- Service connection for back pain and back conditions
- Example of a service-connected back condition
- Common back conditions & secondary service connection for conditions related to back pain
- VA ratings for back pain and other back conditions (functional loss)
- Viewer Q: Do you need constant, daily pain to reach the 10% level for back pain?
- VA C&P exams for back pain (C&P = Compensation & Pension)
- What to do if your C&P exam results are unfavorable
- Viewer Q: Back pain resulting from a service-connected knee condition
- Common mistakes VA makes in back disability claims
- Viewer Q: Who do you ask for a copy of your VA exam? How soon can you ask for it?
- Secondary service connection resulting from a service-connected back condition (e.g. depression)
- If you go to the hospital for back surgery or pain…
- How to avoid “pyramiding” with a secondary service connection claim
- What’s the highest rating you can get for a back condition?
- VA unemployability for back pain (TDIU)
- Viewer Q: What if your doctors don’t want to write a nexus letter?
Christian: Good afternoon and welcome to another edition of Facebook live from Chisholm Chisholm & Kilpatrick. My name is Christian McTarnaghan, I’m an attorney at CCK and today I’m joined by Alyse Galoski and Courtney Ross, who are also two attorneys who practice at the firm. So today we’re talking about Back Conditions, so we’re going to be a little bit more specific than we might be in some of our other Facebook lives but lots of veterans have back conditions and so we wanted to be able to provide some information about that for you.
So, the first step in every case, let’s jump right in, is service connection, right? So Alyse, you maybe want to describe broad strokes, what service connection is? For those viewers who might not know.
Alyse: Sure, so service connection is basically the classification that you get once VA agrees that your condition is related to service, you need to establish service connection before you can start receiving benefits from the VA.
Christian: So, service connection, there are three elements, right? So, the first element is in service occurrence, right? What is that mean?
Alyse: So, it’s basically any injury, any illness or an event that happened in-service with back conditions, it’s usually an injury but it could also just be pain that you started to notice in your back in-service, both of those two examples would qualify.
Christian: All right so that’s one of the three, and then we kind of jump ahead a little bit, the second is current diagnosis, right? So, you want to describe a little bit what that means? It’s more complicated than you might think.
Alyse: It is, it is. Because there are some changes in VA law recently but current diagnosis as an example of that is if you’re diagnosed with arthritis. But you don’t actually always need to have a diagnosis now to get service-connected, there is a new case called Saunders v. Wilkie which established just that.
So you could just have back pain that causes functional loss, that could qualify but basically think of it as a current condition, a current disabling factor that you have, it is definitely easier if you do have a disability but you don’t technically need one. I could say diagnosis but you don’t technically need one.
Christian: All right, we have the in-service occurrence, we have the current disability, what’s the last element?
Alyse: Last element is the nexus, so that’s going to be what ties those two things together. Typically, you will need a medical document that is saying that you– what happened to you in-service is related to what you have now.
Christian: All right, so we’ve sort of talked about the elements of service connection, Courtney, do you want to put it in like a real-world example for us? You want to give us a hypothetical of a fact pattern that might lead to service connection for someone’s back condition?
Courtney: Sure, absolutely. So in a lot of cases we see where a veteran has actually experiencing a specific injury in-service so, maybe the veteran works on airplanes, is some kind of mechanic which means he or she is climbing up on wings of an airplane. They may have fallen off the wing resulting in a back injury in-service perhaps, there’s documented complaints of back pain in-service or just documentation showing this injury.
Fast forward to today, the veteran still has complaints of back pain or an actual diagnosis of a back condition and then the veteran is able to obtain either a VA examination or perhaps a private medical opinion that shows that that the current back diagnosis or back pain is due to that injury that he or she suffered in-service of the fall off the wing of the airplane.
Christian: So those are some perfect facts so in our practice they don’t ever quite fit in that box but that would be really great. So we’re talking about back conditions in general, right? So what type of back conditions? Alyse you mentioned arthritis, any other common back conditions that people might have from their service?
Alyse: Yes, you could have maybe like a muscle sprain or a lumbar strain or as we had said before, you could just have back pain. That doesn’t have a diagnosis.
Courtney: I would just add to about service connection, veterans can also be service-connected for back conditions that may be not are directly related to service, so if you can also be service-connected for back conditions that develop secondary to already service-connected conditions. So just to give you an example to put it into context.
