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Orthopedic Ratings at the VA

Orthopedic disabilities are those that impact the musculoskeletal system.  Common orthopedic conditions impacting veterans include low back and knee disabilities, and those impacting joints. To learn more about Orthopedic and Musculoskeletal Disability Ratings, click here.

 

VIDEO TRANSCRIPTION

Robert: Good afternoon! This is Robert Chisholm from Chisholm Chisholm & Kilpatrick. With me today is Barb Cook and Christian McTarnaghan, and we’re going to be talking about orthopedic ratings. But before we get into orthopedic ratings, there was some news this week, and I thought we should just quickly comment on it. The President’s nominee for Secretary of the Department of Veterans Affairs has withdrawn his name and I just want to emphasize to all our viewers that that does not necessarily have an impact on day to day claims because there’s an entire team in place to handle the benefit claims and also to help on the healthcare end of things. It just means for a little bit–for a while longer, we’re going to be without a Secretary but there’s an acting Secretary in place. And with that, why don’t we first talk about–when we refer to the word orthopedic, Barb or Christian would one of you sort of explain what we’re referring to when we talk about orthopedic?

Christian: Sure. Yeah, it’s just a more complicated way to refer to a joint. Orthopedic disabilities are problems with knees, problems with your back. Low back is a really common orthopedic disability especially that we see in the veteran community.

Robert: Okay. So, when we’re talking about service connection for orthopedic conditions, give me sort of the general scoop. How does the VA handle service connection?

Barb: Typically or historically, rather, the VA has required a diagnosis of a condition, say degenerative joint disease of the back, an event or symptom or diagnosis in service or during a presumptive period which typically was one year after service for some conditions including arthritis. And then a nexus, that’s the VA’s term for a link, a connection between the diagnosis and the event, symptom or diagnosis in service. Recently, however, the Federal Circuit has ruled that the Federal Circuit Court of Appeals has held that pain without a diagnosis can also be service connected. And the name of that case is Saunders.

Robert: So before we jump in to Saunders,–

Barb: Sure.

Robert: — If I could stop for a second to sort of say, so the Federal Circuit is an important part of the appeal’s process in the VA scheme, if you will.

Barb: Yes. Yes. The case is..

Robert: So let’s talk about where they fit into the whole process if we could.

Barb: Sure. There’s– The VA has an administrative process which I think most people are familiar with, where their claim is initially filed at the Regional Office, and that agency makes a decision. And if the claimant was just to appeal, the appeal is still within the Department of Veterans Affairs to the Board of Veterans’ Appeals. If the Board denies any part of the claim, then the claimant has the opportunity to appeal to the Court of Appeals for Veterans Claims.

Robert: And that’s outside of the agency, sort of an independent federal court.

Barb: Correct, correct. And it sits in– There’s just one court, it sits in Washington, DC and it hears the appeals from the Board of Veterans’ Appeals. If the appellant, if the individual receives an adverse –a bad decision, a denial from the Veterans Court from the Court of Appeals for Veterans Claims, then they have in some instances the opportunity to appeal to the Federal Circuit Court of Appeals. That court also sits in Washington, is also separate from VA and it hears only legal issues that are before–that came before the Veterans Court.

Robert: And it’s fair to say that’s pretty much the last stop on the appellant process of the–there is a right to file an appeal to the Supreme Court but they’ve only handled like three or four cases in a 25-year history.

Barb: That is correct, that is correct. They do not hear many appeals from any court and VA is no exception.

Robert: So Saunders is really important because it’s probably the last stop on this particular issue, we would assume.

Barb: We do assume although the government has until the end of the summer actually, to file a petition with the Supreme Court to ask the Supreme Court to overturn the Federal Circuit’s decision.

Robert: Okay. So now let’s talk about why Saunders is so important.

Barb: Saunders is important because for the first time, the Court has recognized or the law now recognizes that a clear diagnosis is no longer a requirement for service connection. And in Saunders, the veteran had pain due to an injury in service, that everyone agreed had happened. And she had that pain, and continuously since then but she didn’t have a diagnosis related to that pain.

Robert: So before it got to the Federal Circuit, the Board of Veterans’ Appeals had denied it for lack of diagnosis? And then the Court of Appeals for Veterans Claims had denied the claim saying, “Look, there’s no diagnosis. You can’t service connect it, there’s no diagnosis.”

Barb: Correct.

Robert: Okay. So this is really a big change.

Barb: It is a huge change. It is a huge change because many, many people have been denied benefits because of a lack of diagnosis.

