Hello everyone, I am Beka's husband. We recieved the documentation from the informal board two days ago. It came back as accured while recieving basic pay, and in the line of duty. The disability rating the VA gave me is 10% under code 5240. At 10% I am going to push for a formal board with my case being miss codeing. My wife and I have been doing research and I found a letter from this forum site (Spondylitis Association of America)that was posted by user name mmparker. It is quite long, but incase nobody else has seen it, I want to get it out there. I hope this helps everyone.
Department of Veterans Affairs
VA Regional Office
210 Franklin Rd., SW
Roanoke, VA 24011
April 25th, 2006
Dear LTC Parker,
This is in response to your letter to Secretary of Veterans Affairs, R. James Nicholson concerning disability ratings. Your letter was referred to the Department of Veterans Affairs Roanoke Regional Office because this office has jurisdiction of your address.
Beginning in 2003, the VA evaluates limitation of motion of the spine due to ankylosing spondylitis under diagnostic code 5240 in the Schedule for Rating Disabilities. However, where there is additional impairment of health due to the active disease process, VA will rate this condition under the diagnostic code that is most advantageous to the veteran. VA will also take into account limitation of a veteran's joint function caused by pain (including pain on repeated use), fatigue, weakness, and lack of endurance or coordination. X-ray evidence is not required for us to apply the Deluca criteria.
Questions about how the Department of Defense interprets VA's Schedule of Rating Disabilities would have to be addressed to the Department of Defense.
For Further Information of Assistance
If you have any more questions or concerns, please feel free to contact the VA Regional Office located at the address shown above, telephone toll-free 1-800-827-1000, or contact us via https://iris.va.gov.
A representative will be happy to assist you.
JOHN W. SMITH
The Honorable R. James Nicholson
Secretary of the Department of Veterans’Affairs
810 Vermont Street, NW
Washington, DC 20420
Dear Secretary Nicholson,
For the past few months, I have been trying to get specific answers to specific questions from your department without success. The questions deal with how to properly rate the inflammatory arthritic condition, Ankylosing Spondylitis, per the Veterans’Administrations Schedule for Rating Disabilities (VASRD). These questions are relevant to both VA and military disability ratings. My specific questions are:
Is Ankylosing Spondylitis still evaluated under criteria for diagnostic code 5002 and applicable residual codes like all the other forms of inflammatory, autoimmune arthritis (e.g. reactive arthritis, psoriatic arthritis, seropositive rheumatoid arthritis)?
Given the Deluca criteria for limitation of motion (LOM) ratings, is it appropriate to deny a LOM rating because it is not based on X-Ray evidence of “mechanical limitation”? Does the VASRD currently allow LOM ratings when the motion is limited by pain or other causes?
Prior to 2003, there was universal agreement that Ankylosing Spondylitis should be rated under VASRD code 5002 for the active disease process and well as applicable codes for any chronic residuals. Per the VASRD, the ratings for the active disease process and the chronic residuals are not to be combined; rather the higher rating is applied. In 2003, the VA enacted revised VASRD criteria for evaluating residual effects due to diseases and injures of the spine. The new criterion includes rating code 5240, Ankylosing Spondylitis. The Department of Defense has interpreted this change to mean that the VASRD no longer requires them to rate Ankylosing Spondylitis under the active disease process (5002) criteria as well. The effect of this interpretation has had a devastating affect on service members found unfit for further military service due to this condition. Many service members with this disease have been denied medical retirement or have had existing medical retirements terminated because this interpretation of the VASRD lowers their DoD assigned disability ratings.
While it makes no sense that Anklylosing Spondylitis would be singled out by the VA as the only inflammatory arthritic condition no longer rated under the criteria for active disease process, the military has held steadfast to their “new” interpretation of the VASRD. My research from VA sources has reinforced, rather than eliminated, the requirement to continue rating Ankylosing Spondylitis under the 5002 criteria. A summary of this research is enclosed for your review.
I respectfully request that your department clear up this issue as soon as possible to ensure our current service members and veterans with this condition are properly adjudicated for disability benefits from both the Veterans’ Administration and the Department of Defense. Please feel free to have your staff contact me if further information or background material is required.
