 184.7
46
Comparison
47
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.
48
Thank You!!

• Questions????
• THE END!