Here is a list of VA educational bulletins

I will try to do a new bulletin update every month, so please check back soon for new information!

If you have a burning desire for a specific type of bulletin please email me a request to drbash@doctor.com.

C & P Exams
Amyotropic Lateral Sclerosis (ALS)
Secondary (hidden) conditions
Sleep Apnea
Anxiety and TBI
Social Security vs. VA
Prostate cancer reduction-ratings
Aggravation
IHD and CAD and PAD and DMII
BVA Remanded Medical Opinions
Diabetes Mellitus = DMII
How to speed up claims processing
Permanent and Total
Special Monthly Compensation (SMC)
Bladder Incontinence
Breast Cancer
Female Vaginal Bleeding
Fly in Expert witness at Hearings
Pulmonary disease TB (tuberculosis) vs. COPD (chronic obstructive pulmonary disease)
Infectious Diseases
Primary Care & Spine
Special Monthly Compensation (SMC)
VA 300% Code SMC

C & P Exams

The C & P exam (Claims and Pension exams= C & P exam) is one of the most important steps in the VA medical code process as all these claims all are medical claims and thus the CP exam is the VAs way to get more medical data—so never miss the exam or VA will simply say that the patient missed the exam and deny the case.

Prior to the C & P exam best to Do the following;

Do get new lay statements for the examiner.
Do take in any medical devices that you use wheelchair, crutches, braces, sole inserts…
Do take in soiled undergarments if you have urine and stool leakage (zip-lock bag).
Do take a witness and ask for new testing that you think you need to document the disabilities.
Do find out name and credentials of the examiner. (sometimes nurses do these exams)
Do note length of time exam takes.

Do prepare a new medical opinion prior to the exam to give to the examiner. (Independent Veteran Medical Opinion = IMO)/ Veteran Medical Nexus Opinion (VMNO)

Do ask examiner for a copy of his/her report ASAP after the exam.

Do nots:

Do not take pain meds prior to the exam as these meds often mask your range of motion.
Do not be stoic- tell examiner how it is even on bad days.
Do not let VA decide your claim until you have seen the VA examiners or QTC report. Please write to the VA and state that you want them to hold the file open until you have had a chance to see the exam and review it with your physician, prior to any decision.

Recommendation: Get our own IME/IMO prior to the exam as this is the best way that you can fully describe your medical condition (plus any secondary conditions) to the VA examiner because your doctor’s IME/IMO should be in medical language that your VA examiner will understand very clearly.

Amyotropic Lateral Sclerosis (ALS)

ALS – Lou Gehrig’s disease

Although the exact cause of ALS is not known many associations with certain conditions have been supported in the literature.

For example, according to the ALS foundation

“…The Institute of Medicine (IOM) has issued a new report (Amyotrophic Lateral Sclerosis in Veterans: Review of the Scientific Literature,” are available from the National Academies Press; tel. 202-334-3313 or 1-800-624-6242) from experts supporting an association between military service and later development of ALS. Published reports reviewed by the experts show up to a two fold increased risk of developing amyotrophic lateral sclerosis (ALS, also known as Lou Gehrig’s disease) among veterans deployed in the Persian Gulf War of 1991. Veterans from other eras, dating from World War II to post Vietnam, also appear to be at greater risk of developing ALS….

AND … Former Secretary Anthony Principi’s policy to aid Gulf War veterans with ALS. Under that policy, ALS is considered a service-connected disease for those veterans who served in the Gulf War between August 2, 1990 and July 31, 1991….

AND…However, ALS is not presumed to be a service-connected disease for the thousands of other veterans diagnosed with ALS even though research has demonstrated elevated rates of ALS in all veterans, regardless of whether they served in the 1991 Gulf War….”

These patient’s often fall into the medical diagnostic codes/categories of ratings that are similar to spinal cord injuries (SCI) and Multiple Sclerosis (MS) and thus the Physician doing a veteran medial opinion should be familiar with the VA rating schedule of illnesses.

A real patient’s medical exam and opinion sample of some of the medical opinion identified issues of ALS that could occur is as follows:

Upper extremities

3-4/5 strength except 3+ / left interosseii and apponens (see new 3-14-09 physical therapy note which documents the same)

Decreased sharp dull sensation both hands and forearms.

Atrophy hypothenal muscle left hand.

Decreased sharp dull sensation both hands.

(weakness also noted by Dr. T… in his neurologic exam of Sept 2007)

Pain on motion and palpation of his left wrist. Symptoms are consistent with carpal tunnel and this is likely secondary to her overuse of this joint due to his ALS.

Legs 1-3/5 strength unable to stand unaided and uses an electric scooter.

½ reflexes lower extremities—(see new 3-14-09 physical therapy note which documents the same).

Diapers with stool and he wet his diapers during travel to my exam

Pt descries essentially wetting diapers continuously day and night with voiding q 1-2 hours all of which is consistent with her neurogenic bladder.

Diaper examination revealed firm stool consistent with neurogenic bowel. She has constant constipation with intermittent diarrhea consistent with neurogenic bowel stool

Lower extremities

4/5 strength left leg

left foot drop and he has increased shoe toe wear secondary to dragging of his toes.

decrease performance in rapid alternating movements left leg.

Decreased sensory (pinprick light touch) left lower extremity

4/2 reflexes left lower extremity.

Not able to heel or toe walk

Not able to run

Rhomberg positive

Incontinent of urine …urgency and hesitancy and frequency

Neurogenic bladder–bowel. The patient is having persistent problems with incontinence of both urine and stool since he had his ALS diagnosis. His records do not contain another more likely cause for his urine/stool incontinence (leaks both every night …soils sheets and bed clothes….mostly leaks urine during the day 3-4 times) and he should therefore be assigned a service connected MDC (medical diagnosis code) for these problems because ALS is known to cause incontinence of both the GU and GI systems.

Gait, coordination, and balance problems. The patient is having persistent problems with gait, coordination, and balance problems ever since his ALS diagnosis. For example, his rhomberg test is positive and he cannot walk a night without a light. He occasionally falls do to lose of balance. He has a slow broad base gait. His records do not contain another more likely cause for his balance/gait problems and he should therefore be assigned a service connected MDC for these problems because ALS is known to cause gait/balance problems.

Erectile Dysfunction (ED). The patient is having persistent problems with penile erections and ejaculation ever since his AS diagnosis. His records do not contain another more likely cause for his ED and he should therefore be assigned a service connected MDC for these problems because ALS is known to cause ED problems.

Autonomic dysfunctions; Pt. has cold and hot intolerance which is consistent with atonomic dysfunction secondary to his ALS diagnosis. For example, during my exam he was cold to touch.

Need for aid and attendance The patient is having persistent problems with hygiene and home care. His wife does helps with his activities of daily living and he could not live by himself without assistance. He is unsafe in cooking and cleaning. His records do not contain another more likely cause for his need for aid and attendance and he should be assigned a service connected MDC for A and A because ALS is known to cause a need for A and A.

Summary:

Since the literature shows associations between military service and ALS (according to the Amyotrophic Lateral Sclerosis in Veterans: Review of the Scientific Literature study) this disease can only be service connected to a veteran’s service with the use of a expert veteran medical opinion (depending of course on each veteran’s specific set of medical circumstances) because the presumptive time window period for automatic service connection is very narrow.

Recommendation:

Since ALS is a complex diagnosis and service connection is not presumptive for most veterans it is essential to obtain a high quality medical opinion (Independent Veteran Medical Opinion = IMO) from an expert to establish the diagnosis. Without a veteran medical opinion it is likely that VA will deny all claims that do not fall into the presumptive period as this disease is complex and presents with many subtle signs and symptoms and since the VA raters are not physicians they will not be able to connect the diagnostic dots and make a diagnosis. Once your ALS has been diagnosed then a veteran medical opinion is also needed to identify all primary/secondary problems as noted in the example above so that the correct medical diagnostic codes can be assigned with the correct effective dates (Retro-active date).
Thus is a complex disease subject and most raters are not experienced enough to correctly assign all of the secondary codes and the case will linger in the VA que of cases. Thus if you have been waiting an excessive amount of time send your congressman a concise medical opinion and ask them to ask the VA to decide the claim in two weeks (see abash bulletin on how to speed up the case).

