VA Disability for Chronic Pain
Jenna Zellmer: Good afternoon and welcome to CCK LIVE. My name is Jenna Zellmer. I am an attorney here at CCK practicing Veterans Benefits Appeals at the Court. Joining me today are Alec Saxe, also an attorney practicing at the Court, and Michelle DeTore who is an advocate that practices primarily at the agency level, and today, we are going to be talking about chronic pain. So chronic pain is something that is really interesting, because it affects a larger number of veterans than the general non-veteran population. Chronic pain occurs when a veteran or a person suffers from pain in a particular area of their body for over six months. So that lasts longer than the average amount of time that an injury would usually take to heal, and so it kind of manifests instead of just regular pain due to an injury into something a little bit bigger, a little bit more serious is what we call chronic pain. I think what is really interesting about chronic pain is until recently, the Court did not award service connection for pain alone. You had to have a diagnosis. So Michelle, can you give us a little bit of background about how the Court and how VA dealt with chronic pain in the past?
Michelle DeTore: Yes. Sure. So I think what is interesting, like Jenna said, for about almost two decades, you were only diagnosed if you would only get service connection for pain and maybe if you were a Gulf War veteran, because for Gulf War veterans, VA has separate regulations that allow for service connection for undiagnosed illness, and that is how VA saw it for a very long time. They did not see it as its own disability. They saw it as a symptom or something that did not have a diagnosis yet. So what came along in 2018 was the Saunders case, and essentially what it was doing was challenging VA’s definition of the first prong for service connection, which was a medical diagnosis. It is the first prong that a veteran needs in order to get service connection. There are three prongs which we will kind of talk about a little bit in a minute. So VA always saw that it was a medical diagnosis. You had to display that it was diagnosed. So what Saunders came and did and said that even without a specific diagnosis, disease, or injury, pain alone can serve as functional permit and, therefore, qualifies as a diagnosis. So at this point in time, now, a veteran could apply for service connection for chronic pain without having an underlying condition that the pain is related to. That alone constituted a disability which was something that for many years, many veterans, as soon as they applied for, VA would just reject saying that you do not have a medical diagnosis. So now, that kind of overturned years and years of case law in kind of how VA saw cases. So that is just a very big change for them.
Jenna: Great, and you mentioned Saunders. I think I should note that we did have a video awhile ago when Saunders first came out. And so, it is interesting to kind of look at the past years and see how that particular case has changed the landscape of veterans law. I would also– if you are checking out that video– encourage you to check out our website. It is cck-law.com. We have a lot of great informational videos about chronic pain and all sorts of different issues you have mentioned. Service connection, we have a whole video on that. So, please feel free to check out our website to leave a comment in the box below, and we will do our best to answer any questions that you have .
Jenna: So moving on, Alec… Michelle had mentioned that the Saunders decision changed an element of service connection. So can you talk a little about that? What do veterans need to still prove to get service connection for chronic pain?
Alec Saxe: Of course. So yeah, as Michelle touched on, there are three essential elements to establishing service connection. The current disability element in service events or injury or disease, and then the third nexus element between the current disability and service. So this decision in Saunders really impacted that first element of service connection of a current disability. Whereas, before you needed to have a diagnosis, like we said, of a condition. Now, you can satisfy that first element of service connection simply by showing that you have pain or some other types of symptomatology that is functionally impairing, reaches a level of functional impairment and earning capacity. So the most common example, probably, is something like chronic pain- do not again necessarily need a diagnosis of degenerative disc disease or arthritis or even something like an acute back sprain. If the evidence shows that the back pain is functionally impairing, you do not have the diagnosis necessarily, but you have the pain and it is functionally impairing then it is enough to satisfy that first element of service connection. So that said, a veteran still must establish the nexus element and then service element that the nexus element connecting the current pain and functional impairment with service.
Alec: Oftentimes, this is is the most difficult element of service connection to establish. There are essentially two ways or three if you look at it, to establishing service connection. That is most commonly through direct service connection with service or medical records indicating an injury during service and pain resulting therefrom, and the pain would directly limit the veteran’s functional capacity. The other option is with secondary service connection, and that talks about pain that is from a service-connected disability causing another disability. And, there is another somewhat form of secondary service connection that comes in the form of aggravation. So pain aggravated by service or service-connected condition, the role of an inquiry is basically whether military service exacerbated the condition beyond its normal progression. I know that sounds a little like secondary service connection, but there is a small nuance and difference. So yes. So it is direct service connection, secondary, and aggravation.