If you have veterans whose knees are already service-connected for disabilities and maybe those, the knee condition results in the veteran having to favor one side which means, they have an altered gait and they’ve had the altered gait documented for many years. Sometimes that can lead to the development of a back condition and the veteran can also get service connection for that condition, secondary to the already service-connected knees.
So even though the back isn’t due to an in-service event because it’s due to a disability that is related to the veteran service, service connection is still warranted.
Christian: All right so, once you get service-connected, the next thing that VA is going to look at, hopefully, right? Is how bad is your back? How severe is it? So Alyse, you want to start off talking a little bit about how VA would rate a back disability?
Alyse: Yes. So typically, what they will do is they’re actually look at how your back disability limits your range of motion. So, what is usually going to happen is you’re going to attend what’s called a VA examination or a compensation and pension examination, and they measure how far you can bend your back.
Christian: With the thing called the goniometer, right?
Christian: Is it literal like, full capture device that’s just literally how much you– anyway.
Alyse: Yes. There are diagrams and it does, it looks just like a math test almost, so they measure how far you can bend forward, no matter how far you can bend from side to side. They actually have a rubric that they use, based on how far you can bend, to see how severe they consider what your back disability is. It’s not the only way they’re supposed to rate your back but that is the main way they rate how severe your back disability is.
Christian: So, I think you have the rating criteria right in front of you.
Alyse: Yes, I do.
Christian: So, what would it be for a 10%? How limited would a veteran’s range of motion have to be, in order to get a 10% rating? I always have to look; I don’t know it off the top on my head sort of my question.
Alyse: It is like a math rubric so, you’re looking at forward flexion of the back greater than 60 degrees, so again that’s not greater than 85 degrees. So again, that’s how far you can bend forward. There are also, in the same diagnostic codes has to do with your neck which is not what we’re going to discuss today but just to be aware of, it’s the same diagnostic code.
Then they combine your ratings based on how far you can move this way and move that way, there’s a combined range of motion for the back greater than 120 degrees but not greater than 235 degrees. Or they’re looking at your muscle spasms, whether you’re guarding, whether you have localized tenderness, whether you have an abnormal gait.
So, there’s a lot of things that actually go into a 10% and the reason why we are reading off of this, is because it’s so technical. But another thing that you could consider with a 10% is, it is also the minimum compensable rating for a back disability. So based on VA law if you have back pain, even if it doesn’t prevent any type of range of motion, under the regulations you are eligible to get a minimum compensable rating so long as it’s service-connected which is 10% for the back. So that’s another avenue to get at least a 10%.
Christian: All right, so you talked about how just having pain and back disability can get you 10%, the regulation is Section 4.59 and you’ve also talked about how if you literally can’t move your back within those certain degrees you’ll be able to get a 10% rating.
Christian: Courtney, what other ways can a veteran get rated for their back disability?
Courtney: Yes. So pain is an important part of the actual measurement of the limitation of motion, so they use forward flexion a lot as Alyse just covered. So maybe a veteran has forward flexion that fits that 10% rating so greater than 60 degrees but not greater than 85 degrees so they can actually physically bend forward that much. However, they get pain before they actually go that far, so the 20% rating here says that, it’s forward flexion greater than 30 degrees but not greater than 60 degrees.
So if the veteran could bend far enough that fits the 10% rating but when they– excuse me, when they bend forward they get pain that fits within the measurement for the 20% rating, they’d actually be entitled to that 20% rating, not the 10%.
Christian: Absolutely and that’s a concept referred to as functional loss, so people–veterans out there who have gotten rating decisions or Board decisions, they might see the concept of functional loss and that’s what’s trying to be elicited by where pain starts, right? You’re supposed to get rating that’s consistent with how anatomically far you’re able to move your back but also how your functional abilities are limited, based on your back disability.
So, you also alluded to the fact that they’re supposed to look at functional loss, one of the common mistakes that I think we see in rating decisions, in some of the Board decisions we look at, is the VAs failure to consider that functional loss in going solely off how far a veteran can literally move.
Christian: So I’m just going to take a second to answer the question, thank you for the question, Roman. Do you need constant daily pain for a 10% rating? Who wants to take it?
