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Sciatica VA Disability Claims and Ratings

Sciatica VA Disability Claims and Ratings

Video Transcription

Emma Peterson: Welcome to another edition of CCK Live.  My name is Emma Peterson.  Today I’m joined by Amy Odom and Michelle Detore, and we’re going to be discussing VA disability ratings for sciatica.

As always, please feel free to leave any questions you might have in the comment section, and we’ll do our best to address them.  Additionally, please check out the links we provide to our blog for more information about the topics that we discuss today.  So, let’s dive right in.  Amy, can you tell us what is sciatica?

Amy Odom:  Sciatica is a nerve condition in which pain radiates along the path of the sciatic nerve, traveling from the lower back down through the legs.  It’s pretty common to see it with a back disability, and as of 2015, almost half a million veterans were receiving disability compensation for sciatic nerve issues.  It happens when the sciatic nerve is compressed or pinched, usually by a herniated disc in the spine or the overgrowth of bone on the vertebrae.  Common symptoms of sciatica are numbness, tingling, burning sensation, and muscle weakness.

Emma:  So, I think an important question that everyone would like to know is, Michelle, how does VA go about rating sciatica?

Michelle Detore:  Yeah.  So, typically VA rates sciatica under their neurological conditions, specifically nerve issues.  So, typically you’ll see it fall under 3 different categories, and they base it on the severity of the symptoms.  So, you typically see paralysis, which can be complete or incomplete, and this is also the most severe category.  That’s typically when there’s loss of muscle function.  There’s neuritis, this is usually when you’re seeing inflammation of the nerves that can cause pain and functional loss.  You have neuralgia, this is chronic pain or intense intermittent pain along the course of a nerve.  This is typically the most common category that most veterans fall into, and the one we usually see it rated under the most.

Each of these categories of nerve conditions also have subcategories.  So, you have your own paralysis, your own neuritis, your neuralgia, and then it’s based on the severity of it.  So, typically it falls under a mild, moderate, or severe category, which we’ll get into a little bit later what that means.  Then, based on that category, then VA rates it.  Again, we’ll get into that a little bit later.

I think it’s important to note that just because they’re rated under neuralgia or neuritis, it doesn’t mean that they can’t have symptoms that would entitle them to a higher rating under a higher level of severity.  So, you could have a symptom — you could be rated on neuralgia but have a symptom under paralysis, and therefore VA has a duty to maximize your benefits and rate you on with a higher rating.

Keep in mind when we say paralysis, we’re not saying that you have to be completely paralyzed because of it.  We’re saying that there’s a loss of muscle function.  So, this is sometimes you’ll see when veterans can’t lift their leg up naturally.  They have to physically take their hands and pick their leg up, or they drag their foot, or there are certain movements of the leg that they used to be able to do that they can’t do now because of sciatica.  That’s typically where we see paralysis.  It does happen where there is actual, complete paralysis in the leg, but typically you see it… again, it’s loss of muscle function, so maybe the inability to move the leg in the natural function that you used to have before.

Emma:  So, Amy, are there any common issues that we see with sciatica ratings?

Amy:  Yeah, so as Michelle mentioned, the sciatica ratings are usually based on whether the sciatica is mild, moderate, moderately severe, or severe.  Those are the terms that the rating schedule uses, but those are highly subjective, vague terms.  With the exception of, I believe, severe incomplete paralysis, there are no actual criteria or concrete symptoms that you must have listed in the rating criteria to get a rating from mild, moderate, or moderately severe sciatica.

This is a real problem. In 2019, there was a government report that said that the lack of specifics in the rating criteria is leading to unfair and arbitrary decision-making because one veteran might have symptoms A, B, and C, and a regional office find that that means that it’s moderately severe sciatica or moderate sciatica, and another veteran has those very same symptoms, and the regional office says that it’s mild. So, the Government Accountability Office recommended in 2019 that VA come up with some actual concrete criteria for determining whether neurological impairment related to the spine, such as sciatica, is mild, moderate, or severe.

The VA does have some criteria in its Adjudication Procedures Manual called the M21, which you can find online by just googling it, but those criteria are also pretty subjective.  So, the Government Accountability Office acknowledged that in the report also that even the criteria that are listed in the Adjudication Procedures Manual is inconsistent and is vague, and recommended that the VA actually come up with concrete examples in the rating schedule.  I haven’t heard anything about any proposed rules changing the rating criteria. It doesn’t mean that VA hasn’t done so, just means I haven’t heard of it, but it might be something that we could see in the future based on this report.

Emma:  So, let’s dive a little bit further into those ratings.  As Amy mentioned, the actual diagnostic codes, which you can find in 38 CFR 4.124a, for sciatica — 8520, 8620, 8720 discuss mild, moderate, moderately severe, severe, or complete paralysis.

But the M21, that VA Adjudication manual, provides some vague examples, which gives you a starting off point.  So, for veterans out there wondering, “Do I fall in the mild or moderate category? What can I best guess, hope for from VA?” we can walk through those different examples.

