How Should VA Rate Flare-Ups in Disability Claims?

CCK Law: Our Vital Role in Veterans Law

In the context of veterans’ disability claims, a flare-up is a temporary worsening of a service-connected condition. This is a crucial concept for veterans to understand, because under federal regulations, the Department of Veterans Affairs (VA) is required to account for flare-ups when evaluating a disability claim.

In this article, you will learn more about what flare-ups are, how VA is supposed to evaluate them, what you can do to document them, and what to do if VA has failed to factor flare-ups into your disability percentage rating.

Key points of this article include:

• Under 38 CFR § 4.1, VA must evaluate disabilities based on the veteran’s full range of symptoms, rather than how a condition might present on a single exam day.
• Strong documentation (e.g., flare-up journals, treatment records, nexus letters, etc.) is often valuable in ensuring VA accounts for flare-ups when rating a disability.
• Should VA fail to take flare-ups into consideration when evaluating a veteran’s disability, it may serve as grounds to file an appeal and even earn a higher rating.

What Is a Flare-Up in the Context of VA Disability?

“In the context of VA disability, a flare-up is a temporary worsening of a service-connected condition,” says Bradley Hennings, partner at CCK Law. “For example, a veteran with a knee injury might walk fairly well on most days, but experience severe pain, swelling, and limited mobility during certain periods. That temporary but recurring worsening—that’s a flare-up.”

Flare-ups can vary in frequency, duration, and severity, but often significantly affect a veteran’s ability to function at work or in daily life. Mental health conditions like PTSD can also produce flare-ups that intensify symptoms during certain periods.

Flare-ups are common across many types of VA disabilities, particularly musculoskeletal conditions such as:

• Back pain
• Joint conditions
• Orthopedic injuries

Learn more about VA’s regulations surrounding flare-ups by checking out the video below, where CCK Law Partner Bradley Hennings dives into the essentials:

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Do Flare-Ups Matter to VA Disability Claims?

Yes, they do. VA is legally required to account for flare-ups when evaluating a veteran’s disability claim.

“Under 38 CFR § 4.1, VA is required to evaluate a disability based on its complete picture, including how it behaves over time,” says Bradley Hennings. “That means periods of acute exacerbation—or ‘flare-ups’—must be factored in.”

More specifically, under 38 CFR § 4.2, VA is required to interpret exam reports “in the light of the whole recorded history” instead of just one compensation and pension (C&P) exam or examiner’s findings. Regulations 38 CFR § 4.45 and 38 CFR § 4.59 govern VA’s interpretations of exam reports with regard to joints and painful motion, respectively.

The Court of Appeals for Veterans Claims (CAVC) addressed this issue in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the Court held that a VA examiner must estimate how much a musculoskeletal condition worsens during flare-ups (even if the veteran does not have a flare-up during the exam) using the veteran’s reported history and other evidence.

In an earlier case, DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court established that, when rating joint and spine conditions, VA is required to consider functional loss due to factors such as pain, fatigue, and weakness — specifically during repetitive use or flare-ups — rather than just from a range of motion.

In other words, a one-time snapshot of a veteran on a good day is not a legally sufficient basis for rating a condition that is prone to flare-ups. This is a critical protection for veterans whose conditions fluctuate.

Veterans should be aware, however, that under Mitchell v. Shinseki, 25 Vet. App. 32 (2011), pain alone is not sufficient to warrant VA granting a higher disability rating unless the pain actually causes additional functional loss.

What Does 38 CFR § 4.40 Add for Musculoskeletal Conditions?

For musculoskeletal disabilities specifically, 38 CFR § 4.40 requires that VA account for functional loss due to pain, including pain that limits normal movement of the affected body part. This means VA should consider not just the range of motion observed during an exam, but also how pain during flare-ups limits function in everyday life.

VA examiners are supposed to note the extent to which a condition’s range of motion is reduced due to flare-ups and their impact on orthopedic ratings. Failure to do so may result in an inadequate exam and grounds for appeal.

What Evidence Does VA Require for Flare-Ups?

VA does not require one specific type of evidence to prove a flare-up. Instead, VA weighs the record of evidence a veteran builds over time. Four types of evidence do most of the work in flare-up cases.

The strongest flare-up records combine at least two of these sources. A journal paired with a treating physician’s notes shows both what the veteran experiences and how a medical provider assesses it.

“The bottom line is: flare-ups are not just how you feel on a bad day,” says Bradley Hennings. “They are legally relevant evidence in your VA claim. Make sure VA is getting the full picture.”

Want to know what VA looks for in a nexus letter? Watch VA-Accredited Claims Advocates Nicholas Briggs, Brandon Paiva, and Alexandra Cerrone discuss the details:

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What if VA Ignores Flare-Ups?

If VA rates a veteran’s condition without considering their flare-ups, it may be grounds to file an appeal and potentially earn a new rating. This can happen when:

• The C&P examiner failed to ask about flare-ups and only rated the veteran’s baseline condition.
• VA’s rating decision does not mention or address evidence of the veteran’s flare-ups.
• The rating assigned reflects a one-time snapshot rather than the full range of severity for a veteran’s disability.

In these situations, veterans have several options for appeal, including filing a Supplemental Claim with new evidence documenting their flare-ups, requesting a Higher-Level Review, or appealing to the Board of Veterans’ Appeals (BVA).

Alternatively, veterans might consider consulting a VA-accredited representative to help them evaluate their options and determine an appropriate course of action.

Did VA Ignore Your Flare-Ups? Contact CCK Law

Frequently Asked Questions

Do flare-ups have to be documented by a doctor to count?

No, flare-ups do not necessarily have to be documented by a doctor to count toward a VA disability claim. While a doctor’s documentation usually carries the most weight, personal statements, buddy statements, and a detailed flare-up journal can all serve as compelling supporting evidence to VA. Often, the strongest disability claims combine multiple types of evidence to form a full picture for VA.

What if my flare-ups are not visible at a C&P exam?

In a situation like this, some solutions veterans can use include: Telling the examiner how their condition behaves when it flares, submitting a personal statement to VA describing their symptoms during flare-ups, and asking their treating physician to provide a medical opinion that conveys the severity and frequency of the flare-ups.

Are flare-ups relevant to all types of VA disabilities?

While flare-ups are particularly significant for musculoskeletal conditions (e.g., back pain, knee injuries, joint conditions, etc.) as well as mental health conditions like PTSD, these are not the only disabilities flare-ups apply to. Others might include gastrointestinal, respiratory, cardiovascular, and neurological disorders.

Veterans should bear in mind that the legal standard under 38 CFR § 4.1 applies broadly: VA must consider the complete picture of any service-connected disability, whatever its nature.