What is Degenerative Disc Disease?
Degenerative disc disease, also known as osteoarthritis of the spine, usually occurs in the lower back or neck. Specifically, it is a condition where the discs between vertebrae lose cushioning, fragment, and herniate. Degenerative disc disease is often accompanied by varying levels of pain and can also result in numbness and tingling in the upper or lower extremities in some cases.
How Does VA Rate Degenerative Disc Disease?
VA rates degenerative disc disease under 38 CFR § 4.71a, Schedule of Ratings – Musculoskeletal System, Diagnostic Code 5003. If degenerative arthritis is established by X-ray findings, the veteran’s condition will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. However, if the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent will be applied for each major joint or group of minor joints affected by limitation of motion. Finally, in the absence of limitation of motion, a veteran’s degenerative disc disease will be rated as follows:
- 10% – with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations
- 20% – with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups
When assigning a disability rating based on the severity of symptoms, VA must take into account both anatomical damage and functional loss. Importantly, limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.
Secondary Service Connection for Degenerative Disc Disease
Degenerative disc disease can also arise as the result of an already service-connected condition. For example, if you have a service-connected knee condition that causes you to favor one side when you walk, you might develop an altered gait. This uneven shift in weight may then contribute to complications in your lower back. In that way, your degenerative disc disease is due to your service-connected knee condition and therefore warrants secondary service connection.
Barriers to Service Connection for Degenerative Disc Disease
Degenerative disc disease is known to be a condition that develops and progresses over time. When denying service connection for degenerative disc disease, VA often relies on an examiner’s finding that the veteran’s condition is due to normal wear and tear and the natural progression of aging rather than their time in service. However, if VA examiners arrive at this conclusion, they must provide adequate rationale to support it, otherwise VA should not rely on it for adjudication purposes. It is not enough for the examiners to simply say that a veteran’s degenerative disc disease is due to natural progression and aging. Instead, they must also explain why it is not due to other factors, such as service.
Extraschedular VA Disability Ratings
There are times when VA can rate veterans outside of what is included in the rating schedule. Extraschedular ratings are assigned when the rating criteria for a veteran’s disability does not accurately reflect their level of disability. Usually this happens when a veteran experiences symptoms or limitations that are not considered by the rating schedule. Therefore, VA must determine if the veteran is eligible for a higher rating than the schedule sets forth. This might be the case for a veteran’s degenerative disc disease, as the highest schedular rating under Diagnostic Code 5003 is only 20 percent.
To receive an extraschedular disability rating under 38 CFR § 3.321(b)(1) for degenerative disc disease, the following requirements must be met:
- A veteran must show, and VA must find, that “the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization” that make it impractical for VA to assign a schedular rating
- The final determination on whether an extraschedular rating is warranted must be made by VA Undersecretary for Benefits or Director of Compensation Service
Extraschedular disability ratings are granted on a case-by-case basis and are very specific to each veteran and his or her disability picture.
Call Chisholm Chisholm & Kilpatrick LTD for Help with Your VA Disability Claim for Degenerative Disc Disease
If you filed a claim for degenerative disc disease and were denied benefits, Chisholm Chisholm & Kilpatrick LTD may be able to help you appeal your unfavorable decision. For a free case evaluation, call 800-544-9144 today.