Robert: So we have a question from Doug, thank you for the question Doug. “Won’t VA be required to update the rating’s schedule to include pain conditions, other than for migraines and Fibromyalgia that already exist?” That’s a really good question. I have a thought about this but I’ll let you go first.

Barb: Yeah. I have to see the question again. Why don’t you just share your thought, Robert?

Robert: All right. So in order for the VA to change the diagnostic code, they would generally speaking, have to go through rule-making. They would have to promulgate a rule and first they have to give the opportunity for notice and comment. So it is possible now that VA, if they in fact decide not to appeal this case to the Supreme Court, could update the rating schedule. I don’t think they’re required to though.

Christian: No. No I agree. They could obviously promulgate a regulation, but I think that the Federal Circuit’s decision in Saunders is a rule in and of itself that VA will not have to apply to the rating schedule as it’s written in determining whether there is a disability, and that is as Barb noted one of the elements of whether service connection is there. So it doesn’t need to be in a regulation in order for it to be binding on adjudicators at VA and the Court.

Robert: So could someone today reopen a claim based upon just having been denied in the past without a diagnosis say they have pain, they had pain in service similar facts, could they reopen that claim now?

Christian: I think that they certainly could try and ask for reconsideration of their claim based on the cha–not the change in the law because the law didn’t change, but the interpretation that Saunders has about what is a disability.

Robert: Okay.

Christian: Doesn’t guarantee a result but it’s certainly possible.

Robert: Okay. So what kind of pain were we talking about in this particular case in Saunders?

Christian: I think we were talking about a physical pain.

Barb: Yes. Orthopedic pain.

Christian: Orthopedic disability, yes.

Robert: Yes, right. Okay. Can we talk a minute about ratings? And how the VA rates orthopedic conditions in general, and then more specifically with reference to pain?

Christian: Sure. So when VA rates an orthopedic disability, the diagnostic codes are largely based on range of motion testing especially when you’re talking about a back disability or a knee disability, but the VA also has to consider these concepts of functional loss. And what that means is, it’s not only how far you can move your back, it’s also whether you have weakness in your back, if you have incoordination in your back or in your knees due to your joint disability. So limitation of motion is just one small part of how VA’s supposed to rate orthopedic disabilities. And then when you get into the knees, there are instability ratings, and sort of other ratings about–other ratings that veterans can get based on the symptoms or severity of the symptoms of the orthopedic disability.

Robert: Okay. And how does pain play into the rating schedule for orthopedic conditions?

Christian: So pain is supposed to be rated on the same basis as actual limitation of motion, that’s how I like to think about it. So if a veteran can move their leg to a certain point, if pain begins before that point and causes functional loss, then the veteran should be able to obtain a rating based on that pain and the functional loss caused by the pain.

Robert: Okay. So how does VA analyze that as a practical matter? And this is one of the things, frankly, that I’ve always found challenging about thinking about orthopedic conditions and how the VA as a practical matter is supposed to rate them.

Christian: Yeah and I think this sort of plays into some of our concepts of the common mistakes that the VA makes. So in my experience, VA tends to rely very heavily on the act–what I think of as the actual limitation of motion. Based on an objective test, how far can this veteran bend with their back? How far can this veteran extend their knee? And by and large, that’s where the conversation and the adjudication ends. But what they really need to be doing, and a lot of errors that we find in our cases, is they need to be looking at the functional loss component that’s required. They need to look how in everyday life is this veteran affected by their disability and does that show us a more severe disability than just how far they can actually bend their knee.

Barb: The other piece of it in terms of pain is that the veteran may be able to move his arm, say this far.

Robert: So that’s like–there you’re talking about range of motion.

Barb: Range of motion.

Robert: Yup.

Barb: And so he may be able to do that even on his own, but if pain starts here or if it hurts to even move it here, then the law says that the VA should rate him for that limitation of movement, not this full extension.

Robert: Because there’s pain on the motion.

Barb: Yes.

Robert: In essence. I don’t mean to simplify it to that extent but that’s essentially how it’s supposed to be done, right?

Barb: Yes! Where pain begins, disability starts.

Robert: Okay. Again this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. We’re talking today about orthopedic conditions, we’re talking about the Saunders decision and pain. And if you have any questions, please reach out to us on Facebook and we’ll do our best to answer them. This is somewhat fluid in the sense that we don’t know exactly how VA’s going to adopt changes as a result of this case, but I’m pretty sure we know what we’re going to do in terms of appealing decisions that don’t properly apply the law. So with that, and you were sort of commenting on this range of motion and I would want to pick up on that because as a practical matter, the way VA rates these conditions is first to get the veteran what’s called a Compensation and Pension Exam or C&P Exam for short. So let’s talk about the compensation and pension exams and some of the challenges that VA has doing them and some of the common errors that we find, if we could.

