Previous Thread
Next Thread
Print Thread
DeLuca Criteria
#102062 08/17/06 01:34 AM
Joined: Mar 2006
Posts: 36
J
jb49 Offline OP
Member
OP Offline
Member
J
Joined: Mar 2006
Posts: 36
Just read over the last posts under "Mike-The VA checklist web address" and am wondering if my husband's spondylitis while it is not alkylosing could have been evaluated under the DeLuca Criteria. I googled DeLuca Criteria and found a very long report which I saved for future reference and other information in the topic "VA Ankylosing Spondylitis Rating Policy" which stated in the answer to you, Mike, that "X-ray evidence is not required for us to apply the Deluca Criteria".

Is there someplace which states what the DeLuca Criteria is? I am in the middle of an appeal and this would be very helpful because while x-ray evidence doesn't show a fracture, my husband is very disabled and has flare-ups (we are in the midst of one as I write) but according to the VA examiner's report, x-ray evidence has to show a fracture, etc. As usual, any information you could give me or website you could direct me to, would be very appreciated. Diane


John
Re: DeLuca Criteria
#102063 08/17/06 03:15 AM
Joined: Jun 2004
Posts: 573
M
Registered Visitor
Offline
Registered Visitor
M
Joined: Jun 2004
Posts: 573
From the Board of Veteran Appeals case # 025322:

The Court has held that, when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. 4.40 and 4.45 (1999) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).

( BVA cases can be searched and viewed at http://www.index.va.gov/search/va/bva.html )

Paragraphs 4.40 and 4.45 of the VASRD (AKA 38 C.F.R., part 4)

http://ecfr.gpoaccess.gov/cgi/t/text/tex...686fc0a&rgn


4.40 Functional loss.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.


4.45 The joints.

As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations:
(a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.).
(b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.).
(c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.).
(d) Excess fatigability.
(e) Incoordination, impaired ability to execute skilled movements smoothly.
(f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions.

Do not count on your local VA officials to know or do this. Ensure they use the VA Physician's Worksheets during exams to capture the information needed for rating under the provisions of paragraphs 4.40 and 4.45 above as well as other applicable criteria of the VASRD .

Happy Hunting,

Mike

Re: DeLuca Criteria
#102064 08/17/06 03:33 AM
Joined: Mar 2006
Posts: 36
J
jb49 Offline OP
Member
OP Offline
Member
J
Joined: Mar 2006
Posts: 36
Thank you, Mike. I have my work cut out for me but since my husband was originally hurt on the flight deck in VietNam in '69, we have been at this for a long time. If I get stuck on some details, I may be asking for some advice. I can't thank you enough, Diane


John
Re: DeLuca Criteria
#102065 08/17/06 11:01 PM
Joined: Jan 2006
Posts: 207
G
Member
Offline
Member
G
Joined: Jan 2006
Posts: 207
Thanks Mike! Very, very useful as my re-evaluation moves forward. Makes sense at the initial rating but things change over the years.


Sal

Moderated by  ElinAslanyan 

Link Copied to Clipboard
Powered by UBB.threads™ PHP Forum Software 7.7.4