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VA Disability For Knee Conditions And Pain

VA Disability for Knee Conditions & Pain

Video Transcription

Christian McTarnaghan: Good afternoon, and welcome to another edition of Facebook live from Chisholm, Chisholm and Kilpatrick. My name is Christian McTarnaghan. And today I’m joined by Michelle DeTore and Kayla D’Onofrio. And we’re going to be talking about knee conditions. A really common issue that we see for our veteran clients are problems with their knees. Frankly. I have to be honest. It’s one of my favorite types of cases, orthopedic conditions. And so let’s just start. Let’s start really at the beginning, which is you know, Michelle, how do you get service connected for knee disability?

Michelle DeTore: Sure. So you can get service connection few different ways. So I’ll start with the most straightforward is direct service connection. So direct service connection means that basically the event that caused a knee injury happens or so your knee injury happened in service. So for direct service connection, VA requires three elements; so you have to have a current medical diagnosis of a disability, you have to have an injury or an event in service that caused the disability to your knee, and then you have to have a medical nexus that links the in-service event to your current diagnosed injury. So that’s direct service connection. So think of it in the fact that you are and I’ll go off the beaten path with an example, you’re playing basketball in service. You’re playing with a bunch of friends and you fell, and you hurt your knee. You have it in service injury to your knee. You currently still have a knee issue; you have degenerative joint disease or arthritis in your knee now and you get a medical opinion from your doctor that links your current degenerative joint disease and arthritis of your knee to that in service event or injury. So therefore that makes elements for direct service connection.

Christian: And that doctor’s opinion would be what’s referred to in the VA law like you said a nexus opinion, right?

Michelle: Yes. It is some VA terminology, the fancy way of saying certain things and like Christian just pointed out of doctor’s opinion is a nexus opinion. Another way you can get it is secondary service connection. So think of it in the way if you have another condition that causes the knee condition. So I’ll use an example as we have an in-service service-connected right ankle injury and because of the right angle injury you kind of maybe walk a little differently because you know, you’re overcompensating for the ankle in and it causes a knee problem to develop. So now you have a knee condition that is now cause or secondary to your service-connected ankle injury. So that is where we kind of get secondary service connection. Another way in that you can get service connection is aggravation. So think of it in the sense that, I’ll use the same example of the ankle and the knee, so think of it in the sense that you already had the knee condition prior to the ankle injury or you know, maybe then the knee condition was due to a non-service connected injury, you fell somewhere but because of the ankle injury, what would normally maybe be a mild condition is now considered something to be a little bit more severe because you’re overcompensating for you know, the injury for your right ankle by you know, walking differently and it’s aggravating your knee now beyond the natural progression of the disability. And making the disability essentially worse so therefore it’s aggravating the condition. Those are typically the three ways we see service connection for the knee, so it’s direct secondary or aggravation are the ways that typically we see a lot of times the veterans claims go.

Christian: Alright, great. So the first thing you need to accomplish in terms of getting compensation for VA or compensation for a disability from VA is to get the condition service connected. And so next Kayla, once you get the condition service-connected you are going to get a rating. A rating is a percentage that’s assigned to your disability, how disabling it is. And for the knees, there are a bunch of different ways in a bunch of different diagnostic codes that you can be rated under. So do you want to take us through one of them Kayla?

Kayla: Sure. So I think the most common one that we see and the most common one that VA really fees in general is limitation of flexion of the knee. So that’s rated under diagnostic code 5260 and basically limitation of flexion that has to do with the inward motion of the knee or how much you can bend the knee. So when VA is testing it, they’re looking at in general range of motion testing, the diagnostic code criteria does specifically
contemplate, the degrees of range of motion that you’re able to bend your knee. This doesn’t get super highly rated, the highest rating that you can get for limitation of flexion is a 30 percent rating under the scheduler. Rating criteria under diagnostic code 5260, the less that you can bend your knee the higher that rating is going to be. So the zero percent rating you have, you know, pretty good mobility and your knee as far as the ability to bend it. You can bend it up to 60 degrees, then the 30 percent rating your limitation is pretty limited to only about 15 degrees.