Secondary (hidden) conditions

News Alert: Most veterans, PAs, NPs, NSOs and lawyers miss very important secondary conditions of their patient’s illnesses and claims.

Most diseases have both short long-term secondary consequences that are often not obvious and only are found by additional testing. All of these conditions are ratable as secondary to the primary condition for the purpose of additional VA benefits but even more importantly these secondary conditions should be treated as they can often be silently life threatening. Some examples of Veteran medical nexus opinions are as follows:

Medications: All medications have side effects and these side effects are all secondary conditions for VA rating purposes.

Toxic exposure: All toxins like medications have secondarily connections, which are ratable.

Gait abnormality: The same and opposite side of a chronically injured lower extremity experiences increased wear and tear (W and T) and this W and T is often a ratable secondary condition.

Diabetes: This condition causes secondary damage to many body systems such that the eyes, brain, heart, kidney, skin and bone and this damage is a secondary condition secondary to long standing diabetes.

Renal failure: Causes secondary damage to the bone and heart

The list goes on and on.

SUGGESTION: All veteran patients should be evaluated by a well-trained and experienced Physician (who is familiar with the numerous secondary conditions- Independent Veteran Medical Opinion IMO/ Veteran medical nexus opinion) so that the patient can be both treated and rated for any difficult to diagnose secondary conditions.

Sleep Apnea

This is common condition as we age, in fact, anybody over 50 should be tested if they have any sleep complaints, snoring or a spouse that says they stop breathing at night. The disease is categorized into two basic groups as either central or obstructive. Additionally, a mixed version also occurs. Some lung disease can also contribute to sleep apnea thus this disease has many multifactorial causes.

The Central version often is due to central nervous systems problems (stroke, functional brain disease, cervical spine disease).

The Obstructive type occurs when the nose/mouth, para-nasal sinuses, pharynx or lungs obstructs the flow air into the lungs, which can be associated with snoring.

TESTING:

It is important to get a sleep study both with and without a CPAP trial. (A two night study is better than a split-night study)
Nasal x-ray and/or CT scan might be useful along with a physical exam

Many Veterans have sleep apnea secondary to cervical spine problems and/or diabetes, which occur often in VA patients. Sleep apnea can also cause its own set of secondary conditions such as weight gain/diabetes, cardiac and stroke diseases.

As stated in the VA watch dog write-up VA will not grant sleep apnea on lay statements alone it requires a well organized medical opinion along with testing. This rating is currently under review with the VA currently and thus the codes might become more restrictive.

SUGGESTION:

A well-trained Physician who is familiar with the primary and secondary aspects of sleep apnea to include sleep testing should evaluate all sleepy veterans. Then a comprehensive report Independent Veteran Medical Opinion =IMO/Veteran medical nexus opinion) should be obtained so that VA service related coding can be accomplished.
All veterans should apply for a claim for sleep apnea ASAP as new VA codes are likely forthcoming

Anxiety and TBI

Update: Recent Army STARRS (Army Study To Assess Risk and Resilience in Service members) research data shows a positive relationship between psychiatric illnesses and TBI (traumatic brain injury) as follows:

Odds ratio (a score above 1 supports a positive relationship)

Panic 1.5

Depression 1.6

Anxiety 1.7

Social phobia 1.6

PTSD 1.8

Obsessive/compulsive 1.5

Substance abuse 1.7

Recommendation: All veterans being discharged with the above psychiatric illnesses should also be fully evaluated for TBI (Independent Veteran Medical Opinion =IMO/Veteran medical nexus opinion) as the above conditions could simple be secondary complications from service time TBI.

Social Security vs. VA

UPDATE: Often veteran patient get confused about the benefits of Social Security (SS) and VA disability systems.

These two programs are independent of each other and thus veterans are eligible for both.

They both require extensive medical records and supporting medical opinion.

The VA benefits are dependent on service connected primary or secondary disabilities whereby the SS system is based simply on the medical conditions and service connection is not a requirement.

I write opinions for both systems and I have been a expert witness for both types of Judges and adjudicators (raters).

Each system of benefits influences the others decisions but neither the VA nor the SS systems by the others awards.

Recommendation: Each patient should obtain a well-documented medical opinion after an exam to submit to either SS or VA before the SS or VA exams – especially if the patient is at the appeal level.

(Without a good medical opinion- Independent Veteran Medical Opinion (IMO/ Veteran Medical Nexus Opinion (VMNO) the patient is often left using the opinion from VA employed or SS employed physicians and often these opinions are somewhat biased in favor of the requesting organization as the requested medical questions are often narrowly prescribed thus the full extent of the disabilities is not well developed or documented in the medical opinion.)

Prostate cancer reduction-ratings

Update: Prostate cancer reduction-ratings (medical diagnostic codes) are confusing because often the patient has a 100% disease cancer code for 6 months then the code is reduced and the reasoning is often unclear to the patient. The VA goes through a two-step time period process that includes a first 60 days for the proposal to reduce and then another 60 days after the reduction decision is made (whole process takes 120 or more days). The BVA (Board of Veterans Appeals) has stated the following in recent decisions concerning the process:

“…in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000).

AND

“…cessation of surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months…. following the cessation of surgical, X-ray, antineoplastic chemotherapy, or another therapeutic procedure, if no local recurrence or metastasis…”

So at the end of 6 months, the VA will re-evaluate the medical diagnostic codes and potentially propose a 60 day time period of reduction based on an Exam, which will look at the residuals of:

local recurrence or metastasis
voiding dysfunction= of voiding dysfunction are rated as either urine leakage, frequency, or obstructed voiding, post-surgical urinary diversion, urinary incontinence, stress incontinence, appliance or the wearing of absorbent materials
renal dysfunction= constant albuminuria, edema; or, definite decrease in kidney function, hypertension, blood urea nitrogen (BUN), creatinine, generalized poor health-characterized by lethargy, weakness, anorexia, weight loss, limitation of exertion, dialysis, sedentary activity

During the first 60 day proposal re-evaluation period the VA will often simply look at the patient’s post treatment PSA (prostate specific antigen) which is usually low – around the <.1 level- thus the VA will sometimes incorrectly reduce the code to 10% if the rest of the limited residuals listed above are normal. Patient’s may or may not have an enlarged prostate gland following treatments, with a simple enlarged gland, without biopsy proof of residual or recurrent tumor, the VA will still reduce the code to 10% or even 0%.

It this approach, the VA incorrectly lowers the medical diagnostic code because other secondary conditions are not evaluated. For example, a large prostate gland could harbor residual cancer therefore a biopsy might be needed. The basic serum BUN and creatinine levels can under-estimate the patient’s residual real renal dysfunction thus a 24-hour urine and creatinine clearance should be done along with GFR (glomerular filtration rate). Other secondary conditions, such as urine incontinence should be evaluated with urodynamic studies and bowel incontinence due to surgery, radiation or chemotherapy should be evaluated with a careful history and defecata-gram if needed. Secondary chemotherapy effects should be evaluated in organs such as the brain, liver and heart. Finally, often patients cannot return to work due to secondary conditions (urine/stool leakage and appliance wear) thus they should be considered for TDIU (total disability individual unemployability or IU)

Recommendation:

During the 60-120 day re-evaluated period the patient should be fully evaluated for all residuals and secondary conditions and TDIU by a physician who both understands the complicated VA medical diagnostic codes and who does additional testing to look for the appropriate secondary conditions. (n.b. Physician extenders such as nurse practitioners and physician assistants do not routinely have the depth of knowledge to adequately evaluate all secondary conditions because their advanced training is limited to the organ system that they work with on a daily basis). During each 60 day step the patient is able to submit new medical information (Independent Veteran Medical Opinion=IMO and Veteran Medical Nexus Opinion (VMNO) which is advantageous to the patient as the VA then will have the most medical information possible to take a fully informed decision- this can even extend the 120 days depending on how the processes the paperwork.

Ideally, in a well-developed post treatment evaluation the patient’s primary cancer code will decrease (due to treatment effects) but the patient’s medical codes for residuals and secondary conditions/TDIU will increase. In my experience, patients usually will in the final analysis will have a significant post treatment set of medical diagnostic codes and do not have any reduction in their combined code but this requires a very pro-active effort on the patient’s part because all post treatment tests and medical reports/opinions/evaluations need to submitted to the VA prior to the 60 day window of re-evaluation. Some patient’s have requested a re-evaluation hearing and for the hearing opt for an expert medical witness to be present during the hearing to present the pertinent medical data as these secondary conditions can be medically intricate.

