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VA Disability for Neck Pain

Video Transcription:

Jenna: Good afternoon, and welcome to CCK live. My name is Jenna Zellmer, joining me today are Alyse Phillips and Kevin Medeiros. All three of us represent veterans before thecourt of appeals for veterans claims in arguing about whether or not the VA made a legal error in denying veterans their benefits. And so today we are going to be talking about VA disabilities for neck pain. We are going to be talking about first, how you get over the initial threshold of determining service connection. And then we are also going to talk a little bit about how VA rates neck pain. As always, we will have more information on our website at cck-live.com. We will try to answer any questions in the comments below. And so let us just kick it off. Kevin, do you want to talk a little bit about how a veteran can get service connected for neck pain?

Kevin: Sure. Service connection for neck pain is a lot like service connection for other conditions in the sense that you have to show that the pain is related to your military service. So, in general, you need three elements to establish service connection to diagnosis. A Nexus, which is that relationship to service and something that had happened in service. But today we are talking about neck pain, we are just going to be dealing with how to establish the the service connection in the absence of an actual diagnosis. So how to get service connection for neck pain without or say arthritis, for example. So in order to establish service connection for neck pain, the pain needs to be chronic, long-lasting, or constantly recurring. VA will not provide compensation for neck pain if there was one time neck pain but has since resolved. So there needs to be some sort of a showing that the pain is ongoing and that it does impair a veteran’s functioning on at least a recurring basis.

Kevin: Common instances of neck injuries that can satisfy that in service element that I alluded to earlier some are whiplash, spinal cord damage, a disc injury, nerve pitch injury, repetitive strain. And then actual diagnosis which can be causes of neck pain that are degenerative disc disease, foraminal stenosis, and intervertebral disc disease. So those are some common causes of neck pain. And the last thing that I wanted to know about getting service-connected for neck pain is that a veteran can get service connection if they had pain prior to their service, and their service aggravated or worsens the pain or the condition that they entered service with. So that is a little bit of a different scenario, but there is that avenue available to veterans.

Jenna: Yeah. Aggravation of a pre-existing condition is always a little bit more complicated. I think I would recommend to veterans to talk to your veteran service rep or your attorney, whoever is helping you with these claims and make sure that they can take a look at your entrance exams to kind of determine under what standard you might fall. So as everything in VA, it is really complicated. It is not as simple as it seems and so it is really important to talk to your rep or your attorney because there is a lot of ways that you can fall into a trap and not have the best argument ,and we want you to have the best argument. So great. Thanks Kevin. So once you establish service connection, you know that does not automatically necessarily mean you get a rating, it is possible you could get a non-consumptive compensable rating or you could have a rating anywhere from zero to a hundred percent. Well actually, probably not a hundred percent. I think Alyse is going to talk a little bit about that. But Alyse, explain to me once a veteran is service-connected for the neck, what is likely to happen? How is VA gonna rate that neck pain?

Alyse: So, as with any condition that could service-connected, just because you have service connection like Jenna said, does not mean that you have a compensable rating. So what they are going to do is they are going to actually look at not just whether it is related to service, but the second question is how severe is it? And how does it affect your day-to-day? Most neck conditions actually involve the cervical spine. So what that means is that VA most typically will be looking at the general reading formula for injuries to the spine, which is under Section 38 CFR or .71a. Like Jenna said, some rating criteria is do go up to a one hundred percent rating, but the actual maximum rating that you can get for a neck condition on Darfur .71a is forty percent. So just to touch upon some of those ratings and what they look like, just a quick overview of them, but they look to determine how severe something is, how much movement you have in your neck or your spine? So the most severe, like we said, is a forty percent rating. And if you get a forty percent rating for your neck only, you are going to have to have unfavorable ankylosis of the entire cervical spine.

Alyse: So the difference between unfavorable and favorable ankylosis is that unfavorable ankylosis means that you do not have movement of your spine. Very basic explanation of it. Unfavorable means that your neck is stuck in an unnatural position, so maybe it is stuck like this or stuck to a side. Whereas favorable ankylosis would just mean that it is stuck in a neutral or natural position. So for a forty percent you do need unfavorable ankylosis of the entire cervical spine. It is rare and it is hard to get a 40 percent rating. moving down the rating criteria. You will see probably more common situations where you are dealing with limited flexion or forward flexion is specifically what they are looking at. For example, thirty percent, you are limited to 15 degrees. Yeah, you cannot go any over 15 degrees. For twenty percent, you are in between fifteen and thirty. For a ten, you are in between thirty and forty and goes on. A thirty percent can also be granted if you have favorable ankylosis of the entire cervical spine. So like I said, you are not moving, but it is in a natural or you know neutral position versus like being bent like this. And at twenty, you are also going to be looking at a combination of range of motion. So not just forward flexion, but you are also looking at the way that you can move side to side and same with the ten percent. The way that they will measure this is a C&P exam. They will actually take a tool that will measure how far you can bend your neck.

