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VA Claims for Nerve Conditions

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Jenna Zellmer: Good afternoon, and welcome to CCK Live. My name is Jenna Zellmer. Joining me today are Michael Lostritto and Alec Saxe. The three of us are all attorneys practicing before both VA and the Court of Appeals for Veterans Claims to represent veterans in their pursuit of veterans disability claims. And today, we are going to be talking about nerve damage. And you might wonder why this is the particular topic that we have chosen this week. But, in fact, over two million veterans are service-connected for different nerve conditions according to a twenty-nineteen veterans benefits report. And so this is something that affects a lot of veterans on a daily basis. And so we want to provide a little bit more information about what kind of nerve conditions are common to veterans and how VA rates them to, hopefully, help you in your claim for either service connection or for an increased rating. If you have any questions, please feel free to leave them in the comment box below. You can also check out our website, cck-law.com. We have a lot of information about that which we will link as well with this video.
So there are over a hundred types of nerve damage. And they cause many types of impairment. And they require a lot of different treatments, a variety of treatments. And so Mike, why do you not kick us off and talk a little bit about what the different types of nerves are and what some common symptoms of those nerve-damage disabilities can be?

Michael Lostritto: Sure. Thanks, Jenna. So there are, essentially, three types or groups, broadly, speaking of nerves throughout the body. There is the autonomic nervous system. There is the motor nervous system and also the sensory nervous system. For the autonomic system, this is the part of the nervous system that really controls the involuntary or partially voluntary activities throughout the body. So think about a person’s heart rate or their blood pressure or even their digestion. And so some symptoms from nerve damage to this part of the nervous system could include lightheadedness, constipation, dry eye, dry mouth, or bladder or other sexual dysfunction. For the motor nervous system, this is the part of the nervous system that controls movements and actions throughout the body by passing information from the brain and the spinal cord to the body’s muscles. And so what we see is that individuals or, in our case, veterans who have nerve damage to the motor nervous system will present with symptoms that include things like weakness or twitching, muscle atrophy, or paralysis. And then, finally, the sensory mo– sorry, the sensory nervous system, this is the part of the nervous system that relays information from an individual’s skin or muscles back to the spinal cord and the brain. And these nerves allow for an individual to feel pain or other bodily sensations. And what we see with the sensory nervous system is that for individuals who have had nerve damage to this part of the nervous system will experience symptoms that include things like pain or loss of sensitivity, numbness, maybe, prickling or tingling or burning sensation.

And so I think that is a good overall, broad stroke recap of kind of the three general subsystems within the nervous system and some of the symptoms that maybe an individual or a veteran would experience if they have had some nerve damage to one of those systems.

Jenna: Right. And I think that is really important to kind of note the symptoms, because a veteran might not necessarily know that they have sustained nerve damage. But if they feel lightheaded or they feel this sort of pain or muscle atrophy or anything like that, then that kind of signals to the veteran that, maybe, they should talk to their doctor. If they have either an attorney or a veteran service representative, that is something that you should, definitely, look into and see whether or not anything related to service might have contributed to those symptoms.

Michael: That is such a great point, because veterans are not expected to know these three kind of medical and scientific subsets of the nervous system. When they file a claim or they are submitting lay testimony, really describing the symptoms or even describing the symptoms to a physician is what is key. They do not need to go in and say that they have an issue with their sensory nervous system perhaps.

Jenna: Right. We do not expect anyone to say, “I have an autonomic sensory or motor nerve damage [laughter].

Michael: Exactly.

Jenna: So that kind of brings me to my next topic which is bringing this a little bit more into the focus of the veteran’s experience.Alec, can you talk a little bit about what the common nerve conditions that veterans, specifically, experience?

Alec Saxe:
Sure, Jenna. So yes. We talked about the types of nerves. But some of the most common types of nerve conditions, in fact, probably, the two most common that we deal with in our practice are peripheral neuropathy and radiculopathy. There is also sciatica or paralysis of the static nerve and median nerve paralysis.Peripheral neuropathy manifests in weakness, numbness, pain, usually, in the hands, feet, extremities. Radiculopathy is caused by a compression, compressed nerve in the spine. Sciatica and paralysis of the sciatic nerve is the seventh most common disability among veterans. And then the median nerve is the nerve that runs along the forearm to the hand. There can be paralysis of this nerve.