Aggravation

Update: Aggravation of medical conditions is a complex concept because the physician needs to know the natural progression of disease without aggravation. A patient’s non-aggravated natural progression of any disease depends on the stresses that the patient would normally place on a disease process and to some extent the age and genetics of the patient.

A classic example is a patient who injures their lumbar spine in service and has service connection or pending service connection for their lumbar spine and then they get into an auto accident or have a major fall. Many times, these patients have worsening symptoms following these major types of accidents and usually the VA’s reflexive response is to say that the out of service accident caused the patients worsening of symptoms. In order to sort this out the physician needs to carefully review the pre-accident medical records and determine the worsening “glide slope” of the patient’s pre-accident spine degenerative disease. Often imaging studies are useful here because following most accidents the patient will have a new set of images done and these can be compared to prior images to assess worsening. This requires a skilled radiologist for accurate assessments. Once the glide slope is determined than the physician needs to see if the accident made the condition worse and access if the patient had not had his/her service injure whether or not the post accident condition would have been as severe. In other words, if not for the service time injury would this patient now have as severe a spine injury. If the patient had a pending service condition then the physician must also assess whether the accident was the sole cause of the patients post accident condition or if the patient had pre-accident residuals from his service injuries that would be related to service. The above processes are very complicated.

To further add complexity some patient’s have several accidents or even have surgeries along their life course thus each pre and post set of medical records needs to be analyzed as above. This sort of analysis and report production can take several days to a week assuming the full medical records and images are available. Often the VA does not have all the outside medical records pre-and post accident and many VA CP physicians simple do not have the time to do this analysis in the routine CP exam and thus the patient’s aggravation would not be fully documented. Of course, a physician with many years of experience is better able to determine the “glide slope “ of the normal aging process as younger physicians simply have not seen the natural progression of many diseases because their experience is often limited to the acute manifestations of disease and not the longitudinal care of patents from a young age to elderly. Furthermore, each disease process has a difference aging process.

Pre-existing to service conditions require a similar approach in that all the pre-service medical records need to be gathered and analyses in relationship to any disease processes that occur in service then an assessment of abnormal disease progression needs to be made. Again many years experience with medicine is useful to determine aberrant progression, which would be aggravation. Another key concept is that most patients enter service “fit for duty” thus many pre-existing conditions often involve a patient’s self description of some process that usually had not been diagnosed prior to service or was not identified on entry and/or was not treated prior to service by a physician. These conditions are healed fully prior to entry and do not meet the requirement s of pre-existing conditions. These processes however can cause a complex VA administrative legal response because the reflexive response here is for the VA to assign all new conditions that the patient might acquire in service to any “pre-existing” historically healed conditions.

Prior to the aggravation CP exam best to Do the following;

Do get new lay statements for the examiner.
Do gather all old pre-service, service and post service medical records and x-rays-imaging studies-laboratory reports.
Do prepare a new longitudinal medical opinion –Veteran Independent Medical Opinion/Exam- IMO/IME-Veteran Medical Nexus Opinion (VMNO) prior to the exam to give to the examiner so that a review of your entry medical records can be done prior to the VA decision.
Do ask examiner for a copy of his/her report ASAP after the exam.

Do not:

Do not simply accept a non-aggravation decision by the VA as these decisions require a through analysis by a physician and until you have had this analysis your aggravation conditions may not be well documented.

Recommendation: Get our own IME/IMO prior to the exam as this is the best way that you can fully describe your medical condition (plus any aggravated conditions) to the VA examiner because your doctor’s IME/IMO should be based on a longitudinal review of your records and will be in medical language that your VA examiner will understand very clearly.

IHD and CAD and PAD and DMII

Veteran Independent Medical Opinion/Exam- IMO/IME

Veteran Medical Nexus Opinion (VMNO)

These terms, besides looking like alphabet soup, are all inter-related. The veteran patient can get a rating for IHD, which is the disability that stems from CAD. CAD is the anatomic narrowing of the coronary arteries but until it reaches a major narrowing the effect on the heart’s blood flow is minimal. But once the CAD sufficiently narrows the coronary arteries the heart looses significant blood flow and the tissue become ischemic and dysfunctional. Once the arteries are narrow they usually stay narrow and heart muscle can die from low blood flow. Ischemic tissue can die in an irreversible and permanent way, thus early treatment is important.

Veterans exposed to Agent Orange can be granted benefits for their IHD, which is secondary to the AO with well-reasoned medical opinions. Often these patients will also present with diabetes mellitus type II, which is known to also be associated with AO exposure.

DM II is also known to cause vessel scarring and CAD and thus secondary IHD. Since DMII is a well known systemic disease is also causes secondary PAD.

Vascular PAD primarily due to Agent Orange likely does occur but AO is not recognized by the VA as a presumptive cause of PAD. The literature documents many articles that have estimated risks greater than 1 for “…All circulatory, Circulatory and cerebrovascular disease…”. Additionally, animal studies and in vitro (Lab) studies document increased oxidative stress, inflammatory markers, structural remodeling, lipid mobilization, Increased LDLs and macrophage lipid accumulation in vessels exposed to AO. These findings are consistent with my experience in that patients with CAD also have PAD-likely due to the same contributing factors as is supported by the literature.

Recommendation:

Each PAD case needs a special careful review in a veteran medical opinion to sort out the variables that could contribute to the PAD such as AO and diabetes, but a well-reasoned IMO should be acceptable to the VA as evidence of a causal link, if the medical data supports that opinion.

BVA Remanded Medical Opinions

Update: The BVA is increasingly remanding cases instead of directly granting benefits in order to get further very detailed VA examinations that might contain up to 10 to 15 new examinations. The following is one such case (whereby the BVA had 2 positive opinions {Drs. Bash and Sheridan} and one negative VA CP opinion but instead of determining equipoise of the opinions and granting the case) decided to ask for another examination. In spite of the fact that over 70% of BVA decisions are changed at the VA court level, veterans will usually have to comply with the following example of BVA remand:

The BVA stated the following;

The May 2010 written statement from Dr. Bash conveys that “it is my opinion that his lower extremity knee and hip and lumbar spine advanced for age degenerative disease is due to his service-connected abnormal gait/foot disease.” The October 2010 written statement from Dr. Sheridan states the Veteran “has a history of pes planus and surgery on both great toes, twice on the right, and has altered gait mechanics which have led to the formation of underlying degenerative disc disease and bulging discs at L4-5 and L5-S1.” The report of the March 2011 VA joints examination states that “the Veteran’s currently diagnosed right hip and low back condition are not caused by or a result of his service-connected bilateral pes planus with plantar fasciitis.”

VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the apparently conflicting medical opinions, the Board finds that further VA evaluation is necessary in resolving the issues raised by the instant appeal.

Accordingly, the case is REMANDED for the following action:

Then schedule the Veteran for a VA orthopedic examination for compensation purposes in order to assist in determining the current nature and etiology of his lumbosacral spine disabilities. If possible, the examination should be conducted before a physician who has not previously examined the Veteran. All indicated tests and studies should be accomplished and the findings then reported in detail.
The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or greater) that any identified lumbosacral spine disorder had its onset during active service; otherwise originated during active service; and/or is related to and/or increased in severity beyond its natural progression due to the Veteran’s service-connected disabilities.
The examiner should provide a rationale for all opinions and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.
The physician must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as deemed indicated. He/She must discuss specifically the May 2010, January 2012, and August 2012 medical opinions from C.N. Bash, M.D. and comment on the medical literature cited in those opinions (expressing agreement or disagreement with those opinions, and explain in full the rationale for such agreement/disagreement).
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This remand to the RO (Regional Office) contained specific language to address my opinion, as is highlighted in the above. The BVA stated that my opinions, [rationale] and literature must be specifically addressed. Most physicians do not include literature references but in any RO/BVA remand of my opinions the VA has a duty to evaluate my optionally added literature.