So, let’s start at the top.  If you are of complete paralysis of the nerve itself, the sciatic nerve, in which all the muscles of the leg below your knee fail to work, you’re going to get an 80 percent rating.  That’s the highest you can get under this schedule of ratings.  From there, if you have incomplete but severe paralysis, VA might look to whether you have muscle atrophy, poor blood circulation, and a limited functionality of the affected body part, i.e. your leg, hip, thigh, that area.

Then we get into sort of more vague, squishy areas of incomplete but moderately severe, moderate, and mild, which don’t really have too many examples in terms of paralysis.  For neuritis, again, not too much more information there in the M21.  Then for neuralgia, we’ve got some explanation for what moderate might be.  It might involve tingling, numbness, and moderate to severe pain, interference with the functionality of the limb perhaps.  Then, mild is probably just going to be tingling or mild pain, with only mild interference.

So, again, it’s not very clear-cut.  It’s still open for a lot of interpretation.  There’s some guidance that if you have objective or subjective symptoms, you might get a higher rating, but it’s not crystal clear as we’ve discussed.  So, it’s important to, as always, be open and honest with your VA examiner about how your symptoms affect you, provide lay evidence if you can, and discuss this issue with your accredited rep, your VSO, an attorney, whoever you work with on these conditions when seeking service connection or an increased rating for sciatica.  What’s the best approach to take in order to maximize your rating.

So, speaking of maximizing ratings, Michelle, how does sciatica play into getting TDIU, or Total Disability due to Individual Unemployability?

Michelle:  So, with sciatica, it can impact… I mean, right away, you think that sciatica… you’re like, okay, it’s affecting a leg or both legs, and you’re thinking difficulty walking, difficulty standing, and maybe like lifting, but it can also impact non-physical tasks such as your ability to sit, so you could be sitting and the pain from your legs or the numbness.  You can only sit for so long before you have to stand up, but that then you can only stand for so long before you have to try to sit down.

It can also, the pain that comes from the condition can impact concentration, your ability to focus, your ability to stay on task.  So, there’s exertional and non-exertional side effects from these conditions.  There’s medication side effects that would impact ability to do maybe sedentary employment as well as physical employment.

So, because these conditions… these symptoms from these conditions can be pretty severe… I mean, Emma was just speaking about the fact that you have complete loss of your muscle below your knee.  At this point in time, a lot of veterans find themselves unable to work because of the severity of these conditions.  We see this very often, where the condition impacts, again, not just the physical ability but also some non-physical stuff like, again, sitting, concentration.

So, at this point in time, we would usually suggest and recommend for veterans that are unable to work because of the severity of their sciatica, that they apply for TDIU, or the Total Disability based on Individual Unemployability.  This compensates a veteran at a 100 percent level, even when their combined rating doesn’t get them to 100 percent rating, and it gives them the 100 percent rating because they’re essentially unemployable because of their service-connected conditions.

It’s a good alternative and a good way to get to their maximum benefits.  A lot of the schedular 100 percent criteria is very hard to reach, so this is another way to get there.  So, again, this is usually what a veteran is unable to secure, and/or follow substantially gainful employment as a result of the service-connected conditions.  Here, it could be sciatica, and keep in mind, you can also apply your other service-connected conditions as well.

One thing I will say… obviously, VA has what they call schedular criteria for TDIU, which is that a veteran needs to have one condition rated at 60 percent or higher, or have two or more conditions, which one is rated at 40 percent or higher with a combined rating of 70 percent or higher.  But that isn’t a bar if you’re not fitting those two categories.  You’re entitled to TDIU if your service-connected conditions render you unemployable.  So just keep that in mind is that even if you don’t meet the schedular criteria for unemployability benefits or TDIU benefits, you’re still eligible, and you’re still eligible to apply on an extra-schedular basis.

I think that’s a common misconception.  Sometimes that happens, but it’s very common for veterans to sometimes not fall under the criteria but still also be entitled because of the severity of their conditions.  So, yes, if the disability is of such severity that you’re out of work because of it and unable to work, then that is when we would recommend a veteran to apply for the unemployability benefits.

Emma:  So, for more information, if you’re interested in TDIU, please be sure to check out our video, and we’ll post a link in the comment section.

So, that really wraps up our discussion today about VA disability ratings for sciatica.  Thank you all for joining us so much.  Amy, any final thoughts for people out there watching this discussion?

Amy:  I think Michelle mentioned getting lay evidence into your claims file.  I want to echo that and say that that sometimes is the most helpful evidence in determining whether your sciatica is mild, moderate, or severe.  Anything that you can put in your claims file from yourself or from other people who know you, who can explain how your leg pain and numbness interferes with your ability to do your daily living activities and to perform your job if you’re working will be helpful in making that determination.

Michelle:  VA will often rate you based on a VA examination, whether they find it mild, moderate, or severe.  So, make sure you’re taking a copy of those examinations, make sure you’re reading it.  If there’s something you disagree with or something that’s not accurate like if it was saying… it’s a great time to submit that lay evidence to counter the examination, but it’s usually the basis for the rating that VA assigns, so that’s a very important piece of evidence to obtain.

Emma:  Well, thank you all for joining us.  Be sure to check out our blog and our extensive library of videos on YouTube to learn more about VA ratings for sciatica and other common disabilities.  Please don’t forget to subscribe to our channel.  Have a good one.