Jenna: Great. And I think we are going to talk a little bit later about kind of how those different common or conditions relate to other service-connected conditions that a veteran may experience. So I guess the bigger question is how can these nerve conditions be caused by military service? And there is a whole bunch of different types of nerve damage that can manifest throughout the body as we have seen so far. And some of these common causes of nerve damage can either be directly related to service or secondarily related to service.
And so one of the big, common causes of nerve damage is an autoimmune disease such as MS or Guillain-Barre’ or lupus which we have seen a lot of veterans, especially, more recently experienced. And VA, actually, has a presumption for veterans who develop MS within seven years from separation of service. And so if you are a veteran who is within seven years of separation for a service and you are experiencing some of these nerve symptoms and you do not really know what they are related to, again, that is something, definitely, to bring up to your doctor, to talk to your veteran service representative about, and see whether or not, maybe, these are early signs or symptoms of an autoimmune disorder such as MS.Another really important example of something that causes nerve damage is exposure to toxic substances such as Agent Orange. So VA has presumption for early-onset peripheral neuropathy. So, again, if we go back to what we were talking about before with peripheral neuropathy such as weakness, numbness, pain in your hands and feet or your extremities, if that is beginning shortly after service or in service, and you were exposed to Agent Orange either in Vietnam or Thailand or elsewhere, if you can prove that you are exposed, that is something that VA may be required to award service connection for.

The other two common ones, which I think Alec kind of hinted at, was radiculopathy and diabetic peripheral neuropathy. So radiculopathy refers to nerve damage that is caused by service-connected back conditions like your herniated disc or stenosis. And so if you are service-connected for a back disability and that back disability is putting pressure on the nerves in your back, that is going to manifest in tingling, numbness, pain that is going through your lower extremities. And so we see a lot of lower-extremity radiculopathy. And, similarly, for diabetic neuropathy, we see a lot of lower extremity and upper extremity diabetic peripheral neuropathy which is interesting, because it is almost the same manifestation of symptoms, both radiculopathy and diabetic peripheral neuropathy. At the end of the day, you are getting numbness, pain, tingling in your upper and lower extremities, your hands and feet and arms and legs. But they could be caused by different service-connected condition. So it is really important to talk to your doctor, figure out what conditions you are service-connected for or, maybe, service-connected for. Maybe, you have a pending claim for diabetic neuropathy– or excuse me, for diabetes. Or, maybe, you have a pending claim for service connection for your back.

If you have any of those secondarily-caused nerve damage symptoms, you want to make sure that VA is processing those along with your other claims, and VA is supposed to do this. Sometimes they do not. And so that is why it is really important to make sure that you are as informed as possible.So there is also a lot of other causes of nerve damage. Drug side effects, sometimes cancer treatment, causes nerve issues. I mentioned MS. But also ALS or Lou Gehrig’s disease causes some nerve conditions. So there is a lot of different ways that you, as a veteran, can obtain service connection or demonstrate connection between service and your nerve damage. And so it is, definitely, important to educate yourself and know that there are a lot of people out there who can help you kind of navigate the VA system. So let us move on. Assuming a veteran has obtained service connection for nerve damage, let us talk a little bit about how VA rates that nerve damage.

So Mike, is there a diagnostic code for nerve damage?

Michael: No. There is, actually, not a single diagnostic code for nerve damage in and of itself. What there is though is VA will go about reading the condition based on the actual nerve that is affected. So it will identify the actual nerve that is affected and then look at the loss of function of the affected body part. And so this is important, because it allows for veterans to receive kind of separate ratings for different nerves throughout the body. There is not a single diagnostic code that allows for one rating for just nerve damage very broadly speaking.

Jenna: Cool. So I guess the first step is for the VA to kind of consider what the condition should be rated as right?

Michael: Right. Yes. So what VA really does in order to rate the conditions— and this can get a little complicated. But I think what VA, essentially, does is they look to categorize the condition under one of the three broad categories. So they will look to whether the condition falls within the category of paralysis, neuritis, or neuralgia. And then once they have done that, then they will decide kind of the corresponding level of severity for the condition within each category.

So for paralysis, this is the most severe category in terms of nerve damage. And here, the nerve may not function at all or can result in complete or partial paralysis. And in terms of rating the condition [clears throat], excuse me, in this category based on severity, what VA will do is they will look to whether the nerve is, completely, paralyzed or suffering from complete paralysis. Or, if not, if the nerve is only, maybe, partially paralyzed or what they call incomplete paralysis, they will look to whether the paralysis is severe, moderate, or mild.

So for incomplete paralysis that is severe, VA is really looking to whether the veteran is really functioning, is severely limited, may not be, completely, paralyzed but the symptoms are very severe,
functioning is, severely, limited, and they are looking for muscle atrophy.

For incomplete paralysis that VA determines is only moderate, these symptoms really include things like tingling, numbness, moderate pain that really limit the ability of the veteran to function on a day-to-day basis. For incomplete paralysis that is only deemed mild, VA is looking to only mild pain or tingling, minor impairment.