Barb: Some of the things– VA sets up an examination sometimes at a VA medical center and sometimes through a private physician who has contracted with VA to conduct the exams. VA also has a set of forms for the examiner to complete. And it doesn’t have to be a doctor, it could be a nurse practitioner or a physician’s assistant who does the examination. And since they’re form driven, sometimes not all the symptoms get noted.

Robert: Okay.

Barb: That’s one of the problems. There’s lots of checks on the boxes, these have “Yes/No”, with little room for discussion.

Robert: So it’s a–some people have described it as a ‘check-off’ exam?

Barbara: Yes.

Robert: You check a box with no room to explain at all.

Barbara: Right, exactly. So one of the things that I like to tell clients is first, when you go to the exam, be absolutely honest about everything. Don’t exaggerate your symptoms, but don’t understate them either. Sometimes when you go into an exam, the doctor may say, “So, how are you today, Mr. Chisholm?”, and because you’re a polite person you say, “I’m doing fine, thanks” and that can show up in an exam as you’re not having any pain or any problems due to your condition. But it’s not a social occasion, it’s an examination. And I’m not saying be rude, absolutely not. But just be aware of what the situation really is. I also advise clients to not only be honest during the exam, but to then take notes immediately after the examination about what happened, what things the veteran thinks the examiner did not ask about even though that might be critical to the person’s case. They can be kind of nerve-wracking experiences and you don’t always remember to say things at the examination unless you’re asked specifically about them.

Christian: And using Barb’s example, in my practice, I see the VA examinations are very good at getting this rating, which is how far can the veteran actually or I always think of it as anatomically move their arm. But what they don’t do so well is noting that pain begins here. And without that information, the Board doesn’t have a full picture of the veteran’s disability–

Robert: Right.

Christian: –and how they should be rated. Because as Barb noted, where pain begins, so does disability.

Robert: And we’re using just the arm by way of example.

Christian: Of course.

Robert: Also applicable to the back.–

Christian: It’s just easier.

Robert: –and the knee and so forth.

Christian: Absolutely. It’s throughout all the orthopedic joint disabilities.

Robert: So Barb, you were taking about the veteran taking notes. Assuming the veteran does that, what would they do with those notes after the exam?

Barb: They should give them to their advocate or just send them in to VA to make sure that VA knows that there were gaps in the examination, that there were things that were not addressed.

Robert: So they could just mail it and it would become part of the claims folder that the VA would have to consider in making its decision?

Barb: Correct.

Robert: Okay. So the other question I have is, when the compensation and pension examiner does the exam, do they at any time review the file beforehand or maybe after? And are they required to do that?

Barb: They are not required actually, to do that. Sometimes they do, sometimes they don’t. Sometimes they just indicate that they have checked all the records that VA has on their computerized system. The question for the examiner is, and for the VA when it reviews the examination report, is whether the examiner was aware of all the facts–relevant facts in the veteran’s situation.

Robert: Okay. We have another question from Doug. Many people already have faulty ratings based on VA’s inappropriate use of analogous rating codes for pain. Many are 100% disabled by Social Security, and 10% by the VA for the exact same pain condition. How would you advise people to proceed under this circumstance? So let me first say that decisions of the VA and decisions of Social Security, are two distinct federal agencies that rate disabilities differently. And one is not binding on the other. That is if VA makes a rating for 100 percent service-connected disability and – Social Security is not required to follow that. Vice versa if Social Security makes a finding that someone’s disabled, VA is not required to follow that. So with that as sort of the overview, let’s hit the question directly. So if someone is found 100% disabled for say, a back condition and let’s just take that as–because this is where I could see this happening, and they have 10% rating for the exact same problem for VA, is there anything they can do?

Christian: Make sure that if–make sure that VA is aware of the Social Security determination and the documents that the Social Security Administration produced in coming to that finding. Whether it be different types of medical examinations, or any sort of adjudicative determination and make sure that that’s in the record.

Robert: Okay. Barb, do you have any other thoughts about this?

Barb: Well the–related to what Christian was saying, it means having a pending appeal. In other words, ask–actually asking VA to increase the rating based on the Social Security information. At this point, that requires a specific form to be completed and sent to VA and they can just reference the Social Security documents or they can send them in. But in terms of–following-up on your point, Robert, about Social Security and VA being two different systems, that’s absolutely true. On the other hand, the Social Security information is clearly relevant–

Robert: Yes.