Christian: And there are a lot of people who file claims based on limitation of extension. I think it’s one of the highest and most commonly claimed VA disabilities. All right, so 5260, we use numbers just because that’s how VA organizes the diagnostic codes 5260 is just the number that’s assigned to the limitation of flexion disability. But other than that, there’s also another diagnostic code that applies to limitation of extension, right Kayla?

Kayla: Yes. So limitation of extension is sort of the opposite motion. So it’s your ability to straighten your knee. It doesn’t necessarily mean that your knee is frozen but you can’t straighten it all the way. The rating criteria 5261 is the diagnostic code for the limitation of extension. Diagnostic criteria does allow you to get a higher rating than it would for the limitation of flexion of the knee. The rating criteria goes up to 50 percent versus just 30 percent which kind of makes sense. If you’re not able to fully straighten your knee it’s going to affect your ability to walk and ambulate, probably a little bit more than an inability to fully bend your knee. But again, it kind of goes under those same restrictions of really just kind of looking at that strict rating as far as the degrees that you’re able to bend your knee. So keeping in mind with both limitation of function and limitation of extension of the knee, these rating criteria is pretty strict as far as you know, how you can get those ratings based on your range of motion testing. There are a few different things that they really should be taking into consideration, including flare-ups and you know pain on motion and we’re going to talk about those a little bit later but in general it is based on,  pretty strict range of motion testing.

 Christian: Yes. Is it called, I always mispronounce this, a goniometer? It’s like is that what it’s called? It’s literally something that they use to see, think of it like a protractor like how far you can literally move your leg. That’s how they do the most baseline basic ratings and reviews disabilities. All right. So that’s extension and limitation. There’s other ways that your knee can be affected by service-connected disability. And one of them is instability. Do you want to talk a little bit about 5257 Michelle?

Michelle: Sure. So instability. So what does that mean? It basically, for VA’s purposes, it means that the knee is moving too much from side to side or dislocating regularly. I think for a layperson terms you’re thinking about the knees giving away. So a lot of times instability causes somebody to fall. So usually for our purposes, before looking for evidence of it, a lot of times we’re looking for live and or medical evidence that shows and he is giving out or causing somebody to fall or lose balance. So this is unique in sense compared to the other knee diagnostic codes in the sense that you don’t need objective evidence here. Meaning when I say objective evidence. You don’t need medical evidence. A veteran is confident to talk about the fact that their knee gives away. However, it is good to be mindful of the fact that if you do see that medical evidence doesn’t show it, the VA may give a little more weight to the medical evidence, but it’s unique in the sense that, you can just have lay evidence demonstrating it. So here VA rates it based on a 10, a 20, or 30, so they call it slight, moderate, or severe. What a slight, moderate, and severe mean?

Christian: Great question.

Michelle: You know, that’s a really good question. I think that in VA’s world. It’s really just showing kind of maybe how often it happens, how often does it giveaway? So for me and, if I’m arguing a case, I want to show how often it’s giving away to help show that slight, moderate and severe. But it in the normal sense VA doesn’t actually define it. So that’s why we kind of talked a little bit when we say what does it mean, but that’s kind of how stability works for knee conditions.

Christian: And what I just to take one quick step back. You mentioned lay evidence. Do you want to explain what that is Michelle?

Michelle: Sure. Lay evidence is usually when you get a statement that is from either a veteran or third-party. Basically, just attesting to the condition in its sense of the severity or the events that caused it. It can be submitted by any veteran, basically want to show evidence in support of their case. It’s usually taken with the same weight as medical evidence in most cases. It’s very strong evidence in a lot of cases. We usually recommend when there’s a lack of medical evidence to get lay evidence including from yourself and others that can attest to the severity or the cause of a condition.

 Christian: Great. So when a knee disability gets really severe, you might need a knee replacement. Do you want to talk a little bit about how the knee replacement diagnostic codes and ratings work Michelle?