It makes it difficult, honestly, to rate these conditions, because a lot of these terms are not, actually, defined. And so in some ways, veterans and advocates are left kind of guessing as to what severe, moderate, mild, actually, mean within the context of rating this disability. But that is how VA would go about reading a condition, a nerve condition, that they deem to fall under the paralysis category

For neuritis, neuritis really, essentially, means that the nerve can still function, but it is swollen or painful. What is key here is that the nerve has to involve, at least, one of the three following symptoms. So the veteran has to show loss of sensation, muscle atrophy, or loss of reflexes in some way. Again, under the category of neuritis, VA will rate the condition based on whether the condition is deemed severe, moderate, or mild.

Again [chuckles], there is really no definition as to what severe, moderate, or mild means. But I think when thinking about whether the condition is severe, we want to look at, first, does the veteran display loss of sensation, muscle atrophy, loss of reflexes? And does it, severely, limit the veteran’s functioning?

For the condition to be deemed moderate under the category of neuritis, one or more of the loss of sensation, muscle atrophy, or loss of reflexes has to be present, not necessarily all three. But veterans need to show that their functioning is, significantly, interfered or impacted with.

And for mild, one or more of these symptoms that we have been talking about – the loss of sensation, muscle atrophy, and loss of reflexes – has to be present. But here, a veteran would only have mild impairment in their ability to function.

The final, third, category that VA can rate a nerve condition under is neuralgia. And what neuralgia means is it is, essentially, sharp pain due to an irritated or damaged nerve. And this, oftentimes, causes tingling, numbness. And here, the condition is rated either mild or moderate.

And so for the condition to be rated moderate, VA will look to symptoms such as tingling, numbness, moderate to severe pain, or other symptoms that, significantly, interfere with the veteran’s functioning. And mild, we are looking at mild tingling or pain and only a limited effect or impact on the veteran’s ability to function.

Once VA has gone through that whole analysis [chuckles], what they will do is they will turn to look to what the specific nerve is that is affected, and they will assign a corresponding rating based on that diagnostic code. So that–

Jenna: It is pretty simple [laughter].

Michael: It is very very simple. And it makes it even more difficult, I think. Like we said, the fact that a lot of these terms have not really been defined anywhere in the regulation, in case law, in statute. Not to get ahead of ourselves too much, but I think a really important piece for veterans trying to prove their case here is the use of lay testimony. And, maybe, we will hit on this a little bit later. But I think, here, lay testimony from the veteran that really shows the severity of the veteran’s symptoms and how the severity of the symptoms impact their ability to go about their daily life or work, that is going to be really critical I think in helping to show whether the condition is severe, moderate, or mild.

Jenna: So I think, like I said, super simple, very straightforward, right? I think it is very interesting that the criteria for neuralgia, neuritis, and paralysis are all very similar. And so it really just kind of comes down to, maybe, what a doctor says about whether or not a veteran’s nerve damage meets the level of incomplete or complete paralysis versus whether or not it is just sharp pain due to an irritated or damaged nerve.

And, as we have said, a veteran does not know whether or not they have incomplete paralysis or whether they have just neuralgia or damaged nerve. And so this can be really complicated. And I know I am, probably, sounding like a broken record at this point, but it is really important to kind of seek help from someone who is a professional in this area, because, like you said, all of the terms are kind of interchangeable. They are all pretty vague.

And so it is not hard to see why sometimes VA might not get it right, why a veteran might claim one thing but, maybe, be entitled to another thing. And so, maybe, this would help if we kind of use it in an example and made it a little bit more concrete.

Alec, can you use an example of kind of how VA would rate a nerve damage case?

Alec: Sure. Yes. It might help a little bit. But as we have all alluded to, this is tough. But Mike, thanks. That was a good, in-depth background. And it pretty much tracks with an example we can give. We look at, for instance, the sciatic nerve which, again, is the nerve that originates in the lower back and travels down the back of the thigh through the leg.

So, say, a veteran has a compressed nerve, sciatic nerve, due to a herniated disc or degenerative disc disease in the back that is service-connected, relevant diagnostic code the VA rates the sciatic nerve under– and, again, VA is looking to the specific nerve affected. So here, that diagnostic code is eight-five-two-zero; you do not need to remember that. But that is what it is. And it differentiates between – as Mike had talked about – complete paralysis versus incomplete paralysis and then the various levels of incomplete paralysis which range from severe, moderate, and mild.

So complete paralysis is rated at a pretty high eighty percent rating. And the incomplete paralysis, severe, moderately severe, or if you have got that moderate, and mild ranges from sixty, forty, twenty, and ten percent, respectively.

So, for instance, if you have symptoms including inability to move the muscles below the knee, VA would rate that disability at the maximum eighty percent rating as it indicates complete paralysis there under the relevant diagnostic code.