Enclosure as stated
Michael A. Parker
United States Army
Senator Larry E, Craig, Chairman, United States Senate Committee on Veterans’Affairs.
Senator Lindsey O. Graham, Chairman, Personnel Subcommittee, United States Senate Committee on Armed Services.
Research Findings on VASRD Ratings of Ankylosing Spondylitis
a. There are numerous VA Board and Court of Appeal rulings citing "Ankylosing Spondylitis is a form of Rheumatoid Arthritis" and many rulings rebuke raters that failed to use 5002 criteria for active Ankylosing Spondylitis. http://www.index.va.gov/search/va/bva.html
b. The VASRD states 5240 criteria is for residuals: "For rating codes 5235-5243...With or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease." The VA's Federal Register publication explaining the new disease/injury of the spine criteria: "The rating formula would be used when any of these conditions results in symptoms such as pain (with or without radiation) stiffness or aching of the spine due to residuals of injury or disease." (Federal Register, Sep 4th, 2002,Volume 68, number 28, pages 6997-7035)
c. While the VA was updating the spinal residual criteria described in paragraph b, they also released proposed criteria in the Federal Register for rating Ankylosing Spondylitis. "We propose to retitle diagnostic code 5009 as "other types of noninfectious arthritis (including ankylosing spondylitis, Reiter’s syndrome, psoriatic arthritis, arthritis associated with inflammatory bowel disease, and other seronegative types of arthritis)”” and, “We propose to continue evaluating other types of noninfectious arthritis under the same criteria and range of evaluation as rheumatoid arthritis....”. (Federal Register Feb 11th, 2003, Volume 68, Number 28, pages 6997-7035).
d. The VA Adjudication Procedures Manual (M-21) calls Ankylosing Spondylitis, Rheumatoid Arthritis of the Spine: “Rheumatoid Arthritis of the spine, also diagnosed as rheumatoid spondylitis, ankylosing spondylitis, or Marie-Stumprell disease..."
The manual goes on to list disability factors of the active disease process to be considered in the rating process. The manual also specifically addresses residuals: “Two diagnostic codes may be used to identify the source of a disability or a residual condition. For example, ankylosing of the spine from rheumatoid arthritis would be rated as 5002-5240.” (Note: The 5002 criteria was written in 1963 a decade before the ankylosing spondylitis became the favored term for the disease.) The VA did an extensive update to it's M-21 manual and released these changes under a manual called M-21MR in December 2005. This manual continues to list Ankylosing Spondylitis under the chapter for rheumatoid arthritis calling it rheumatoid arthritis of the spine, AKA rhuematoid ankylosis, ankylosing spondylits, and Marie-Stumprell disease.
e. The VASRD, paragraph 4.27 now includes the following passage, using ankylosing spondylitis rating codes in the example:
"In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Thus, rheumatoid (atrophic) arthritis rated as ankylosis of the lumbar spine should be coded “5002–5240.” In this way, the exact source of each rating can be easily identified."
The VA's rationale for the change above was published in the Federal Register in December 2005. The rational stated that this was not a rule change but rather a housekeeping change since the paragraph previously stated, "ankylosis of the lumbar spine should be coded “5002–5287." 5287 was the previous residual code for ankylosis of the spine. (Federal Register: December 20, 2005, Volume 70, Number 243 - Rules and Regulations, Page 75398-75399)
f. A 2005 Board of Veteran Appeals case involving Ankylosing Spondylitis demonstrates that 5002 criteria is still applicable for AS even after the 2003 changes:
"Conclusion of LAW:
The criteria for a rating in excess of 40 percent for ankylosing spondylitis (formerly characterized as spondylolysis with spondylolisthesis of L5, S1) have not been met. 38 U.S.C.A. § 1155 (West 2002);
38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5292, 5293, 5295 (as in effect prior to September 23, 2002);
38 C.F.R. § 4.71a, Diagnostic Code 5293 (as in effect from September 23, 2002 through September 25, 2003);
38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5240, and 5243 (effective from September 26, 2003). "
Citation Nr: 0518317 Decision Date: 07/05/05 Archive Date: 07/14/05
I know that this is a long read, but I feel the information in it is important. Thank you all for your support.