Increased VA Claims for Orthopedic Conditions: What Veterans Need to Know
CCK Law: Our Vital Role in Veterans Law
Orthopedic conditions (i.e., conditions that impact a veteran’s bones, muscles, joints, or connective tissues) often worsen with age, which makes it critical for veterans to know how to successfully increase their orthopedic disability rating.
While range of motion is a key factor in the rating criteria for orthopedic conditions, it is not the only measure by which the Department of Veterans Affairs (VA) evaluates these claims. Depending on the veteran’s claim, they may be able to secure an increased rating based on other symptoms, too.
Key points of this article include:
- Veterans may be able to argue for an increased VA claim for orthopedic conditions based on symptoms like loss of function or painful movement.
- To earn a higher disability rating for a condition, veterans can typically file an appeal, file a new claim, file for TDIU, or file for secondary conditions.
- While many of the facts in this article apply to orthopedic claims, they might also be used when navigating increased claims for other conditions.
How Do I Get an Increased VA Rating for Orthopedic Conditions?
Veterans can get increased VA ratings for orthopedic conditions in two ways: either by meeting the criteria for a higher rating in 38 CFR § 4.71a – The Musculoskeletal System, or by demonstrating that their condition leaves them just as impaired as if they did meet those criteria.
“A veteran can be entitled to a higher rating if he has the actual range of motion restrictions or if he has the ‘functional equivalent,’” says Nick Scripter, an appellate attorney at CCK Law. “That gets to the heart of the rating schedule’s purpose: impairment. And impairment can be shown through actual limitation of range of motion, or it can be shown through other symptoms, other manifestations.”
Some of these other symptoms that can demonstrate impairment (and potentially help increase a VA rating) include:
- Loss of function in the affected body part
- Painful movement
- Weakness or instability in the joints
- Greater range of motion than is normally possible (e.g., due to an injury that did not heal correctly)
- Flare-ups
These functional impairments are listed in the Code of Federal Regulations (CFR), which VA follows to evaluate disabilities. They are covered by codes such as 38 CFR § 4.40 (functional loss), 4.45 (joint dysfunction), 4.59 (painful motion), and others.
For veterans seeking to prove one or more of the above impairments to VA, they should consider obtaining forms of evidence like:
- Medical records from a private doctor describing the veteran’s physical limitations.
- Lay statements from friends or family attesting to the veteran’s symptoms or pain.
- Compensation and Pension (C&P) exam results, where VA examiners can evaluate the veteran’s condition firsthand (note that C&P exams are typically scheduled by VA).
Looking for an increased VA claim for orthopedic conditions? Watch CCK Law attorneys Maura Black and Nick Scripter discuss how to earn higher orthopedic ratings:
Loss of Function
Regulated by 38 CFR § 4.40, loss of function is when a veteran has an inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.
Functional loss is essential for veterans to consider when looking for an increased orthopedic claim, as VA is supposed to account for it when evaluating a disability. This loss of function can occur for several reasons, including pain, weakness, deformity, or absence of certain body parts.
“These are all factors that, even if you are able to move your knee through the full range of motion, can prevent you from doing it with regular strength or regular excursion,” says Scripter. “Can you keep it up for as long as somebody without a disability might be able to? If you can’t, that’s what you should be compensated for.”
Painful Motion
Painful motion is regulated by 38 CFR § 4.59, which lists the various methods by which a VA examiner can evaluate a veteran’s pain, as well as the compensation that pain may entitle a veteran to.
“Here in this regulation, they note that when you have pain on movement, you should be entitled to at least the minimum compensable rating for that joint,” says Scripter. “So, even if you don’t meet the range of motion requirements for a 10 percent rating for your knee, if it hurts while you’re moving your knee, you should still have a 10 percent rating for it.”
In other words, if a veteran’s ability to move certain body parts is impaired because of pain alone, they may still qualify for compensation, even if they do not meet the specific range of motion criteria for their condition.
Active vs. Passive Motion
Per 38 CFR § 4.59, when testing joints for range of motion during a C&P exam, VA examiners are supposed to test both a joint’s active motion (i.e., the veteran moving it themselves) and passive motion (i.e., the examiner moving the joint for the veteran). They are also supposed to test weight-bearing and non-weight-bearing motion for the joint, as well.