So it is important to note that sometimes veterans with nerve disability will not be rated under the neurological criteria. Nerve ratings are based on the loss of function of the body part affected. But you may also be limited in your functional ability through the through a loss of range of motion. So there is a separate set of diagnostic codes that rate the limbs, the extremities, based on range of motion results, loss of range of motion. And VA has, generally, a duty to maximize benefits and will rate the veteran based on whichever results in the highest rating.

So if you can receive a higher rating based on a loss of range of motion in the knee or the back as opposed to some vague description of mild incomplete paralysis, for instance, then VA should be rating you under the separate diagnostic codes for limited range of motion. And that will result in a higher rating, hopefully.So that is something to note to when VA is making its assessment of the ratings to assign to your neurological disability.

Jenna: And it just adds another complication to the whole thing [chuckles]. Great. So just a couple of other notes, we have talked a lot about how nerve damage affects the extremities, either the legs or the arms. And so when you are submitting lay testimony or double checking to make sure that VA is rating correctly, it is important to consider what VA calls the bilateral factor which, essentially, just means that if you have paired body parts– so, for example, two arms, two legs; it even affects two eyes, anything that you have two of in your body, VA applies the bilateral factor. And that, actually, might increase your rating.

And so we are going to provide a link with more information in the comments about this, because bilateral factor can be its whole, own presentation. It is very confusing, but the important thing to know is that you just want to make sure that VA is applying the bilateral factored correctly to your claim.

And then, as always, we have to talk a little bit about what happens if nerve damage prevents you from working? So I am sure that you have seen our previous presentations on TDIU, but just as a quick refresher, TDIU stands for Total Disability Due to Individual Unemployability which, essentially, means that VA is required to pay you at a one hundred percent rate even if your disabilities do not add up to one hundred provided that those disabilities prevent you from obtaining and maintaining a, substantially, gainful work.

So check out our previous videos on that. But that is something to keep in mind as you are navigating the VA system. And as Mike said earlier, as you are submitting lay statements or any other evidence in support of your claim, definitely, think about whether or not your disability prevents you from working. And that will help you, ultimately, hopefully, get the benefits that what you are entitled to.

So Alec and Mike, do you have any closing thoughts or tips for veterans seeking benefits for a nerve condition?

Michael: Sure. I would just say if veterans have their nerve condition and it is rated and in their opinion, it is rated too low, really consider appealing, because, as we have talked about, the nature of the rating criteria, because it is so vague, I think it leaves a lot of opportunity for veterans to be underrated in this area. And so, oftentimes, maybe, veterans will receive a rating based on what VA characterizes as mild symptoms. But there is a lot of opportunity for veterans here to, potentially, appeal and argue for an increased rating if they can show, if they can develop the record, submit evidence, maybe, lay testimony, as we have talked about, maybe, medical evidence from a provider that they are treating with, to argue, perhaps, that their condition is not mild, but it is moderate. And they can show through the submission of evidence, that they are experiencing increased symptomatology that VA has not considered or, maybe, just has mischaracterized.

So I think the vagueness of the rating criteria cuts both ways. It can, unfortunately, mean that veterans are underrated a lot of times. But it also provides a lot of opportunity for advocates and veterans to appeal the case, obtain evidence, and, maybe, argue for an increased rating.

Alec: Yes, And just for establishing that initial service connection for neurological disabilities, I want to reiterate the importance of being aware of the avenue of service connection or secondary service connection through an already service-connected condition. So the two prime examples, which, Jenna, you talked about, radiculopathy caused by service-connected back condition such as a herniated disc or stenosis, maybe, that was due to an injury you had in service, but it is possible to develop, obviously, these conditions, radiculopathy, later in life. There would not necessarily be evidence of it in service or even soon after service necessarily. But you can still obtain service connection and benefits for these later diagnosed conditions through the secondary service connection avenue. And that is, oftentimes, the main way we see these service-connected radiculopathy.

Another good example was the diabetic neuropathy. If you are service connected for a diabetes, perhaps, through VA’s presumption or Agent Orange exposure for Vietnam veterans, you can establish secondary service connection for diabetic neuropathy that way.

Jenna: Yes. I think that is a good point to end on. It is just, constantly, be vigilant. Just because VA, at one time, awarded you service connection for a back or diabetes, just kind of monitor that, and make sure that if you are experiencing later symptoms of numbness, tingling, pain, anything like that, think about whether or not those could be related to your already service conditions. I think that is really important to remember that a veteran service-connected disability picture can change and evolve as time goes on.

Great. Well, thank you, all, so much for joining us. Thanks, Mike. Thanks, Alec.

If you have any further questions, as I mentioned before, please feel free to check out our website, cck-law.com. As I mentioned, we will provide some more info in the comments below. So, definitely, check that out. And we will see you next week.