Recommendations:

Do:

Add new medical information and medical opinions to any BVA remand as per paragraph 5 above.
Attend any BVA remanded medical examination/s.
Refer my BASH Bulletin on CP examinations.
Get and review all copies a copy of all CP examination written reports.
Get a second medical opinion (Independent Veteran Medical Opinion IMO) and analysis for any CP examinations and submit this to the VA prior to re-adjudication (rating) of the issues.
Consider obtaining two additional medical opinions to clarify any new medical information because as in the above example the BVA is readily willing to add new additional VA medical opinions to files, which already contain numerous medical opinions (3 in the above case) and thus the veteran should also consider adding additional opinions to referee the enlarging maze of medical data. (AKA arms race)

Diabetes Mellitus = DMII

Update: Diabetes can be a primary process of secondary to many conditions. One frequent VA grant for service connection benefits occurs when diabetes is secondary to Agent Orange but there are many other pathways for service connection of diabetes. It is important to know that diabetes causes secondary disease complications in many organ systems either solo or in combinations with other disease processes -all of which should be secondarily service connected. For example, here is a short list

Heart: Diabetic Cardiomyopathy

Kidney: Diabetic Nephropathy

Skin: Diabetic Peripheral neuropathy

Brain: Diabetic Ischemic encephalopathy-Alzheimer’s disease-Stroke

Eye: Diabetic retinopathy

Pancreas: Pancreatitis secondary to medications such as DPP-4 inhibitors (Glavus and Onglyza) and incretin mimetics (Victoza and Bydureon)

Bone: Avascular necrosis

Ears: Tinnitus and Hearing loss

Muscle: Loss and weakness

Sexual: ED

Stomach: gastroparesis

Electrolytes: Hyperosmolar, ketoacidosis, hyper-hypo-glycemia

Recommendations:

Once DM II has been service connected the patient’s records should be reviewed and additional testing should be done to either rule in or out the above secondary conditions.

Once the conditions have been diagnosed and documented then a IMO/IME/medical opinion should be performed to provide a nexus to service for all primary and secondary conditions.

How to speed up claims processing

Update: An an age-old problem for the VA is how to process claims more quickly especially in light of the large influx of claims post War and when new presumptive medical problems are added to the list. Post war claims are always high due to the traumas of combat and when new issues are made presumptive the entire VA claim population may re-apply. The following is an example of a way to improve the claims process as is documented in his VA decision.

Claim has been pending for years:

15 July 2014 Dr. Bash evaluation – Independent Veteran Medical Opinion (IMO)

20 July 2014 patient attaches Dr. Bash opinion to congressman.

25 July 2014 congressman writes a letter to the VA asking for a response on the pending issues.

1 Aug 2014 VA does the following DBQs:

– Spine.

– PTSD

– Stoke

– Hypertension

– Bowel

– Then in Oct they redo the following DBQ issues

– PSTD

– Stroke

– Then the claim was rated Nov 2014.

Recommendation: If you have good medical opinions (Independent Veteran Medical Opinion = IMO) and have been waiting an excessive amount of time send your congressman a concise medical opinion and ask them to ask the VA to decide the claim in two weeks as the record is fully developed.

Permanent and Total

The high percentage medical diagnostic rating code levels to include Permanent and Total (PT) are expensive to fund by the VA and are both very complex medically and administratively and thus often involve several appeal stages. Since the VA only grants 30-50% of the correct rating on each iteration (not considering SMC codes) a typical example of the step wise iterative grant of ratings is as follows:

INITIAL COMBINED CODE ON APPEAL (as many as three appeals)

10% 20-30% rating

30% 50-60%

60% 80-90%

90% 100%

100% TEMPORARY 100% PT

As you can see from above the VA usually grants the 100% at the temporary level and not at the PT level as part this is part of their culture of a minimalist approach to claim medical diagnostic codes rates. (n.b. I have only seen one time a claim go from an initial claim to a SMC/R-1 level of grant in one iteration.) Furthermore, as the rating become assigned to the highest code percentages (100%+ and SMC) the regional offices will push these claims to the BVA (Board of veterans affairs) to decide. The BVA has a staff of about 100 Admin law judges with support staff of about 2-300 more lawyers. Based on my 500 cases at the BVA it is my opinion that at this level the decisions are well thought out but even these decisions are only validated at 30-40% level by the supervisory VA court. The above process could take 5 years or more for an initial valid PT case to make its way from the RO (regional office) and be decided at the BVA. Thus any new lawyer, physician or advocate expert needs about 15 years of experience to fully understand the ins and outs of this RO to BVA decision process because of the 5 year time lag in decisions. Any new advocate needs many BVA iterations of different types of PT claim decisions to have an expert knowledge of the BVA. A PT claim’s 5 years could be consumed as follows depending on RO:

Iteration Time in route

Initial Claim process 6-12 months at RO

10% to 50% appeals 12-18 month at RO

50% to 100%-temporary 12-18 months at RO

100% to PT hearing 12-18 months for BVA hearing appointment

100% PT decision 6-12 months at BVA

** I expect with the 2014 secretary McDonald’s reforms, that many of the above times will be cut by 50%.

In the final analysis, the PT decision hinges on the medical analysis of the medical condition in an independent veteran medical opinion. Each non –VA medical code, of which there are about 65,000 ICD-9 codes, is boiled down to about 2000+ codes in the VA system. Each code has a different natural history and a different permanent end stage disease status. Physicians who write veteran medical opinions should be able to categorize all disease states into the VA’s directory of only 2000+ codes, which is not a trivial process as the VA codes all have different combinable aspects, which of course excludes pyramiding of codes.

In my experience, most medical processes that have been present for 24 months with medical treatment and no improvement are all permanent processes and thus should be assigned the PT code. Thus, most veterans who migrate thru the above 5-year process with unchanging medical conditions meet my 2 year rule and should be assigned PT, but VA will assign many of these a temporary code with the requirement for a re-examination in 24-36 months – as that is their philosophy.

The PT code is an important addition to the 100% code as is eliminates the need for a future examination and allows veterans extra benefits such as elimination of many state/country property taxes and child/spouse benefits. (It should be remembered that all ratings even the PT and rates are not administratively unchanged until they have been in place for 20 years.)

Recommendation:

1.All veterans with large PT medical diagnostic combined codes should seek advocates that have 15 plus years advocating at the BVA level so that they know the BVA review process as moist substantial claims eventually make their way to the BVA.

2.Like wise all veterans should seek physicians who have 15+ years of independent veteran medical opinions at the BVA level as the VA medical diagnostic code process is complex with multiple layers of appeals.

Additionally, all physicians who write Veteran Medical Opinions [Independent Veteran Medical Opinion (IMO)-Veteran Medical Nexus Opinion (VMNO)] should be able to categorize Non –VA PT type codes into the VA’s directory of only 2000+ codes. This is not a trivial process, as the VA codes all have different a complex combinable aspects, which pf course excludes pyramiding of codes.

3.Low levels of training and experience by either physicians or advocates hurts a veterans chances of getting a correct PT medical diagnostic code as any mistake made at the lower levels of appeals are magnified under further appeal reviews and amount of needed extra time, medical testing, medical opinions and associated paperwork to try and correct early errors is substantial and a correction is not always possible.

Special Monthly Compensation (SMC)

SMC (special monthly compensation) involves the most complex constellations of medical codes (other than the simple SMC code for loss of use of creative organ- coded as a K award) that are allowed within the VA rating system and I have been told by a long term VA employee that only a handful of VA raters really understand all the aspects of SMC. The largest VA retro-active claim award involved SMC codes for post polio that had been pending for several decades and the retro award was well over 1 million dollars due to high quality independent veterans medical opinions. In fact, this award never would have been awarded without a series of medical opinions and often now the VA requires two corroborative medical opinions prior to awarding complex combined awards. The medical opinions [Independent Veteran Medical Opinion (IMO)-Veteran Medical Nexus Opinion (VMNO)} are essential because the VA raters and judges are not physicians and will not award SMC unless the SMC medical issues are spelled out in a Dick and Jane manner as they relate to the VA codes because as stated above most VA employees do not understand the SMC codes. In essence, the veteran medical opinion-writing physician needs to know more about the SMC codes than the raters in his/her Independent Veteran Medical Opinion (IMO)

Veteran Medical Nexus Opinion (VMNO).

The medical aspects of SMC codes often involve the neurologic system and require independent veteran medical opinions, which accurately assign the patient’s illnesses to the correct VA medical codes. A inaccurate assignment of codes can cause the patient to not be eligible for SMC. SCM is designed to allow for special funding for the sickest veterans because they have special medical needs.