Alyse: No, you don’t. But you do need to have it recorded it doesn’t need to be in the evidence. But that– again, that can be through a lay statement it doesn’t need to be objectively confirmed as far as for, you know the minimum compensable under 4.59. If you’re talking about whether if you don’t have a diagnosis, you do need to be able to show that that pain causes some type of functional loss, however, you can’t just say, you have pain, you have to say, you have pain and it prevents some type of earning capacity. Even if it just makes it a little bit difficult to concentrate at work that’s an example, but just saying, pain isn’t enough. As far as how often it is, there’s not a strict requirement that it has to be every day.
Christian: So if I got a case where a veteran was out of zero and they said, “I have pain in my back.” That would be in my interpretation, a problem with that decision for them to be at a non-compensable rating with let’s say they have arthritis in their back, that will be an issue.
Alyse: Yes. If you have pain that’s causing some type of functional loss they need to give you the minimum compensable under 4.59.
Christian: So we talked about some of the common mistakes, I think we’re going to come back to that but one thing that I wanted to touch upon or wanted us to touch upon before we get too far into that is compensation and pension examinations. Because C&P examinations are incredibly important in VA law, incredibly important in how VA will rate your disability.
So do you want to start and talking a little bit about, Alyse, how compensation and pension examinations work? Then Courtney, do you want to, after that talk about what a veteran can do if they get a VA examination they don’t like?
Alyse: Yes, so as far as what they test?
Alyse: Sure. So like I said there are going to test your range of motion, they might also ask you some questions about how it affects you from day to day. They are supposed to be asking you whether it causes a pain on weight bearing, there are some tests that they’re supposed to be doing as far as that weight bearing sometimes that doesn’t happen, but it should.
They should be asking you to do it both, range of motion after just one single range of motion and they’re supposed to ask you to do after three repetitive motions. They are also—it’s supposed to inquire as to how– if you get flare-ups of pain and how those flare-ups contribute to your functional loss. Say that, when you’re having a flare-up, you really can’t move at all, that’s supposed to be noted in the examination.
Like I said, sometimes it’s not but it is supposed to be noted. So usually it is both an interview style along with them actually having you do physical tests, it’s typically not somebody that you’ve ever met before, so it is important to when they ask you about your pain to be truthful about it, don’t exaggerate it but also don’t diminish it because this is what the Board is going to use, to really rate your disability.
Christian: So Courtney, let’s say, you go to an examination and you don’t like the way the examination has come out, maybe for various reasons. Do you want to speak to that a little bit?
Courtney: Yes, absolutely. So there’re a few things you can do in response to an examination that you find to be unfavorable to the case. So one, as Alyse just went over, there’s a number of things that VA is supposed to be recording and documenting within these VA examinations.
Most of the time they actually have a VA form that they’re using and checking off the information, so I think the first step is to one request a copy of the examination if you don’t have one ready and then thoroughly review what’s in that examination and what the examiner has checked on.
Christian: Is VA required to send a veteran a copy of their examination?
Courtney: Not automatically but if you request one they will send you one. So like I was saying, thoroughly review the examination to make sure that the examiner answered all of the questions adequately in the examination and that it adequately represents what you, the veteran, feel like you reported to the examiner.
If you don’t or there’s– maybe the veteran provide– excuse me, the examiner providing an opinion it didn’t really provide any rationale and support of why that opinion is noted there, you can submit an argument to VA noting and outlining for them all of the inadequacies of the examination so maybe they didn’t provide the rationale, maybe they didn’t document anything about the limitations during flare-ups as Alyse covered. Maybe they didn’t adequately document when your pain begins when they were doing the testing on the range of motion.
So those are all things you can look for and submit an argument to VA pointing out. You can also, in response to the examination, go out and get your own development or own evidence to submit in response, so you can consider lay testimony completing a statement or an affidavit to submit to VA that outlines the severity of your symptoms, it can be generally or you can specifically address the VA examination in that if you don’t, again, feel like the examiner adequately or accurately is representing what you reported to them during the examination.
You can also consider getting your own private medical opinion from a treating doctor or just an independent expert in the field, who can review your file and provide or do an in-person examination of you and provide a separate report that you can submit to VA, again, to contradict that negative VA examination. One thing to keep in mind, just in light of AMA or Appeals Reform that was officially enacted back in February.