Alyse: So if we want to also just touch upon some examples of neck conditions, like I said, cervical strain, that is going to be a common torn muscle or tendon in the neck. We will also see degenerative arthritis in the spine. Again, that is involving your cervical spine and cervical spine stenosis, which is a narrowing of the spinal canal.

Jenna: Yeah. And I think it is important, like you mentioned. It is just important to note again that this is a general formula for rating spine disabilities, so it does not really matter what your diagnosis is, whether or not you have cervical spine or degenerative arthritis of the spine. You are going to be rated under the same criteria that Alyse just mentioned. And I think it is really great that we are on video because you can move your head and your neck, right? And you can show exactly. I think sometimes, when it is written out, like many things that VA has written, it is kind of hard to understand, it is hard to kind of place in daily life. But so, I would really encourage everyone to check out our website. We have pictures. We have kind of a translation from VA legal speak into the English language. And so hopefully that can help you read the rating criteria and kind of determine where you think you might fall. And just one final note, you mentioned that VA will obtain these measurements at your VA exam. We have a lot of information on our website and former CCK lives about going to VA exams, what to expect. But I think the most important thing is just if you do receive notice scheduling you for a VA exam, definitely do not ignore it. It is really important that VA obtain this information. They are going to make a decision on your claim whether you attend or not. I know right now, a lot of people are concerned about attending VA exams in person. If you cannot attend for any reason definitely reach out to VA. Have your rep reach out to make sure that they can try to reschedule you.

Jenna: Great. So moving on, one other thing we wanted to note was the cervical spine is an orthopedic condition. So it affects your musculoskeletal system. And that is why it is rated under that general formula for reading the spine. However, there are some conditions that can be secondary to your neck pain that are rated under a different diagnostic codes. The most common of this is radiculopathy, which is essentially a compressed nerve in your spine. So, as Alyse had demonstrated moving her head, if your neck is stuck in a particular position, or you cannot move it to a certain degree, that might involve compressing nerves that are in your neck, which then lead to numbness, tingling, any sorts of symptoms that radiate down your arm and into your hand even. And that is radiculopathy. If you experience any of those symptoms, it is really important to talk about them to your VA examiner. They can diagnose you with radiculopathy and that would be rated. If they determined that it was related to your neck condition, that would be rated under a different diagnostic code so you could get a separate rating for that.

Jenna: Other common conditions that can be secondary to your neck are migraine headaches, as well as psychological disorders, like depression and anxiety. If you are in constant pain, that is going to affect your mood. It is going to make you unmotivated. It is going to make you maybe depressed. So anything that you feel like is a direct result of your neck pain, definitely make sure to talk to your VA rep or your veteran service rep, talk to your VA examiner, talk to your private examiner. Just make sure that everything is documented and that you can make sure that if a doctor determines that it is related to your neck, make sure that you get that compensation to which you are entitled.

Jenna: Kevin, you had mentioned earlier that we are mostly focusing on neck pain, not necessarily any particular diagnosis. I am wondering if the veteran did not have a diagnosis of cervical strain or diagnosis of degenerative arthritis, if they went to the doctor and they just said you have neck pain, you don’t have any diagnosis, what what could a veteran do at that point?

Kevin: Right. So for a long time, VA law did require a diagnosis, an actual diagnosed condition. So a veteran could not get compensation for just their pain. They needed something else to explain the underlying cause of the pain which might not necessarily be the case. In 2018, the Federal Circuit issued a decision called Saunders, that held that VA law does not actually require the diagnosis. So you do not need something like arthritis to explain your pain. All you need is the pain and then a showing that the pain caused functional impairment in your earning capacity. So we would always encourage veterans in submitting lay statements to describe more than just their pain. They want to describe to the VA and the adjudicator, who is taking a look at their case, how their pain might affect their ability to perform their work or the normal working movements of their body. So, “I am in so much pain, I cannot twist my neck to the left and this affects me this way.” You want to have something in addition to just the descriptions of pain because that is how you will be able to get a compensable rating because you need that additional step, not just the pain.

