Discussion with Dr. Bash

Host: How are you doing, Dr. Bash?

Dr. Bash: I’m doing good, I’m doing good. Just a couple of weeks ago, I had a patient who went to a higher-level review. The patient had me call in on the phone call, and then the DRO (Decision Review Officer) said that it was the first time they had a doctor on the line. What was good is they asked me questions, and then they granted the case a week later. So, that DRO higher-level review process with experts on the line might be a good way to get cases resolved.

Host: That’s good. You hear a lot of good and bad about the higher-level review. You know, it takes away your avenue for submitting new evidence. In situations like that, I guess it worked out. Sometimes things like that happen. Bill’s been teaching us about the laws, right Bill? And in some of our opinions now, we’re putting some of those laws in there, so when you go to a higher-level review, then you have something to talk about with the law part. Is that right?

Bill: Yeah, and that’s why Dr. Bash and I are teamed up. It’s because of my knowledge of what the rating schedule requires, what the manual tells the employee to do, and how to determine service connection and evaluate a disability. What I do for Dr. Bash is to make sure he knows the criteria and how these things are interpreted. Then, when his opinion and review reach the decision review officer, there’s an outline of exactly what the veteran wants, why they want it, what the medical evidence is that supports it, and what the manual, regulation, and court case law say to do. So, if they want to, they can just follow Dr. Bash’s opinion, agree, and be done. But if they want to check something, look it up—well, there are the references. I help them find it, you know.

Host: That’s perfect. But remember now, my question is, the manual says that if you elect a higher-level review and then submit additional evidence, it takes it out of the higher-level review and instead assigns it as a supplemental claim. To me, that means you lose your place in line. Now, what I like about what Dr. Bash did to engage in that phone call is he provided testimony that gave the DRO additional evidence without it being kicked out. That’s a brilliant move, Dr. Bash.

Dr. Bash: Well, sometimes I follow these things, you know. He asked a couple of questions about how I wrote my opinion, whether I thought it was aggravation or direct service connection, things like that, and then he just went ahead and decided it. In this case, I had already written an opinion that was part of the record, and then it went into higher-level review with the evidence already on hand.

Bill: It’s important for you to feed me the law part because if you go there with just the medical evidence, the higher-level review isn’t as effective. They can’t review the medical parts as much as the legal parts of it. You have to have a nicely prepared Nexus letter to make that process work with teamwork.

Host: Yes, and of course, you recall what I referred to as the difference between the practice of medicine and VA’s adjudication medicine. They’re not exactly the same. Terms have different meanings to the adjudicators, like raters and decision review officers, than they do to medical professionals. And, of course, terms change over time. Medical terminology evolves, and the VA occasionally amends the rating schedule to bring the terms in line with current terminology. But there’s always a lag between what the medical world is doing and what the VA adjudicators are using in terms of medical terms.

Dr. Bash: I remember years ago when I was practicing as a representative, the rating schedule still contained the term “dementia praecox.” Now, need I tell anybody that term is no longer used? That was a very old term for schizophrenia. Sometimes a rater might read something and take a lay interpretation of what those words mean and fail to comprehend what the medical terminology is and what its implications are for the case.

Bill: Decision review officers and raters get some rudimentary courses on medical terminologies and anatomical systems, but they’re not medically trained. VA doesn’t emphasize that. Instead, they teach raters basic courses about terminologies and functionality but instruct them to defer to the medical evidence, not their own understanding.

Host: So, Bill, we have a new term that just came out: “somatic pain syndrome.” A rater told me about it. Then we have that law that talks about pain from an unknown cause. Are those two things talking about the same idea, or are they different?

Bill: Back in the day, if a report said a condition was psychosomatic, the term used to be “malingering.” They didn’t understand it was an acquired mental disorder. I actually solicited the help of the Department of Veterans Affairs chief of Psychological Services to intervene in a case. The regional office had sent a case for his review, and he had opined. They denied based on his opinion. When the case got to the Board of Veterans’ Appeals, where I was representing the appeal, I looked at it and thought they didn’t understand what he said. So, I called him up and asked him for an amendment. Fortunately, he was gracious enough to do it, so they could understand. The terminology he used meant it was a mental disorder that began during active duty, not before. The case was granted by the Board of Veterans’ Appeals. This is just an example of the importance of terminology.

Understanding Radiculopathy

Host: Now, let’s talk about radiculopathy. It’s a diagnosis of the neck, not the shoulder. When we say radiculopathy, think of the spinal column as a stack of checkers, which are your vertebrae, with pads in between, which are your discs. These discs can start having problems due to aging or trauma. The space between the vertebrae narrows, compressing the nerves or nerve roots, which produces neurological symptoms in that nerve distribution. These are called radiculopathies because they are disabilities of the radicular nerves coming out of the neck and the back.

Bill: When these manifestations start, it indicates a worsening of the spine condition. People often phrase their claim as “I want service connection for radiculopathy.” The VA is supposed to understand that this means a worsening of the spine. If you have a 20% spine disorder and now have symptoms of radiculopathy, that is a worsening of the spine. The effective date for an increase in disability is the day the radiculopathy symptoms presented if you filed your claim within one year of that day.

Host: So, you need to characterize your claim as an increase for your neck now to include radiculopathy, specifying when the symptoms started. This is why it’s important to file a claim for an increase in the spine when you have radiculopathy symptoms.

Bill: The regulations and the manual (M21) govern this process. There shouldn’t be a problem if a well-trained rater reviews the case.

Additional Questions and Clarifications

Host: Jay had a question about his shoulder and carpal tunnel as secondary to weakness. Keep going, Bill, we’ll pass through that process.

Bill: Once we’ve established radiculopathy is compensable, we need to evaluate it. The rating schedule, specifically 38 CFR 4.124a, describes the evaluation of neurological symptoms. The DBQ for peripheral nerves has check marks for the examiner to define which nerve is involved and to evaluate the impairment as mild, moderate, or severe. The manual provides definitions for these levels of impairment.

Host: Got a quick question there, Bill. If the VA connected for left median neuropathy and left phrenic based on the same neck injury, and the shoulder muscles become weakened with hardly any muscle left, would that be a secondary condition?

Bill: Yes, it could be considered a secondary condition. If the muscles and ligaments in the shoulder give away because there’s nothing to attach to due to muscle atrophy, it could be secondary to the radiculopathy.