Direct Service Connection for Back Pain
Service connection or “service-connected” is the acknowledgement by VA that a veteran’s current health condition is related to their military service. Veterans need to establish service connection in order to receive disability compensation from VA. In order to establish direct service connection for conditions related to back pain, veterans must show evidence of the following:
- A current diagnosis of a back condition;
- An in-service event, injury, or illness; and
- A medical nexus (i.e. link) between the current, diagnosed back condition and the in-service event, injury, or illness.
However, it is important to note that there is an exception to the first element of service connection involving a current diagnosis. In April 2018, the Court of Appeals for the Federal Circuit held in Saunders v. Wilkie that VA must award disability benefits for pain due to military service. This means that if a veteran has pain related to their time in service, but does not have an underlying medical diagnosis, they can still receive VA disability benefits. In regards to back conditions, this ruling is beneficial as many veterans experience back pain stemming from their time in service, but do not have a diagnosis that serves as a cause for the pain. Nonetheless, veterans will typically need medical documentation from a healthcare professional indicating that their back pain is related to their service.
Secondary Service Connection for Back Pain
Veterans can also be service-connected for back conditions that are not directly related to service. A secondary service-connected disability is a disability that resulted from a condition that is already service connected. Here, veterans must provide medical evidence linking their back pain to their already service-connected condition. The nexus between your primary condition and your secondary condition must be clearly established in order to be granted secondary service connection. For example, if a veteran has a service-connected knee condition that causes them to favor one side when walking, they might develop an altered gait. This uneven shift in weight may then contribute to complications and pain in their back. In that way, the veteran’s back pain is due to their service-connected knee condition, and therefore warrants secondary service connection.
How VA Rates Back Pain
VA rates back conditions under 38 CFR § 4.71a, Schedule of Ratings, Musculoskeletal System and the criteria is based largely on a veteran’s range of motion. Generally speaking, veterans will attend a Compensation & Pension (C&P) examination and the examiner will measure how far they can bend forwards, backwards, and side to side, using a goniometer. VA will determine the severity of a veteran’s back condition based on the range of motion measurements provided by the examiner. However, the C&P examiner should also take into account the functional loss caused by the veteran’s back condition, as evidenced by pain during motion. For example, a veteran might be able to bend forward 85 degrees, but starts to experience pain at 55 degrees. In this case, the veteran should receive a disability rating that is consistent with both the range of motion measurements and the functional limitations caused by his or her back pain.
In addition to range of motion measurements and functional loss, VA examiners should also address the presence of flare-ups. If veterans experience flare-ups of back pain, they may be eligible for a higher disability rating. For example, a veteran is granted service connection for a back condition and receives a 10 percent disability rating. On most days, the veteran is unable to bend forward more than 60 degrees. However, when experiencing a flare-up, the veteran is unable to bend forward more than 30 degrees. Therefore, during the flare-up the veteran’s back condition becomes much more disabling than 10 percent. As such, VA should assign a disability rating in accordance with this additional loss. In a 2017 Court of Appeals for Veterans Claims case, Sharp v. Shulkin, the Court decided that examiners must offer an opinion on how the veteran could be functionally limited during a flare-up, even if the examination is not being performed during a flare-up. If an examiner fails to do so, then the examination is inadequate for VA rating purposes and a new examination may be warranted. If the examiner is unable to provide an opinion, they must prove they have considered all of the evidence available before arriving at that conclusion.
Overall, VA’s consideration of functional loss and flare-ups accounts for how a veteran’s back condition actually impacts his or her daily life, making up for the otherwise very mechanical application of the rating schedule.
How to Disagree with VA’s C&P Examination
As mentioned above, C&P examinations are incredibly important in relation to how VA rates back pain. If veterans disagree with the VA examiner’s report, they have the right to disagree by submitting argument and evidence to the contrary. Importantly, VA will not send veterans copies of their C&P examinations automatically. Therefore, veterans should request a copy of their examination from their local Regional Office and then thoroughly review it to ensure the examiner answered all questions adequately. Additionally, veterans should make sure that the examiner’s report accurately represents what they reported in regards to symptomatology and severity. If the VA examiner failed to address any of the factors mentioned above, including functional loss and flare-ups, veterans can argue that the examination is inadequate. Veterans can also argue against the adequacy of an examination if the examiners fail to provide rationale for their conclusions, or if they do not address all theories of service connection (e.g. direct, secondary).
Veterans can obtain their own evidence to demonstrate their back pain is more disabling than what is reflected in the examination. For example, veterans can submit lay statements outlining the severity of their symptoms, either generally or specifically in relation to the examiner’s findings. Veterans can also consider getting a private examiner’s opinion to contradict the negative C&P examination.
Secondary Conditions Associated with Back Pain
Again, secondary service connection can be awarded for conditions that develop as the result of an already service-connected condition. There are several common disabilities associated with back pain that veterans should be aware of for secondary service connection purposes. Specifically, chronic back pain can cause depression as veterans are no longer able to do all of the activities they used to do. Furthermore, back pain can lead to radiculopathy – a condition caused by a pinched nerve root in either the cervical, thoracic, or lumbar spine. If veterans are taking serious medications for their back pain and then develop stomach or gastrointestinal issues, they may be eligible for service connection for these resulting conditions. However, it is important to note that veterans must avoid pyramiding when applying for secondary conditions. Pyramiding is the VA term for rating the same disability, or same manifestation (i.e. symptom) of a disability, twice. In other words, veterans cannot get two disability ratings for the same symptom.
Temporary Total Ratings Due to Hospitalization
If veterans are hospitalized for over 21 days as a result of their back pain, they can apply for a temporary total (i.e. 100 percent) rating. Importantly, veterans must apply for this benefit directly as VA will not grant it on its own. Veterans can be granted 100 percent for the rest of the hospitalization period and possibly after, depending on how VA evaluates the back condition following discharge. After discharge, VA will complete an assessment and reassign a rating that reflects the current severity of the veteran’s back pain.
TDIU for Back Pain
Veterans who are unable to secure and follow substantially gainful employment due to their back pain may be eligible for total disability based on individual unemployability (TDIU). If granted, veterans will be compensated at the 100 percent level even if their combined schedular rating does not add up to 100 percent. In this case, veterans will need to submit evidence specifically highlighting how their back condition precludes employment.