Michelle: Sure. So you’re talking about 5055 here for the knee replacement and typically with that when you’re getting your knee replaced, VA automatically gives you 4 months of convalescence rating. What is the convalescence rating? It’s a temporary hundred percent rating for 4 months. Now, once the hundred percent ends. You’re either going to get a 60 or 30 because 30 is the minimum rating after a knee replacement. It depends whether you’re getting a 60 or 30. It depends on limitation of motion in pain. So specifically VA requires severe pain for the sixty percent rating. What is severe pain again? Again, it’s a little bit subjective in the sense that there’s really no information given for what severe pain is, but you can usually show how much it’s affecting you to kind of show that severe level. So typically if you have a knee replacement you’re getting a year of a hundred percent rating and then you’re either going to get your condition rated at 30 or 60 moving forward.

Christian: Great. And then just very quickly. I’m going to hit two more. Another condition that can really affect knee is a meniscal condition. Those who have had problems with ACLs. So you can receive ratings under diagnostic codes that are 5258 and 5259. A 10 or 20 percent rating based on the residuals of your meniscal problem. So Kayla, we’ve been talking about a lot of different knee conditions here; a flexion, extension, instability. I’d imagine that there are a lot of veterans who have multiple issues or many of those issues not just one. So can you be rated for multiple conditions of the same knee disability? Let’s say, if you have multiple things going on with your right knee disability. Can you get more than one rating?

Kayla: You can. So the way that VA should be looking at it. You can be rated separately for each of these disabilities as long as you’re not contemplating the same symptoms more than once. So VA has what they refer to as pyramiding which is basically something that restrict your ability to get compensated twice for the same symptom. So for example, if a veteran has limitation of flexion and limitation of extension in the right knee they can be separately rated for both of those conditions. But if you’re trying to look at maybe you know ankylosis and that also contemplates limitation of sections where you have limitation of flexion already rated. You can’t kind of overlap those symptoms in the same way. So as long as your symptoms are separate and distinct from one another and they can be separately rated under those diagnostic criteria. They can be separately rated. It’s something that VA misses a lot. I think especially when we’re seeing that a veteran may be filed the claim for one specific condition and they go on an exam. And in those exams, they do find that maybe they also have that instability in their knee. VA raters when they’re adjudicating those claims they tend to not pick up on that and they don’t separately rate it. So if you find that you’re looking through an exam or you’re at an exam and they do find that additional symptoms, definitely pointed it out to VA so that they can compensate you appropriately for all of the symptoms that you’re experiencing.

 Christian: So Michelle, we’ve been talking about a lot of movement based disabilities, right? Flexion is when you move your knee close. Extension is when you extend it out. Instability, it’s going to move a little bit side to side. So can you get a rating under VA Law just for pain?

Michelle: So if you ask me a few years ago, I would have said no. Fine. Recently, a few years ago, I think specifically around 2018, case law came out that found that yes, you can get rated just for pain. They actually found that pain alone may constitute a disability and that is very important language to know is that you can now get compensated just for pain. Beforehand, I would say VA always required it to be a medical diagnosis and there really wasn’t much to establish the fact that you could get just for pain. But thankfully new case law has come out that does allow for that. So it’s just something to think about especially if you’re filing for or want to file for benefits is that you do not need a medical diagnosis in order to get compensation.

Christian: So what about painful motion, right? Because that’s a separate concept and VA law.

Michelle: Yes, it is. So think about it. So the thing about painful motion is that sometimes you don’t have instability. Sometimes you don’t have a limited flexion or extension. How our VA regulations require that if you have pain on motion that you are to be rated at the lowest level that the condition allows which is usually a 10 percent rating.

Christian: Yes:

Michelle: So if you don’t have any of those things that we talked about earlier, but you have pain on motion, you should be given a ten percent rating for your disability.

Christian: So a lot of our veteran clients have problems in both their left and the right knee. Is there anything different Kayla, when your rating someone who has Orthopedic disabilities and you know, both of their knees.