SMC is a code that allows for benefits above the 100% level and these codes allow for about a 300% increased in the 100% rate of monetary benefits.

( ***please see this site; http://www.benefits.va.gov/compensation/resources_comp02.asp)

A good example of a typical SMC patient would be a spinal cord injury as follows:

Codes need to encompass the following

Loss of use of both upper extremities

Loss of use of both lower extremities

Loss of bladder function- complete

Loss of bowel function- complete

Loss of creative organ

Need for aid and attendance such as help with daily hygiene

Need for daily physical therapy

Need for help with medications and cooking and cleaning.

Need to use a wheelchair.

Many of these issues are shared by other neurologic illness such as the post polio patient mentioned above or a typical multiple sclerosis patient or post stroke patient.

Once again, since the VA only grants 30-50% of the correct rating on each iteration (not considering SMC codes) a typical example of the step wise iterative grant of ratings to the SMC is as follows:

INITIAL COMBINED CODE ON APPEAL (this could as many as three appeals)

10% 20-30% rating

30% 50-60%

60% 80-90%

90% 100%

100% TEMPORARY 100% PT

100% PT SMC codes

The SMC process can take years to get through the VA depending on how sick the patient is and what codes are involved. Often the patient’s illnesses worsens over the course of the appeals process and each new decision needs to be appealed due to a worsening medical condition with an additional independent veteran medical opinion. This is exactly what happened in the post-polio patient, mentioned above, as each iteration of VA award was unfortunately met with a worsening medical condition in the veteran.

Recommendations:

1.All veterans with large SMC medical diagnostic combined codes should obtain and gather the most comprehensive medical records possible.

2.All veterans should make and keep all medical appointments, as it is very likely that their illness will worsen over the course of the claim appeals process.

All veterans’ should obtain independent veteran medical opinions [Independent Veteran Medical Opinion (IMO)-Veteran Medical Nexus Opinion (VMNO)] for each category of SMC illness that they have such the ones mentioned above to include bladder and bowel incontinence, as these are major SMC codes. Each appeal should also be accompanied by a veteran medical opinion which explains the SMC issues to the rater

3.Of course all veterans should seek physicians who have 15+ years of independent veteran medical opinions at the BVA level as the VA SMC medical diagnostic code process is complex often with multiple layers of BVA appeals.

Additionally, all physicians who write Veteran Medical Opinions [Independent Veteran Medical Opinion (IMO)-Veteran Medical Nexus Opinion (VMNO)] should be able to categorize the 65,000 Non –VA SMC type codes into the VA’s directory of a few SMC codes. This is not a trivial process, as the VA codes all have different a complex combinable aspects, which of course excludes pyramiding of codes.

4.Low levels of training and experience by either physicians or advocates hurts a veterans chances of getting a correct SMC medical diagnostic code as any mistake made at the lower levels of appeals are magnified under further appeal reviews and amount of needed extra time, medical testing, medical opinions and associated paperwork to try and correct early errors is substantial and a correction is not always possible.

Bladder Incontinence

Bladder function is often thought to be automatic by most patients- until it does not work. The need to void occurs several times a day and without normal function (inc9nitnce) patients are be very debilitated

form the psychological and physiologic loss of this normally automatic function. Patients can end up with balder volumes of over 2 liters and/or the need to void 2 or more time an hour or with chronic infections.

The reasons for bladder dysfunction are numerous but basically they can be broken down into neurologic and anatomic dysfunction (with over lap of the two) as follows;

Neurologic;

Due to interruption in the neural circuits that have to control both detrussor function and urethra sphincter activation in an alternating fashion. If the balder contracts against a tight sphincter no urine is released and the bladder pressure increases and the kidney can be fatally damaged due to the reflux nephropathy ( AKA hydraulic pressure on the kidneys form the increase ladder pressure)

Common etiologies (nexus medical cause):

Male and female spinal cord injuries

Male and female Multiple sclerosis

Male and female neurologic disease

Male and female toxic/radiation effects to the bladder or nerves

Anatomic

Anatomic changes to the bladder urethra sphincter are pelvic floor can cause incontinence. In these causes the bladder or sphincter normally floor is scared open or the pelvic floor structures do not provide the needed support.

Common etiology (nexus medical cause):

Male female bladder surgery or sphincter surgery or pelvic floor surgery

Male prostate surgery

Female child birth

Recommendations

Since any bladder dysfunction is abnormal – all veterans should be fully evaluated with a urologist to include veterans medical nexuses opinions for imaging, urologic and neurologic testing.
Bladder dysfunction often leads to kidney dysfunction this all of these patients should put in veteran medical nexus opinions for secondary kidney dysfunction and should be tested for kidney dysfunction. Since kidney dysfunction leads to other secondary dysfunction such as blood pressure control, chronic infections and bone metabolism all secondary dysfunctions should be evaluated and added to the VA benefits veterans.
Often these conditions are treated surgical or with catheters thus any secondary complications form these treatment should be included in the veteran nexus medical opinions.
All veterans should make and keep all medical appointments because these are important for diagnosis and veteran medical nexus opinions
All medical evidence should be forwarded to the VA well prior to any decisions.
All veteran should have high quality independent veteran medical opinions and veteran medical nexus opinions examinations in their claims files prior to their decision because these cases often hinge on the medical opinions and examinations

Breast Cancer

Veteran Benefits

Many female and some male veterans have breast masses or breast problems in or following service. The best first step in the proactive analysis of this problem is the monthly self-breast exam. This is often followed by mammograms depending on the age and risk profile of the patient. Mammograms have a large percentage of both false negative/false positive results and add radiation to the patient’s cancer risk profile. So this test is imperfect but it still is really the best screening tool available.

A problem I often see involves a patient with a post service breast cancer diagnosis. These cases require a careful review of the service time medical history/records to determine if the cancer could have had its inception during service. A careful review of the mammogram imagines is also often helpful to look for overlooked small masses or calcifications.

The concept of tumor doubling time is important in linking post service tumors to service because some cancer types have fairly predictable doubling times.

As an example;

A female patient leaves service and then notes a 2 cementer breast cancer nodule one year after service.

How do we determine service connection?

It is reasonable to back calculate the tumors size, using doubling times, and state with accuracy that the cancer was or was not present during service. The Breast Imaging Division at the Massachusetts General Hospital did a 1991 to 1999 review of 810 breast cancers and found a mean doubling time of about 130 days for tumors sized 6mm to 41 mm. Tumors of smaller than 6mm had doubling times that were somewhat shorter with a mean doubling time of 36-94 days (see abstract below).

Estimates of Breast Cancer Growth Rate and Sojourn Time from

Screening Database Information

James Michaelson, PhD,* Sameer Satija, AB,† Richard Moore, AB,‡ Griffin Weber, BS,§ Elkan Halpern,

Andrew Garland,¶ and Daniel B. Kopans, MD#

Journal of Women’s Imaging

2003:5:11–19

A new method has been developed that can be used to estimate tumor growth rate from information on the numbers and sizes of breast cancers found at screening. With use of this method and information available for the tumors seen over the last decade at the Breast Imaging Division at the Massachusetts General Hospital (MGH), it appears that the median doubling time for invasive breast cancer is approximately 130 days. From this doubling time value, together with information on the sizes at which breast cancers become detectable on clinical grounds and by screening, it appears that the mean and median sojourn times for invasive breast cancers in the MGH population are approximately 1.7 and 1.3 years, respectively. [Key words: breast cancer, doubling time, growth rate, sojourn time]

http://www.lifemath.net/quantmed/pdf/Michaelson%20Br%20Ca%20Growth%20Rate.pdf

Post cancer treatments are often secondarily service connected because patients with breast cancers also often have a series of secondary medical and surgical problems. These should be analyzed for additional VA medical diagnostic codes once service connection is established by veteran medical nexus opinion. Two common devastating complications of aggressive treatment are arm edema following mastectomy and post-radiation neuro-vascular changes.

Recommendations:

Women, especially, should do monthly self-breast exam and have mammograms as per the most current advice of national cancer society or their physician. These guidelines change frequently.
Since often these tumors are found post-service a close review of the patient’s service history and medical imaging should be done.
All secondary medical/surgical complications should be evaluated and treated and assigned a VA medical diagnostic code.
An effort to back calculate the size of any tumor should be done as a means to determine if the breast cancer had its inception during service.