The rules for when you can submit evidence have changed so it depends on what review options you select and the timing so, not only whether you can or cannot submit evidence but also the timing for if you can, in certain lanes is drastically different than it was before February.
So you want to pay close attention to that and make sure that if you do need to get additional evidence and respond to respond to these examinations that you can do so and that you select a lane option that will allow you to submit that to VA.
Christian: So I don’t want to make Lexa wait any longer. So we have another question. I want to get both of your input on this, “Would having an unstable knee that leads to falling, be classified as a secondary condition for the back in the resulting nerve radioapathy, radiculopathy or some sort of nerve impairment of that?”
So, let’s assume that there’s a service-connected knee condition first. So what do you think Alyse?
Alyse: Yes. So if your knee condition is service-connected, you could potentially get service connection for the back, and then get service-connected for the radiculopathy.
Christian: Sort of like a link, right?
Christian: Service-connected knee connected knee caused you to fall which hurt your back which caused a radiculopathy impairment, which caused the nerve problem, right?
Alyse: Yes, you’re going to need medical examinations that say that make that nexus, that a strong nexus. Something that’s medical unfortunately, your attorney can’t just say that and as the layperson you can’t just say that, it is a theory so long as you got medical evidence to back it up that you could get service-connected for both. You would first have to get the back and then you could get the radiculopathy.
Christian: Anything to add Courtney?
Courtney: No, I think that perfectly sums it up.
Christian: Great. So we’re jumping around a little bit, we started talking about– It’s hard to talk about all of this in isolation. We started talking about some of the common mistakes that C&P examiners may make. Some of the– sorry, common mistakes that VA may make. One of them was not considering functional loss. Courtney, can you think of any others that you see commonly in your practice?
Courtney: Yes. So like you said, one of them not considering functional loss. Another one I see frequently is where there are multiple theories of service connection that the veteran has raised and the examiners been asked to specifically addressed so, as an example direct service connection, which we went over in the beginning and possibly secondary service connection, or service connection through aggravation.
A lot of the times the examiners will be asked to provide an opinion on each specific, specific theory, and they’ll only provide it on direct service connection and they’ll kind of ignore explaining why secondary or aggravation are not possible routes of service connection here. Then oftentimes the VA adjudicators will just say that, “No,” in the examinations and can provide the same type of rationale for denying service connection.
A discussion of causation is not the same as addressing, as possibly aggravation as a root of the theory of service connection—excuse me.
Christian: Sure. And aggravation just means maybe makes it worse or causes it, right? There are two different ways that something can be aggravated.
Christian: Aggravated and causing, aggravated and making worse, right? That’s often something that gets confused or overlooked. Anything else to add Alyse?
Alyse: I think we did touch on it a little bit before but when a big common mistake is both between the Board and on the examiner, not just looking at your literal range of motion but noting where your pain starts on that range of motion, and also the Board noting that and taking that into account, because a lot of Board decisions you’ll see they’ll say, “Yes, he had pain at 110 degrees but he could rotate all the way to 120.” Well, they’re supposed to be stopping in that 110 and those are just examples. So that’s a very common mistake. Another is also in a VA examination. If they say that they’re not going to opine on flare-ups just because it’s based on speculation. A recent case called Sharp has said that they need to provide more information if they need to look back into their records and determine what your real functional loss on flare-up would be, not just say that you’re not undergoing a flare-up during the examination.
Christian: Because you’re not required to have a flare-up during examination, and the examiner is not required to get you into a state of flare, thankfully, during the examination but they’re supposed to consider what your life and your occupational life would be like if you were in a flare-up. That’s definitely worth reiterating because those are the two– Everything that you guys mentioned are some of the biggest errors that you see time and time again.
Alyse: One way that they can figure out how limiting your flare-ups are simply to ask you, they can just ask. Oftentimes they don’t, they just note that you’re not undergoing a flare-up and move on to the next question on the form so that’s an error.
Christian: So we’re circling back to something that Courtney had touched on. Roman has a question again, “So how soon after a C&P exam can a veteran request the notes and who do you ask?”
Courtney: Your local regional office. You can send them a letter or call them up and just request a copy of the examination through them. It’s very shortly after the exam, so as soon as they have a copy of it they should be able to provide you one so I would say just a matter of days.