Jenna: Great. And I think, yeah. You mentioned the Federal Circuit. Sometimes I think it is helpful to mention the names so that veterans can look them up. So the Federal Circuit case is the Saunders v. Wilkie, and then after Saunders v. Wilkie, the CAVC, the Court of Appeals for Veterans Claims, issued a decision kind of clarifying what they thought was necessary, which is what, Kevin you are talking about with that additional step that functional impairment, which is Wei. Is that Wei v. Wilkie, too? Yeah, that is Wei v. Wilkie. So if you look up either of those conditions or either of those decisions, you can read a little bit more about them. Wei was a CCK case. We did a great job on that, Alyse. Good job. But it is just helpful to kind of read what the court thinks is necessary so that you do not want to be denied just because you did not know what proof you needed, right? So it is really important. And then finally, we always have to talk about TDIU. Alyse, do you want to talk a little bit about TDIU in the context of service-connected neck pain?

Alyse: So we did want to touch upon TDIU because like we said, the highest schedule of rating that you are going to most likely see for a neck condition is going to be a forty percent, unless you have other conditions secondary to it. But you could still potentially get a hundred percent rating based on the functional limitations of your neck condition. If you can show that you are unable to perform substantially gainful employment due to your neck in addition to any other service connection conditions that you have. So just to touch really briefly upon it. There is two different ways that you could potentially get TDIU. The first is under 4.16a, which is what we call schedular TDIU, and to be eligible for that, you either have to have one condition rated at sixty percent or two conditions with at least one that is a minimum of forty. The second where they both combine to at least be a seventy. So that second option would be what you could potentially get a Scheduler rating for the net condition under.

Alyse: Say you have a forty percent for your neck and then another I do not know, maybe fifty for migraines. You could potentially be eligible for schedular TDIU if you can show that you are unable to perform substantially gainful employment. However, I did want to say that you do not need to meet these schedular ratings to get a reward of TDIU. The other option is under 4.16b, which is sometimes referred to as extra schedular TDIU. And what that basically means is despite your ratings, you are still unable to perform substantially gainful employment. So therefore, you are entitled to unemployment benefits under the VA system, also known as TDIU. So even if you do not meet that 40 percent rating, and obviously you will not meet a one hundred percent rating, schedularly, you could still potentially get a one hundred percent rating through this avenue.

Jenna: Yeah, and we have a lot of information on our website about TDIU. We have done a lot of CCK lives in the past about TDIU. So hopefully our listeners and our watchers are familiar with the concept. But if you have any questions, feel free to reach out to either us or to your veteran service rep. One thing I will note is that the schedular versus an extra schedular, you definitely touched on it. It is a little bit complicated. VA uses the term extra schedular and a couple different regulations and they mean different things in TDIU versus the rating schedule itself. And so, I think the important point is, as you noted, that just because you might be under extra schedular for TDIU, that does not necessarily mean that it is an automatic denial. And so, if you do see something in a rating decision or a board decision that you think the VA got wrong about extra schedular definitely, reach out to your rep or your attorney. It’s a complicated area and it is continuing to evolve. So we want to make sure that if you are truly unable to work due to your service-connected condition, you do get entitlement to TDIU because that is what you are entitled to.

Jenna: So as I have mentioned a few times throughout this video, you can definitely visit our blog at cck-thought.com. We have a ton of videos on YouTube and do not forget to follow us on social media we are on Instagram, we are on Facebook and Twitter. I think those are all three, but I am sure we will link them in the comments below. Kevin or Alyse, do you have any closing remarks?

Alyse: Jenna, you had already touched upon this but it is really really important especially if any ortho condition that you attend your CNP exams. While we always encourage people to submit bunny statements and lay statements when we are working with rating criteria that are pretty mechanical, it is important to get that medical evidence in, so we do encourage you to attend CMP exams. Also, you can get private results from your doctors.

Kevin: And I was just going to add one point about the lay statements that I have mentioned earlier in that. It is very important to be as detailed as possible in submitting your lay statements about how the pain actually affects your working capacity.

Jenna: Thanks. I think that is perfect because it is not just one or the other. It is the combination of the objective medical evidence and the lay statements. That really makes the strongest case possible. So that was great. Thanks everyone. I hope you have a great day and we will see you next time at CCK Live. Again, my name is Jenna Zellmer. Joining me today were Alyse Phillips and Kevin Medeiros. Thanks.