Female Vaginal Bleeding

This is common problem that can be a normal cycle or outside the normal because often the stresses of service will cause variations in a women’s routine bleeding cycle/s.

Usually, a physician should evaluate any persistently more frequent or heavier vaginal bleeds during service.

I have had many patients with abnormal bleeding cycles/volumes in service that later found out that they have fibroids. Occasionally, these fibroids (leiomyomas) need to be surgically removed and this might involve a hysterectomy. On retrospective review of these female soldiers service records often there is a clue that the fibroid was present during service. If the fibroid can be linked to service then post service treatments and disabilities can also be service connected.

Other more serious problems such as tumors or hormone imbalances can also cause abnormal bleeding patterns and these should also be evaluated by a physician in service. These more serious problems can linger, with slowly worsening symptoms over time, thus it is not unusual for these problems to be formally diagnosed post service. Again, a careful review of the patient’s history and service medical records is useful in linking any post-service bleeding problems to service origin.

These bleeding problems, acutely, are best evaluated in the hospital clinic so that lab testing, imaging and physical exams can be done and it is difficult to predict exactly which type of diagnosis is causing the bleeding problems without direct contact with a physician.

Of course, the old axiom applies as follows;

“… Bad things do not get better with time…”

Thus all female soldiers should be proactive in obtaining a diagnosis for any concerning unusual bleeding episodes, which means that a diagnosis should be assigned before the termination of treatments as these problems can be complicated.

Recommendations:

Women soldiers should seek medical care in service when they experience presently abnormal bleeding patters or volumes.
A diagnosis should be assigned to each abnormal bleeding pattern
Since often these problems are found post-service a close review of the patient’s service history and medical imaging should be done. Patient’s should keep all service records so that a retrospective analysis of their service medical problems can be performed.
All secondary medical/surgical complications should be evaluated/treated and assigned a VA medical diagnostic code.

Fly in Expert Witness at Hearings

I have done many VA hearing as a medical subject matter expert concerning complex medical issues because the Judges, DROs, raters (The Deciders), service officers and patients are not physicians. The issues involved in any typical veteran claim (that makes it to any appeal level) are usually complex as the medical problems extend often over decades and are thus also often associated with many primary and secondary complications.

The following is a list of ways that the medical expert can be beneficial at any hearing;

Expert can order additional medical nexus testing prior to the hearing.
Expert can review the most recent copy of the claims file.
Expert can work with lawyer or service officer advocate to gather pertinent documents.
Expert can examine the patient at the hearing for benefit of The Deciders.
Expert can decipher medical records and CP/QTC/private examination reports.
Expert can comment of the value of other medical nexus opinions in the file (referee).
Expert can present and explain medical imaging/lab test and pathology report/consults.
Expert can address real time any questions that The Deciders might have.
Expert can address any questions that the service officer or patient or patient’s family might have.
Expert can explain the pathophysiology, anatomy and the diagnoses involved in the rating.
Expert can relieve any of the patient’s anxiety over the hearing process and potentially not being able to present the medical facts.
Expert can, after the hearing, order any new tests needed to satisfy quarries by The Deciders.
Expert can, after the hearing, provide a written explanation of issues discussed.

Recommendation:

All veterans with complicated cases should consider having an expert witness at their hearings for a professional medical nexus explanation.
I am available to appear at hearings depending on my schedule.

Pulmonary disease TB (tuberculosis) vs. COPD (chronic obstructive pulmonary disease)

Many patients historically have been exposed to repository diseases such as TB in service due to the close quarters associated with boot camp and deployments. Often these patient’s have ling damage (scarring) from the TB but the also may have a smoking history which is also well-know cause of lung damage. The VA will normally reflexively say that the lung diseases are all due to the smoking history if the patient has a smoking history. But this incorrect because lung disease on the first estimation is split into restrictive and obstructive lungs diseases processes as described below:

Restrictive lung disease (restrictive ventilatory defects): a form of lung scarring (honeycomb)- that can occur following TB- also known as fibrosis and reduces FEV-1 and total lung capacity.

Obstructive lung disease: often due to smoking also called COPD also reduces FEV-1.

A typical example is the flowing:

Mr. Smith had a severe case of TB in service with a collapsed right lung treated with a right-sided chest tube. He, on follow-up imaging, had residual TB scarring of his right upper lung and left lower lobe. On my film review I estimated that this scarring compromised his lung function by 30-40%. His historical PFTs showed a low FEV-1 consistent with both COPD and TB but the PFTs did not capture the full extent of his restrictive lung disease scarring. He is pulmonary cripple (His Metabolic equivalent of task = a MET of 1- he was only able to walk short distance even in 1940s following his TB treatment. No diffusion scan called DLCO had been done which would have helped determine that his lung disease was significantly due to TB. The VA on CP exam in 1997 stated the following:

“…3/1997-Veteran was evaluated by pulmonary service. Obstructive airway was diagnosed. “ It is uncertain how much of this might be related to his past history of cigarette smoking and how much is just reactive airway disease of unknown etiology…restrictive disease possibly caused by the lung damage from the TB…”

His case has lingered until now. It important to note that his smoking history was minimal compared to his TB (restrictive type) loss of lung function in the early and late 1950’s. His spouse had known him since 1957 and she stated that he could not even walk a short distance without being short of breath (1 MET) and could not dance or do anything physical even when they first met in 1957- again due to his shortness of breath.

METs are defined as follows:

1 MET = Eat-dress use toilet- standing at rest or oxygen uptake at 3.5 mls per kg of body wt per minute
MET = walk around
MET = walk 2 blocks on level 2-3 miles/hr
MET = wash dishes, dust
MET = climb a flight of stairs
MET = run a short distance walk briskly >4 mph
MET = scrub floors, lift heavy furniture
MET = dance, play golf or tennis
>10 MET = swimming, basketball, skiing

His daughters stated that their Dad never played sports with him due to his poor pulmonary function. He had been smoking for about 15 years at this point as a casual smoker and the time lag for significant pulmonary damage from smoking is my experience longer than 15 years. METS are normally used for cardiac dysfunction in the rate schedule but his dysfunction over the years is best described using the MET system, which encompasses both cardiac and pulmonary dysfunctions.

Recommendations:

All patients with lung diffusion that is not solely due to one pulmonary disease should get a DLCO test along with PFTs.
All patients should get good lay statements to support their cases as the above statements clearly show that this patient had severe lung disease early in his claims process.
All patients should consider the METs system to help establish disability if they are not able to do cardiovascular demanding type work or recreation.
An effort to back calculate the size of any tumor should be done as a means to determine if the breast cancer had its inception during service.

Infectious Diseases

Most veterans enter service without chronic illnesses but are exposed to an array of infectious diseases – many of which can have life-long complications.

For example, I recently evaluated a patient with a chronically swollen right lower extremity. He had Filariasis (elephantiasis) that had been smoldering for 40 years, in an undiagnosed state. The patient had Lymphatic Filariasis, which caused his massive elephantiasis—edema of the skin of his lower extremities. During his work-up the patient case was of such significance that he was seen by the NIH who had interest in his cases due to the fact that the patient had gone untreated for many decades.

I also recently had a patient who had a chronic fungal infection (Melioidosis AKA Vietnamese tuberculosis) in his right foot due to a Viet Nam Punji stick/stake puncture as the sick inoculated his skin with his clothing which contained local decaying soil. This patient’s fungal infection had also lingered for decades without treatment.

It is not uncommon for soldier patient’s to also have lifelong complications from infections such as malaria and hepatitis, which are common diseases throughout the world.

Occasionally, some patients have complications from vaccinations that are given to prevent infectious diseases. For example, I have had a recent patient who likely had secondary thyroiditis complications from his 6 dose anthrax vaccination series.

***Many of these infectious diseases are rated at the 100% rate because they are a multi-system process and can cause serious primary and secondary medical issues.

Recommendations:

All soldiers should maintain a current shot record.
All soldiers should be aware of any fluctuations with either body temperature or night sweating as these symptoms can indicate a serious chronic infection.
Any chronic infection should be evaluated in light of its possible origin in service as many infections can lay relatively dormant for decades.