Christian: Sort of expounding a little bit more on what Lexa’s question brought up is the concept of secondary service connection. So that was sort of a knee condition that leads to a back condition that leads to a neurological condition. If you have a service-connected back condition. What would another example of secondary service connection be, Alyse?
Alyse: Sure. So, a good example is depression. If you’re in chronic pain a lot of people tend or some other type of psychiatric disability. A lot of people tend to actually have some psychological symptoms associated with chronic pain. Now this could be—you actually, your two– it could be two fold, either your back causes depression or it could aggravate a depression that you have already had or PTSD that you already had.
There’s two different avenues but both of those could get you secondary services connected for that psychiatric disability.
Christian: Do you think of another exam– I’m sorry, didn’t.
Christian: Another example, Courtney?
Courtney: I think depression’s probably the one that we see most frequently. Yes.
Alyse: Another example too, I mean it’s similar to what you said with the knees causing the back, the back could cause a cervical spine disability, or if you have to sleep on your back a certain way. That could that mess with your neck or maybe it could mess with your shoulder. So you could get physical disabilities, it doesn’t have to cause the disability so long as it aggravates the disabilities.
Christian: To make it worst.
Alyse: Radiculopathy, I know Lexa already used that example but that’s another one we see that a lot.
Christian: One that you might not suspect is, obviously back conditions can be incredibly painful. There’s some pretty serious medications that can be prescribed for back conditions, and those are very serious medications can cause stomach and GI issues.
Alyse: Yes, and liver issues.
Christian: Exactly. If you have a service-connected back disability and you’re taking– I’m not a pharmacist or doctor but taking something like an opioid, a very strong opioid that can cause other problems and you can be service-connected for those other problems, because you have to take that pain medication because your back disability and that medication is causing a different form of impairment. So that’s something else to keep in mind because it seems, it’s a little bit more separated than some of the other examples we were giving.
Christian: So, Courtney, what happens if you are hospitalized for your back disability? How does that work under VA law?
Courtney: Yes. So, if you’re hospitalized for your back disability for over 21 days, you can apply to VA for what’s called a temporary total disability.
Christian: I’m asking Courtney because she practices on our agency practice, this doesn’t come up that much in my practice so I thought that she’d need the role.
Courtney: Yes. So, you have to be hospitalized for at least 21 days, meaning on the 22nd day is when you would be eligible for this benefit. So, you need to apply for VA– to VA’s specifically for this, they will not automatically just grant the benefit.
So, on that 22nd day you can be granted a temporary total rating of 100% for the rest of your hospitalization and possibly continuing after, depending on how VA assesses the severity of your back condition after discharge. The temporary total rating should be in place for the rest of your hospitalization.
Christian: What happens once you’re released?
Courtney: VA will do an assessment for how severe your back condition is now that you’ve been released and then they’ll reassign you a rating. Again, because 100% is just a temporary rating and that will be specifically indicated when or if they grant you that.
Christian: Great. So, one of the things I forgot to mention but I want to mention quickly before we move on is, secondary service connection, you always need to be thinking about this concept of VA law called “Pyramiding,” right? So, if you have a back disability and it causes depression, but you’re already service-connected for depression. Let’s assume that it doesn’t make your depression worse, right? You can’t get two ratings for the same symptoms. So you just have to be thinking about that when VA is sending you a decision on an issue or you’re asking for compensation. VA would consider that getting paid for symptoms of depression twice, which isn’t allowed under VA law.
So, back to the disability ratings, Alyse, what’s the highest rating that you get– you can possibly get for your back and what’s maybe a more common rating that you’d see in your practice?
Alyse: Yes. So, the highest that you can get actually is a scheduler 100% but that requires an entire unfavorable ankylosis of the entire spine. So, we don’t see that very common.
Christian: What is ankylosis?
Alyse: Ankylosis is essentially when your spine becomes fused, so you would have absolutely no movement in the back or really at all, because it’s your entire spine, so that’s your C-spine all the way down to the very end of your lumbar spine. So, we don’t see that very often that’s the scheduler 100%. What I see more often is a 40% rating, which is the highest that you would get when you still do have limitation of motion, it’s just very limited.