These tests are intended to evaluate the full range of physical impairment for a joint. After all, some joints can be capable of passive motion but begin to show impairment if the veteran tries to actively move them or put weight on them.
“You might be able to move your knee a good amount when you’re sitting down, and there’s no weight on it,” says Scripter. “But if you’re climbing the stairs or walking down the street, you’re putting all that weight on the knee, and that may be when you have the functional impairment.”
C&P examinations that fail to account for each of these forms of motion could be dubbed inadequate, leading to a new exam and possibly an increased rating.
Want to learn more about how VA rules on orthopedic disability claims? Watch CCK Law attorneys discuss VA’s orthopedic regulations and the court cases that fueled them:
Flare-Ups
Flare-ups are periods where a veteran’s symptoms temporarily become more severe, often leading to increased pain or restricted mobility. Flare-ups are an important part of VA’s rating process, as VA examiners are supposed to account for them in their exam report, even if the veteran is not suffering a flare-up on the day of their C&P exam.
“VA is trying to compensate for what your impairment is when you’re out there in the world,” says Nick Scripter. “So just because you’re not in the VA examiner’s room having one of those flare-ups, VA still needs to know how it impacts you.”
During C&P exams, veterans should be sure to inform the examiner of any flare-ups they suffer, including details about worsened symptoms and how frequently the flare-ups occur.
How Do I File for an Increased VA Claim for Orthopedic Conditions?
There are multiple methods available to veterans to gain an increased disability rating for their orthopedic condition. Some of these include:
- Filing an Appeal
- This is a good fit for veterans who believe the rating they received was too low.
- An appeal must be filed within one year of a decision letter date.
- There are three options for filing an appeal: Higher-Level Review, Supplemental Claim, and Notice of Disagreement (i.e., appealing to the BVA).
- Filing a New Claim for an Increased Rating
- This is a good fit for veterans whose conditions have worsened or who have fallen outside the one-year window for appeals.
- Veterans will likely have to submit VA Form 21-526EZ to begin this process.
- This pathway will likely require the submission of new medical evidence or attendance at a C&P exam.
- Filing for TDIU
- Total Disability Based on Individual Unemployability (TDIU) is intended for veterans whose disabilities bar them from gainful employment.
- This benefit compensates veterans at the 100 percent level, even if their actual disability rating is lower than that.
- To earn TDIU, veterans will likely have to submit evidence that their orthopedic condition substantially impacts their ability to work.
- Filing for Secondary Service Connection
- Secondary service connection is when a veteran’s service-connected disability causes a separate, secondary disability to arise.
- Many orthopedic conditions can lead to secondary disorders that a veteran can potentially earn compensation for.
- This is not a pure increase to a veteran’s orthopedic rating, but rather a whole new rating of its own, which is combined with the veteran’s existing rating.
Did VA Deny Your Increased Rating Claim? Contact CCK Law
If you suspect that VA erred in denying your claim for an increased rating for an orthopedic condition, the dedicated attorneys at Chisholm Chisholm & Kilpatrick may be able to help. Our VA-accredited representatives have helped recover over $1 billion in wrongfully denied benefits.
Call CCK Law at 800-544-9144 or contact us online for a free case evaluation.
Frequently Asked Questions
Can you increase your already-existing VA rating?
Yes, it is fairly common for veterans to increase an already-existing rating. To accomplish this, veterans typically must prove that their condition has worsened and now qualifies for higher rating criteria.
Alternatively, if they believe their initial rating was too low, veterans can also appeal VA’s decision or submit an increased rating claim and provide evidence to VA that they deserve a higher rating.
What qualifies for a VA disability increase?
If a veteran’s condition has gotten worse, or they believe that VA gave them an initial rating that was simply too low, they may qualify for a disability increase. This typically requires the veteran to prove that they meet eligibility requirements for a higher rating, or that their disability functionally impairs them to an equivalent degree to these criteria.
To begin the evaluation process for a higher rating, veterans will have to submit a request to VA. Options include filing for an appeal, filing an increased rating claim, filing for TDIU, or filing for secondary service connection.
How do I add additional conditions to my VA claim?
To add conditions to a VA claim, veterans will usually have to complete and submit VA Form 21-526EZ, or log in to their VA.gov account and begin a “new condition” claim. The conditions a veteran adds could be primary, secondary, or presumptive, among a few other options.