Barb: –because Social Security–both Social Security and VA are assessing whether a person is basically able to work. They’ve–They have different words for it but they are still assessing whether the person is able to work. Social Security disability, of course, only grants benefits if the person is totally disabled, but VA does not. VA does percentages. So in the scenario that you suggested, where the person has the exact same condition, service connected for this condition and he’s getting Social Security benefits for that exact same condition, then there’s a pretty strong argument that could be made that a 10% rating is underrating the person’s condition.

Robert: And so, I’m going to talk a minute and go down sort of a different path, if I could and pivot a little bit here. And let’s suppose it’s a 20% rating for the back condition for the sake of this hypothetical, and the person is getting Social Security disability for that same back condition. There is a process where one could file for total disability based upon individual unemployability, TDIU, even though it’s only a 20% rating. And use the Social Security decision as evidence of the fact that they can’t work due to the same condition. And that would be one way to get the rating up because it’s really hard to get a schedular 100%, even a 40% rating for a back condition.

Barb: That’s absolutely right.

Christian: Absolutely right.

Barb: And again, Social Security’s focus on what constitutes substantially gainful employment has a direct application to VA’s assessment of whether the person is unable to work due to a service-connected disability.

Robert: Okay. So, what are some of the common mistakes? Going back to orthopedic conditions, you mentioned a few earlier, are there any others that you want to talk about that you see? Not discussing the pain is one.

Christian: Sure, yeah. Also flare-ups. Pain in orthopedic disability, in joint disabilities as anyone who’s ever suffered from them is not constant. It gets worse at certain times, it gets worse after you do certain things, and a lot of clients I have represented in fact, sometimes it can be completely debilitating, requiring laying down, sitting down, stopping what they’re doing. Flare-ups are something that the VA examiners and the Board must consider, but I find it largely to be overlooked. So another common mistake I’d see is the failure to consider the severity, duration, how frequently a veteran suffers from flare-ups.

Robert: What about the effects of medication? So if someone’s taking medication and it prevents the pain from being evident? How does that work in the rating schedule?

Christian: Well, that’s not–it’s difficult because it’s hard, I think to always assess the effect of the pain. But it’s not supposed to be considered. I think that’s the main point. If someone uses pain medication and it lessens the disability pursuant to the Court’s decisions, it’s not supposed to be considered.

Barb: But the other side of that, is that if the pain medication itself causes problems, for example if it makes the person drowsy or has—or means the person has trouble concentrating, then that is an effect that should be separately rated and taken into account in assigning the proper rating for the disability.

Robert: If one were for example addicted to an oxycodone or something like that, would that be something that could be secondarily service connected?

Barb: Yes, that definitely–but you don’t–so yes, but it doesn’t have to be–the impact doesn’t have to be that severe for the consequences of pain medication to be taken into account.

Christian: And just another note about the examinations, tell the examiner that you’ve recently had an injection in your knee to stop the swelling or the pain, or that you will take some sort of opiate or other sort of pain medication. Be open with the examiner in terms of what medications you’re taking at that time.

Robert: Okay that’s good. Again this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. We’re talking today about orthopedic conditions, and talking about pain. If you have any questions, again, please reach out to us. We’ve had a few so far on Facebook. So talk to us a little about separate ratings and the concept of pyramiding, two sort of challenging topics in the VA rating world.

Christian: Sure. So I–Barb brought up a great example of using some sort of medication that creates another effect, but it doesn’t only have to be that hypothetical. Separate ratings can happen when a disability is either–well this is secondary service connection, maybe I should start with just the separate ratings.

Robert: Yeah.

Christian: So separate ratings happen when there’s another distinct manifestation of a disability that’s not currently rated.

Robert: Okay. Can you give me an example of that?

Christian: Sure. So a knee is an easy example. I have a lot of knee cases. So a veteran will be rated for limitation of motion of their knee, and they would also be entitled if there’s instability for a rating for instability. So it’s one singular disability, a knee joint disability that has two separate manifestations.

Robert: And each manifestation–

Christian: Absolutely.

Robert: –could get rated separately?

Christian: Yep. They may get a 10% rating or something of that effect for the limitation of motion, and then another 10% rating for slight instability of that knee.

Robert: All right. What’s an example of pyramiding? Because pyramiding is not allowed.