There are some other ratings that you can get for having different symptoms for example, if you have incapacitating episodes you can get up to a 60% for that. Again, those incapacitating episodes for 60%, you would have to be incapacitated basically bedridden for six weeks which is a significant amount of time.
Christian: It’s very long time.
Alyse: So that’s why I tend to see more of a 40% rating than a 60%, but those are available.
Christian: So, Courtney, let’s assume that a veteran has a 40% rating for their low back disability or their back condition, but they can’t work because of it. What now?
Courtney: Yes. So, a veteran, if the back condition affects them enough where they are precluded from working, a veteran could apply for what’s called “Total disability” based upon individual unemployability for TDIU. If granted TDIU it’s a 100% rating so meaning the veteran would be paid a 100% rate each month.
Normally back conditions, if you’re rated at 40% it is, in real life a functional loss is very limiting, and oftentimes there will be good evidence to show that the veteran can’t work in a substantial gainful capacity. So again, you would need to develop the evidence to show that, so lay testimony can be very helpful if the veteran can describe specifically how the back condition affected them previously when they were working or how it affects them now to the extent that they wouldn’t be able to go back to work. Medical evidence again from either a private treating doctor, VA treatment notes, or an outside medical opinion, again, specifically outlining how that back condition would impact the veteran in terms of employability limitations and explain why they would be precluded from working in a substantial gainful capacity.
If you can show that to VA, you can still get 100% rating, it’s just a different avenue to doing it without using the rating criteria the VA has outlined for the back.
Christian: Yes. Absolutely. Anything to add Alyse?
Alyse: No, I think that is a good thing to remember actually for any type disability, it is definitely harder across the Board to get a scheduler 100% than it is to get TDIU. I know we’re not speaking about this today but PTSD for example, you have to be very severely disabled with your psychiatric disorder to get 100% scheduling.
Christian: Same with the complete unfavorable ankylosis of the spine. That’s very uncommon.
Alyse: Where you may not be able to work. Same with the unfavorable ankylosis. So it’s not easy but an easier avenue tends to be TDIU to get a 100% disability rating than to get a scheduler because, remember with those schedulers they’re only looking at a very mechanical application of your back, versus how your back actually impacts you in your day to day life and your ability to work.
Christian: Well, I think we’ve covered everything. Are there any last thoughts or anything left unsaid before we wrap up?
Courtney: No, I think that TDIU part is actually a perfect place to leave off because like you said, I think that’s especially important to remember and keep in mind so that you can make sure that you’re getting the highest rating that you’re actually entitled to based on your functional.
Christian: Yes absolutely. So, we have a question from Tom, “I found doctors who do not want to do a nexus letter. What should I do?”
Courtney: I mean I guess it depends on the specifics of your case in terms of, if it’s your treating doctor or an outside expert opinion, you obviously can’t force medical experts to provide an opinion that they’re uncomfortable doing. I would maybe suggest trying a second opinion if you haven’t done so already, may be seeking out someone else who maybe is familiar with VA law or who is an expert in that, or an orthopedic expert we’re talking about of that condition to see if a second opinion changes anything.
Christian: Sure. I mean also, like we said, like you alluded to we don’t know what condition we’re talking about but in some instances explaining in a lay statement, and this is limited applicability, how you believe that your condition is related to service. Sometimes that can be sufficient, there’s a lot of veteran friendly rules that go into or supposed to go into adjudicating veterans claims. So that might potentially be another avenue that you could pursue.
Alyse: One other avenue too is if you are diagnosed with arthritis, you do have a potential to be able to establish specifically for arthritis, to establish what’s called “Continuity of symptomatology.” You would have to have started experiencing your back pain in-service and have continuously experienced it since your eventual arthritis diagnosis. It’s a regulation, it’s 3.30 3B. It’s an alternative avenue to service connection but again it’s only for, as far as backs concerned it’s only for arthritis. So if you have a lumbar strain, that wouldn’t qualify for this regulation.
Christian: It’s a hard [crosstalk] burden to overcome but it is absolutely legally correct.
Thank you very much for all the questions Lexa, Roman and Tom, those are all really great, it makes for a nice active conversation. But I think we’re all set over here. I just want to say thank you for watching and signing off from Chisholm Chisholm & Kilpatrick.