For those who follow this board, you have read about the issue with how the military disability boards rate ankylosing spondylitis, per the VASRD, for disabled service members being medically separated or retired.
The VASRD, DOD and service regulations all have requirements to rate the disease for the active process of the disease (code 5002) and for the residual effects caused by the disease (5200 series of codes). In 2003, the VA modified the of the 5200 series codes from spinal injuries and diseases. The intent was to make the criteria more objective and to give more distinction as to the cause of the residual damage. At that time, the VA introduced code 5240, ankylosing spondylitis. The 5240 criteria only covered the spinal range of motion issues associated with the disease.
The Army and the Air Force PEB's have since erroneously extrapolated the intent of this new code to now be the only criteria required to rate ankylosing spondylitis. (I have yet get any information on how the Navy/Marines are rating AS since the change.) The Army/USAF PEB's now feel they are no longer obliged to considerer the rating criteria for the systemic and constitutional aspects of disease, (covered under code 5002). This has a severely detrimental effect on the disabled service member, as often the ratings under 5002 would be high enough to lead to retirement vice separation.
A recent case in point was that of SAA member, SPC(R) Linwood Hoffman. In 2003 he was placed on temporary disability retirement for ankylosing spondylitis with a 40% rating under code 5002. This year, during a mandatory periodic review, the Army PEB rating SPC Hoffman at 20% under code 5240 even though his condition has worsened since 2003. This ruling means he will lose his disability retirement and benefits to include his and his family's health care coverage. Bear in mind that the VA DoD, nor any of the Services, have established policy stated that consideration under code 5002 was no longer required for rating Ankylosing Spondylitis disabilities given the 203 changes. The Army PEB opined that the had to follow the VASRD, the intent of the 2003 VA change eliminated 5002 consideration, and the regulations and policies (to include their own) just needed to catch up. While point one is correct, the last two points could not be further from the truth.
I have been monitoring the VA board of Appeals database (
http://www.index.va.gov/search/va/bva.html ) for cases that might address this subject and demonstrate current VA requirements for ankylosing spondylitis ratings. A recently posted 2005 case has spoken. While the entire case is available by citation number at the link above, the key aspects of the decision are below:
Citation Nr: 0518317 Decision Date: 07/05/05 Archive Date: 07/14/05
THE ISSUE Entitlement to an increased rating for ankylosing spondylitis (formerly characterized as spondylolysis with spondylolisthesis of L5, S1), currently rated as 40 percent disabling.
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).
Note: The 5293 and 5243 codes were for the service member’s intervertebral disc syndrome related to his service connected ankylosing spondylitis
The VA Board of Appeals have clearly stated that the LAW requires that 5002 criteria be considered when rating Ankylosing Spondylitis post the introduction of VASRD code 5240.
I have passed this information on to the DoD action officer who is currently investigating military ankylosing spondylitis disability cases and I will pass it on to the VA policy personnel as well.
Mike