Primary Care & Spine

Most veterans have some sort of back injury due to the strains of service. Thus is common in clinical practice as about 80% of the neuro-imaging cases that I review involve spine issues.

Unfortunately, many patients go to primary care physicians/providers (Family Practice and Internal Medicine and nurse practitioners and physician assistants) for their spine issues. I have recently noticed that primary care physicians have provided medical nexus opinions for veteran patients for the VA, which I have subsequently had to review and edit so that correct benefits can be approved. The issue of expertise involves years of training known as postgraduate years (PGYs) and I have 7 PGY years whereas the average primary care physician has only 3 PGY years and NPs/PAs have even less.

It should be noted that Spine cases are difficult to understand due to their complexity and a recent New England Journal of Medicine -NEJM (March 26, 2015 page 1247) article touched on this issue by stating the following:

“…. MRI should be ordered by clinicians who can interpret the results; it is discouraged at the primary care level…”.

The NEJM recognizes the limitations of primary care physicians and thus in this complex spine case the VA deciders should defer to the spine experts and the neuro-imaging.

It is not uncommon for soldier patient’s to also have life long complications from spine issues with both bowel and bladder dysfunction.

Occasionally, some patients have complications that limit their ability to walk and are thus often house bound. The VA has special ratings for these situations and they are contained in the Special monthly Compensation rules (SMC). The rules are very complex. I have been working with them for 20 years but I was told by a long term VA appeals executive (BVA-AMC level) that only a handful of VA employees completely understand the complex SMC rules.

***Many of these SMC codes are rated significantly above the 100% level because they involve multiple organ system simultaneously and it is the interdependence of the multiple systems that makes these codes complex and difficult for the physician and rater alike to accurately determine the level of illness.

Recommendations:

All soldiers should seek experts, which are acceptable to the VA and have proven track record as armature VA IME/IMO physicians can complicate the claims process, which of course can be detrimental to the outcome as each word is important in the opinion.
In the spine area a physician with neurologic training is an absolute requirement as noted in the NEJM article above.
All soldiers should be aware of secondary complications from spine inquires and the need for an analysis of SMC codes.
All claims should be placed on the correct forms as VA has adopted a draconian rule in 2015 of “No form No benefits”

Special Monthly Compensation (SMC)

Special Monthly Compensation (SMC) is a way for the VA to compensate the most seriously disabled veterans with benefits well above the 100% level for many non-economic factors such as social inadaptability, loss of body part/ function and/or profound disability. The sub-100% levels unitize about 2000 VA rating codes but the SMC codes utilize about 60 additional codes in incremental full/half steps (see short eligibility list at the bottom of this note-courtesy of vet 101 web site) which go above 100% to maximal R-2 and T levels or about a 300% level. These codes are used to rate patients for issues such as loss of ability to perform activities of daily living (ADLs) like loss of ability to maintain clean hygiene, dress/undress, speak, feed, toilet, and/or inability to protect self from the daily hazards of life. There are only about 30,000 veterans rated at the 100% level and the numbers of veterans in the maximal SMC category is thankfully even more exceedingly small (in the 3000 range) as these veterans have maximal catastrophic injuries. With the current surge of TBI injuries from the gulf wars (VA in 10/2015 estimated the number to be 400,000) due to high quality body armor and medical care. With advanced point of injury care soldiers are surviving with more and more serious injuries and thus the VA benefits division of 20,000 employees has responded to large need for TBI injury benefits with a relatively new SMC code specifically for TBI called: SMC T. Note worthy is the fact the American public generously provides monetary benefits for the SMC T at the same rate as SMC R2.

Overall, the higher level SMC codes contain about 60 different ways to rate catastrophically injured veterans for major neurologic losses to the brain (TBI)/spinal cord (SCI) along with loss of limbs, sight, hearing and speech. The non SMC rate schedule utilizes the concept of the amputation rule- such that any region can not be rated for more than the maximum allowed under an amputation for that region but the SMC codes are more liberal and thus for example a head/brain with a TBI can be rated for both psychiatric and cognition problems simultaneously. Analogously, the spinal cord can be rated for loss of 1 to 4 extremity use, loss bowel/bladder/sex functions — also simultaneously. The rate of co-associated (co-mormid) spinal cord injury (SCI) and TBI injuries is on the order of 70-80%, thus many of these patients enter into the SMC codes in combined ways with both SCI and TBI inquires. ( n.b. Clinically the veteran health administration [VHA] has intelligently developed poly-trauma centers whereby these TBI and SCI inquired patients can rehabilitate in a unified setting.) Wither you have a spinal cord injury or a TBI injury the VA codes maximally provide monetary benefits at the R-2 SMC level for spinal cord injuries and SMC T for TBI.

Based on the discussion the 60 SMC codes are complex and as such it is known that even experienced BVA judges carry a printed primer on SMC to use during live hearings as a sort of intellectual crutch. Amazingly, a senior VA employee told me that that there are only a handful of VA employers nationwide that fully understand the subtle ins and outs of all the 60 SMC codes. Hence, when a veteran obtains a routine rating for any SMC issue the likelihood that that SMC rating is imperfect is high due to the complexity of the SMC codes, the lack of knowledge of these codes by any single rater and the lack of code knowledge by claims and pension (C and P) physician examiner. The physician’s lack of knowledge is especially problematic as the rater depends on the physician to document the patient’s disabilities in line with the rating schedule. Therefore, most staff VA physicians do not do a correct rating exam for SMC as they are not trained in the SMC code system.

Adding complexity to the SMC coding process, the VA has started to use a nation wide series of DBQ forms, which are not geared toward any specific SMC code. SMC codes, by their nature, always involve an integration of ratings based on several DBQs, thus when a DBQ for SMC is done it is usually inadequate.

For example, a standard spinal cord injury SMC code of SMC (O) or R-1 would require 5-6 DBQS forms to fully document the issues needed for an accurate rating. The physician is usually lost in this process as he does not know which DBQs apply nor the relative importance of organ system issues because the VA rate system is not in line with a physicians primary training in medical analysis, which involves the SOAP (subjective objective assessment and plan) note. Physicians training involve a format whereby the emphasis is on the patient’s assessment/diagnosis followed by a plan for treatment.

A good review of the eligibility for each SMC codes is found here:

https://www.vets101.org/a/58/d1.aspx

And a good general over view of SMC is found here at the Purple Heart web site:

http://www.purpleheart.org/ServiceProgram/Training2012/10-M-%20SMC%20final.pdf

If the above SMC codes are not correctly assigned there is the opportunity to correct these errors thru the clear and un-mistakable error (CUE) process, which requires full a record review by a high level GS-13 rater called a DRO. ”…Many blogs state that the CUE process is impossible to navigate and obtain a corrected rating- this is not true- but the CUE process does depend on a careful longitudinal review of the entire medical record. Such a review by a physician is essential because the civilian medical sector utilizes 65,000+ ICD-10 payment diagnostic codes. Hence, a physician is needed to analyze/interpret all old diagnostic codes and medical clinic notes to look for analogous VA codes. In other words, the physician must in essence merge the VA’s 2000 regular codes and 60 SMC codes with the civilian 65,000+ ICD-10 codes in order for the DRO to do a reversal of past ratings by way of a new staged rating. The CUE process should really be a joint work product between a DRO and an experienced physical due to the complexities of the historical medical record which involves a changing disease process which simultaneously must also be merged with a time changing set of VA rating rules….”

Recommendations:

All SMC patients should pursue an experienced administrative benefits representative and obtain medical opinions for any SMC injury as this is a complex area and many benefits are often over looked by inexperienced support staff.
All patients should have a private medical nexus opinion and exam with DBQ forms prior to all SMC at the RO, DRO or BVA decision at any level.
All patients should go to an in-person hearing. In my experience the outcome of the cases is more accurate with in-person hearings as the judge can ask the patient real time questions which are based on the medical record and claims file.
In my experience, the best type hearing to go to is in Washington DC (The wait now for these in-person hearings are on the order of several months as the backlog of appeals claims is growing in response to the VA’s current affinity for the 3-4 sentence denial, which is reducing the backlog by about 20,000 claims a month but of course these terse options are increasing the BVA appeals backlogs.), the second best hearing is a video hearing and third is the travel board hearing. The reason for my above opinions is that, again in my experience, the BVA Judges have the most available time at the in-person BVA DC area hearing, they have the second most time in the video hearings and they have least amount of time in the travel boards hearings. In fact at most travel hearings the travel judge is scheduled for 11-12 hearings in a day, which leaves a limited amount of time for each individual patient’s hearing testimony. (n.b The BVA travel board routinely take 2-3 years to schedule whereas an in-person or video hearing could occur in as few as 3-6 months)

FYI *** VA has a new policy of “ No Form No Benefit” (NFNB) so please do the forms as carefully as possible and use administrative accredited agent and use an experienced physician for SMC DBQ forms for a maximally correct VA medial diagnostic code (rating).