Christian: No, it is not. So, pyramiding would be two separate manifestations of– we’d been talking about pain a lot so just–let’s just continue to use pain. If you have a rating in your–I’m going to use–for your back, just because you have pain in your back, you can’t get another rating just solely for the manifestation of that pain.

Robert: Okay. If you’re hospitalized for an orthopedic condition, let’s say you have surgery and you’re out for like two months, and you’ve been hospitalized for two months, what happens in that particular case?

Christian: So from my understanding of how it works, you basically have 21 days at the rating that you currently have, and on the 22nd day, you’re entitled to an increased rating for the time that you’ve been hospitalized, a temporary 100% rating.

Robert: So after 21 days, and very few people by the way are hospitalized for this long anymore?

Christian: Yes.

Robert: But after 21 days, you would be bumped up to a temporary 100% until presumably you were discharged again?

Christian: And then the VA would reconsider what rating you should have after the discharge.

Barb: If you ask VA to do it. It doesn’t happen automatically.

Christian: If–That’s a very good point.

Robert: It doesn’t, even when it’s at a VA facility and they have the medical records that explain all of that to them. You’re absolutely right, that’s a good point. Let’s talk a little bit about secondary conditions resulting from orthopedic conditions. What are some of examples of some secondary conditions that we might find?

Barb: Well, there could be another orthopedic condition that results from the primary condition.

Robert: Due to overuse.

Barb: Due to overuse for example. So that’s one relatively common I think secondary condition. You mentioned earlier, being addicted to an opiate or something that you need to take for the pain exactly, so that’s another example. You can also have secondary conditions because of the consequence of something that happens. For example if you have a service-connected condition that causes you to fall, and then you break your arm then–and have a disability resulting from that you can get secondary service connection for that. The arm itself wasn’t injured in service but it was related to the service-connected condition.

Robert: Right. I think those are really good points. And one of the things that I meant to hit when we were talking about Saunders, but it also applies here is the importance of an–and I wrote it down, lay evidence, because in Saunders, there was testimony about the pain in service, right? And there was–and it was lay testimony, and so it’s really important for either the veteran or other witnesses to talk about it. We’ll get to that question, there’s a question from Ashley, we’ll get to it in one second. But I want to finish this thought about lay evidence. It’s really important for the veteran and other witnesses to describe the extent of the pain, the loss of motion, all of these things. And as you were just saying, as well, lay evidence can be critical in these kinds of cases now.

Barb: It absolutely can. And one of the problems in cases with lay evidence in particular is that the witness may be describing something that happened years ago. And so it’s important for the person to explain why they remember it. The occurrence of pain can be traumatic, that’s a good reason why you might remember something that had happened 10 or 15 years ago.

Robert: Absolutely right.

Barb: Personalities can change as a result of pain, that’s another good reason for people to be able to remember these sorts of things.

Robert: We got a question from–it’s from Ashley, and she’s asking, “Are secondary conditions compensated?” That’s a great question.

Christian: Absolutely, they are. Yeah. So if a service-connected disability causes or aggravates, makes worse a non-service-connected disability, that would be entitled to service connection, just as if it were incurred in service, as if it were directly related to service. So they’re compensated in the same exact way.

Robert: And so you get additional benefits obviously–

Christian: Yep, absolutely.

Robert: –and a higher rating as a result of that presumably?

Christian: Mm-hmm.

Robert: Okay. Are there any last thoughts, anything that we haven’t covered that either one of you would like to cover about orthopedic conditions?

Christian: I just would like to make one more point about the lay evidence because it’s critically important. How long can you stand? How long can you walk? How does this disability affect how you live? That’s really important information for the VA to have so they can consider that concept of functional loss and impact on the joints in their analysis of which rating is most appropriate.

Robert: So and just to sort of flesh this out a little bit, you could say those things during an exam?

Christian: Mm-hmm.

Robert: You could write it down on a piece of paper and mail it into the VA?

Christian: Yup.

Robert: And you could have a hearing.

Christian: Absolutely.

Robert: Either at the Regional office at the Board and you could testify about all those things. And we recommend highly, getting that information in the record because many times unfortunately those records are not considered and that becomes a basis for an appeal to Court, for example. And because they missed those kinds of lay statements.

Christian: Yup.

Robert: That can be critical to winning cases.

Christian: Yeah.

Robert: Okay. If there are no further questions, we’re going to be signing off. Again, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. With me was Barb Cook and Christian McTarnaghan. Thank you all very much for listening and if you have any other questions, please follow us on Facebook and we’ll get to your answers there. Thank you!

[end]

 

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