Kayla: Yes. So VA kind of recognizes the fact that if you have a disability that affects both your left knee and your right knee or you know in general your left leg and your right leg your left arm and right arm. They kind of recognize the fact that that is going to be inherently more limiting to a veteran and their ability to function. So when they’re doing the math to come up with a disability rating, they actually give you an additional compensation based on what your ratings are. So it’s a little bit confusing, VA math is already pretty confusing to begin with and this certainly can get a little bit more complicated but it is something there that is supposed to help a veteran. So for example, the way that this would work is if a veteran had maybe a 20 percent rating in their right knee for limitation of flexion and a 10 percent rating in their left knee for instability. VA would take those two ratings and combine them first to get a raw total of a 28 percent and then from that 28 percent are going to take 10 percent of that which would give with 2.8 and they’ll add it to the 28 percent and the new combined rating would be a 31 percent. So in this, you know, specific example, that wouldn’t necessarily change what your combined rating is. It would still be 30 percent based on the rounding. But in some cases it can be the difference between a 90 in a 100 percent rating or something like that. So it can definitely make a big difference overall when they are looking at the combined rating. Keep in mind that this does have to affect both your left knee and your right knee. It can’t just be based on multiple conditions limiting one knee.

Christian: Sure. That’s a great point. So, a lot of what we’ve been talking about in terms of limitation of extension and flexion, it’s like literally how far you can move your knee, right? They measure it to the degree but there are other ways that you can get increased ratings under VA law that don’t require that actual limitation of motion, right? You want to explain that a little bit?

Kayla: Sure. So an additional thing that they’re supposed to be looking at which again, this is something that I think is pretty commonly overlooked that we see on VA. And is there supposed to be looking at what’s called functional loss and what that means is how that condition actually affects your ability to function in everyday life. So it’s kind of going beyond that just sort of checking off the boxes on your C&P exam as far as what the objective range of motion testing is. They should be looking at things like pain, how severe it is during flare-ups, how frequently you have flare ups and sort of how those things will also affect your ability to function in everyday life. Just because you maybe have pretty good full range of motion in your knee at a certain point, if you’re in so much pain that it really does sort of affect your ability to function. They should be considering that when they are assigning disability ratings.

Christian: And also pain is probably the most common symptom that we see but also weakness, strength, incoordination. All of these are elements of Orthopedic disabilities at VA supposed to consider when they’re rating. And so Arthritis is a condition that a lot of our clients deal with, a lot of veterans deal with. So do you want to explain what the major joint rule is Kayla?

Kayla: Sure. So the major joint rule basically says that if you have a diagnosis of arthritis what VA is going to do first, they’re going to go through those normal range of motion tests and kind of determine if you would be able to get sort of that normal disability rating based on the range of motion test under 5260 and 5261. However, if they’re doing those range of motion testings and you do have pain but you do have pretty good range of motion overall, VA will look to diagnostic code 5003 which is the diagnostic code for arthritis. And as long as you have arthritis that’s confirmed through x-ray evidence. They’ll assign a 10 or 20 percent disability rating based on you know, how severe the arthritis is and whether it affects one or both of your knees. So it’s kind of VA’s way of looking at maximizing your benefits to the full extent that they can. They are going to like I said, we’ll get your normal range of motion first to see if they can give you a higher rating based on that. But if they can’t build and look to the diagnostic code for arthritis and rate based on the arthritis diagnostic code said.

Christian: So we’ve been talking a lot about what conditions can be compensated. How they’re compensated. So Michelle, let’s talk C&P examinations because this is where VA gets a lot of the information that they use to rate the veterans.