Short list of SMC codes:

Eligibility for Specific Levels of SMC

To receive an SMC (k) award you must have one of the following:

Anatomical loss (or loss of use) of:

o One hand

o One foot

o Both buttocks (where the applicable bilateral muscle group prevents the individual from maintaining unaided upright posture, rising and stooping actions)

o One or more creative organs used for reproduction (absence of testicles, ovaries, or the creative organ, ¼ loss of tissue of a single breast or both breasts in combination) due to trauma while in the service, or as a residual of service-connected disabilities

o One eye (loss of use includes specific levels of blindness)

Complete organic aphonia (constant loss of voice due to disease)
Deafness of both ears that includes absence of air and bone conduction

To receive an SMC (l) award you must have one of the following:

Anatomical loss (or loss of use) of:

o Both feet

o One hand and one foot

Blindness in both eyes with visual acuity of 5/200 or less
Permanently bedridden
Regular need for aid and attendance

To receive an SMC (m) award you must have one of the following:

Anatomical loss (or loss of use) of:

o Both hands

o Both legs at the region of the knee

o One arm at the region of the elbow with one leg at the region of the knee

Blindness in both eyes, having only light perception
Blindness in both eyes resulting in the need for regular aid and attendance

To receive an SMC (n) award you must have one of the following:

Anatomical loss (or loss of use) of both arms at the region of the elbow
Anatomical loss of both legs so near the hip that it prevents the use of a prosthetic appliance
Anatomical loss of one arm so near the shoulder that it prevents the use of a prosthetic appliance, along with the anatomical loss of one leg so near the hip that it prevents the use of a prosthetic appliance
The anatomical loss of both eyes, or blindness in both eyes that includes loss of light perception

To receive an SMC (o) award you must have one of the following:

Anatomical loss of both arms so near the shoulder that it prevents the use of a prosthetic appliance
Bilateral deafness (both ears) rated at least 60% disabling, along with service- connected blindness with visual acuityof 20/2000 or less in both eyes
Complete deafness in one ear or bilateral deafness rated at least 40% disabling, along with service-connected blindness in both eyes that includes loss of light perception
Paraplegia-paralysis of both lower extremities, along with bowel and bladder incontinence
Helplessness due to a combination of loss (or loss of use) of two extremities with deafness and blindness, or a combination of multiple injuries causing severe and total disability

To receive an SMC (p) award you must have one of the following:

Anatomical loss (or loss of use) of a leg at or below the knee, along with the anatomical loss (or loss of use) of the other leg at a level above the knee
The anatomical loss (or loss of use) of a leg below the knee, along with the anatomical loss (or loss of use) of an arm above the elbow
The anatomical loss (or loss of use) of one leg above the knee and the anatomical loss (or loss of use) of one hand
Blindness in both eyes, meeting the requirements listed for SMC (l), (m) or (n)

To receive an SMC (r) award you must:

Be receiving the maximum SMC (o) benefits and require:

o Aid and attendance, or

o Aid and attendance of another person without which you would require hospitalization, nursing home care or other residential type care

To receive an SMC (s) (Housebound) award, you must either:

Meet all of the following:

o You have a service-connected disability rated at 100%

o You have a qualifying, additional service-connected disability (or disabilities) that is completely separate from the first disability and is independently rated at 60%

o You are approved for VA disability compensation

Be housebound:

o Your disabilities must directly cause you to be substantially confined to your home and the immediate premises or, if you are in an institution, to the ward or clinical areas

o Also, it must be reasonably certain that your disability or disabilities and confinement will continue for the rest of your life

To receive an SMC (t) award you must:

Need regular Aid and Attendance (A&A) for the residuals of (results of) Traumatic Brain Injury (TBI)
Not be eligible for a higher level of A&A under SMC (r)(2)
Need hospitalization, nursing home care, or other residential institutional care without in-home A&A

Eligibility for Aid and Attendance

Usually, you may qualify for regular Aid and Attendance (A&A) benefits based on any of the following circumstances:

You need the regular help of another person to perform everyday living activities, adjust prosthetic devices, or protect yourself from the hazards of your daily environment. Even if you are able to perform some of those functions, you may still be able to qualify for A&A, because the VA will consider the particular personal functions that you are unable to perform in connection with your condition as a whole.
You are bedridden because your disability (or disabilities) requires you stay in bed, not because of any treatment you have had, such as surgery; OR
You are a patient in a nursing home because of a mental or physical incapacity; OR
You are blind, or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or have concentric contraction of the visual field to 5 degrees or less.

VA 300% Code SMC

The VA code scale goes above 100% to maximum levels well above 100%, which I call 300%. These so called 300% codes, are contained in the VA rules under the label- Special Monthly Compensation (SMC).

The SMC codes are so complex that even 20 year experienced BVA judges routinely carry SMC paper primers on the application of these codes to their BVA hearings. Hence, if BVA judges have a hard time applying these codes the average rank and file rater is usually totally lost.

Most patients have never even heard of these codes. Patients usually think that the VA disability code schedule stops at 100%. Thus, many patients stay at 100% level for decades as they age. Unknowingly, as they age, they might very well qualify for additional VA benefits under the SMC categories because most patients suffer age related secondary conditions which in turn would qualify them for the SMC code categories.

The SMC codes are reserved for the very seriously injured (amputated) veteran or veterans with major neurologic (Spinal cord and/or traumatic brain injures/stroke/Multiple sclerosis) losses or veterans with other major organ system failures such as diabetes which then might cause (for example) secondary renal failure or secondary peripheral neuropathies which in turn might create respectively the need for dialysis or loss of use of their legs.

Many combinations of disabilities and secondary conditions are allowed and considered in the SMC code matrix hence these codes are complicatedly interdependent/intertwined as mentioned above.

Recommendations:

Any veteran who is in a wheel chair or has major secondary medical problems should research the SMC codes as they may qualify for additional benefits.
Patients should pursue high level BVA decisions in bone-fide SMC cases and ask for BVA reconsiderations, if their prior decisions, are not consistent with their medical records.
All patients should have a private medical nexus opinions and exams by a physician experienced with interdependent nature SMC. Physicians should do DBQ forms for all SMC cases prior to all VA decisions.
All patients should go to any BVA in-person hearings because the outcome of the cases is more accurate. The decisions are more accurate because the BVA as the judge is able to ask the patient real time detailed questions based on the medical record and offer suggestions to the patient concerning any information that is needed for a favorable decision in line with the duty to assist rules.

FYI *** VA has a new policy of “No Form No Benefit” (NFNB) so please do all VA forms as carefully as possible. The use of an accredited agent is prudent.

Here is a list of VA educational bulletins

I will try to do a new bulletin update every month, so please check back soon for new information!

C & P Exams

Amyotropic Lateral Sclerosis (ALS)

ALS – Lou Gehrig’s disease

Upper extremities

Lower extremities

Secondary (hidden) conditions

Sleep Apnea

Anxiety and TBI

Social Security vs. VA

Prostate cancer reduction-ratings

Aggravation

IHD and CAD and PAD and DMII

BVA Remanded Medical Opinions

Diabetes Mellitus = DMII

How to speed up claims processing

Claim has been pending for years:

Permanent and Total

Special Monthly Compensation (SMC)

Veteran Medical Nexus Opinion (VMNO).

Bladder Incontinence

Breast Cancer

Female Vaginal Bleeding

Fly in Expert Witness at Hearings

Pulmonary disease TB (tuberculosis) vs. COPD (chronic obstructive pulmonary disease)

Infectious Diseases

Primary Care & Spine

Special Monthly Compensation (SMC)

VA 300% Code SMC

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