Michelle: It sure is. So for C&P exams, you know veterans would often say what you do expect especially for something to do with the knees. This is mostly going to be range of motion and we’ve kind of talked about certain parts of it throughout this conversation. A lot of it is checking your range of motion. So where’s your flexion going to? Where’s your extension going to? They’re supposed to test you after repetitive motion. So how much is the motion limited when you use it over time? They’re supposed to be talking about limited motion after flare-ups. Obviously that’s a very difficult one because you’re not always going to an exam during a flare up. So then their clues are addressed by based on your conversation, what additional limitations you have during a flare up? Like Kayla said, they’re supposed to be talking  about functional loss because you pain is so severe. You know, how much more loss do you have? Those are some things to be thinking about they’re supposed to be talking about impacts with standing, walking, sitting, climbing stairs, kneeling, all the things that impact your activities of daily life. So those are some things to think about, they’re always usually supposedly in person exams just because they have to be checking for range of motion. So that’s something else to be mindful of for examinations.

Christian: Yes, absolutely. And I mean the examiners are supposed to provide a lot of information for the board to be able to rate that disability and unfortunately, you know, they don’t always, right? There’s a lot of, unfortunately a lot of mistakes in these examinations because exactly what you were saying both, Michelle and Kayla, the VA examiner isn’t really taking into consideration the functional loss that it causes. They’re not estimating how much range of motion might be lost. Are there any other sort of common mistakes that you might see in a C&P examinations in your practice?

Kayla: I think something that I commonly see is they’re not necessarily, addressing all of those separate disability ratings. They are kind of glossing over and sort of maybe sometimes get tunnel vision based on what’s being claimed, or what the examiner might say. So when they’re providing opinions. they’re not necessarily looking at those sort of separate ratings that a veteran could potentially get and talking about those symptoms as well, which I think then in turn gives the adjudicators more tunnel vision when they’re making decisions on the claims as far as what the rating can and should be so I think that’s a pretty common mistake that I would see.

Christian: Yes, absolutely. Absolutely. So how would you guys say that veterans can improve their chances for being rated correctly for their orthopedic conditions?

Michelle: I would say when you go to an exam being really upfront and honest about the limitations you have because if you’re not reporting it during exams and you know trying to hold back a little bit. It’s really not going to show all the limitations that you have, talking about the fact that you can’t stand or you can’t walk or when the pain is so severe you can’t get out of bed. It’s really not showing the functional loss if you’re not reporting that stuff. So I think that that is very important.

Kayla: I agree and  Michelle like you were talking about earlier, I think you know lay evidence can also provide some additional supplemental information for VA when they are adjudicating these claims and specifically when you’re talking about things like functional loss, pain, limitations based on pain and instability in particular having that lay evidence talking about how it actually impacts your ability to function in everyday life, your ability to sit or stand or walk first for an amount of time can be really helpful in helping the adjudicator get it right?

Christian: Yes, absolutely. And be honest but thorough about what your everyday life is like, what your symptoms are, something that I see from time to time in examination. It seems like a common pleasantry. But you know, the examiner said I asked veteran how they were doing and they say they were doing great right? Because at how are you? Oh, I’m doing fine and then that gets recorded and you know, that’s you’re being polite and you should be, but you know, unfortunately your knee hurts a lot, right? And that should be what you’re talking about in that examination.

Michelle: Yes. I fully agree with that. You see that a lot.

Christian: Yes, absolutely. So any closing thoughts before we wrap up the knee condition talk today?

Michelle I would just say we’ve talked about a lot of conditions. We’ve thrown out a lot of numbers that go to diagnostic codes. We’re talking about a lot of medical terminology. I think it’s always important for people, if you think you’re underrated to also reach out to your attorney of veteran service organization, somebody that can look to see if there is additional benefits that you should be awarded in that you’re missing out on.

Kayla: Yes. And I would you know really going to just reiterate what Michelle had said. I think there’s a lot of things to consider when thinking about knee disability ratings and an attorney or a veteran service organization can really help you kind of determine what paths that you’re able to choose and how to get you the most benefit. It is really confusing and there’s a lot of things to consider. So, definitely seek help if you think you need that.

Christian: Absolutely. All great advice. Well, I think that does it for our conversation today. Thank you very much for joining in. Hope to see you again soon.