Jenna: So once a veteran achieves service connection, how would they be rated? Or does VA have a specific diagnostic code for pain?
Alec: Good question. No, VA does not have a diagnostic code for pain, generally, per se. Although for orthopedic conditions, you may have received the minimum if that is for rating, for painful motion. In general, like I said, there is no diagnostic code for pain. So VA generally will look at the symptoms caused by the chronic pain and whether they are ratable under its various diagnostic codes. Oftentimes, this involves comparing the pain with its resulting symptoms to the various diagnostic codes such as the musculoskeletal system which is a common example for this type of pain.
Jenna: Great. So I think, for example, if a veteran were to become updated for orthopedic pain, in your previous example, or the pain caused by military service– so an example of a direct-service connection would be– once they have established service connection, you establish there is an in-service injury; they do not have a current diagnosed disability, but they have currently diagnosed back pain. Then there is the nexus between that. The VA would maybe– if they are looking at the musculoskeletal diagnostic code, they are going to look at how that back pain limits the veteran’s range of motion, because that is what that diagnostic code is really based on; your ability to bend forwards, sidewards, backwards, rotate your waist. Then, VA considers the whole host of factors such as weakness; if your back pain flares up, things like that. That is what VA is going to look at when they are going to rate your back pain.
Jenna: Just the same way, as Alec said, if you did have a diagnosis of degenerative disc disease or degenerative joint disease. That is kind of how VA would rate it. Alec mentioned secondary service connection. So Michelle, how would VA rate a secondary service-connection example of pain?
Michelle: Sure. So a lot of times when you have a condition, it does not necessarily just stop there. So let us say you have chronic pain, and then I will use an example of medication use, a lot of medication is for chronic. So narcotics, a lot of the side effects gastric upsets. So you got maybe a diarrhea; you have reflux. Those conditions can be called IBS and GERD.
So what VA does is, if they find that you have that condition secondary to the pain or in this case, the medication used to treat the pain, they would rate it under a separate diagnostic code for GERD or IBS based on the of that condition and the severity they find of that condition. So I think that is very important when you are applying for, let us say, your chronic pain, to also think about the secondary conditions that you have that go with the pain just for effective date purposes and to make sure you are getting everything in when you are applying.
Jenna: Great. I think that is a good point. You mentioned pain, chronic pain can– sorry, pain medication. Chronic pain can also cause a whole number of other debilitating symptoms; depression, anxiety. We see a lot of clients with depression, because their pain affects their lives so dramatically that they have psychiatric symptoms due to that. We have a lot of sleep impairment due to pain. The pain is so bad that veterans cannot sleep at night, or they wake up due to pain. There is a lot of different disabilities that you can link with pain in the secondary world.
Jenna: Alec, you had mentioned aggravation as an example. Well, it is a secondary condition, but it is a form of secondary-service connection. So do you have an example of how an aggravation claim would work?
Alec: Yes. Sure. So an example of the aggravation would be– I met a veteran who has a, let us say, knee injury from playing a sports before service. Military service aggravates that knee condition beyond its natural progression. Veteran can have that knee pain service-connected by the aggravation. An important caveat to that is this assumes the veteran entered the military in sound condition, and there is a presumption that all veterans entering the military are in sound condition unless there is a condition noted upon entry. It requires the examiner at the entrance exam to note it explicitly. So if you had any injury or service brought you a found fit for service and, again, that was aggravated in service, you may be entitled the service connection for that pain as a result of the aggravation in service.
Jenna: Great. So yes. So those are kind of the different ways that you can get service-connected for your pain. One thing to note is to really think about how you are going to prove your claim. So it is not enough just to say, “Well, now VA awards service connection for pain, and I have pain. So I should get service connection,right?” You still need to prove– as Alec had mentioned before, you need to prove all three elements of service connection. One really important thing the VA is going to consider when it adjudicates your claim is the presence of medical records. That is going to be both service treatment records, and it is also going to be current treatment records. If you can get an opinion from your treating physician that links that pain to service in one of the ways that we mentioned before, that is going to go a long way to helping you get service connection. What else do you guys think is necessary to prove a service connection claim for chronic pain? Michelle, what do you think?
Michelle: I think a big thing is that you need to be– you were talking about medical records. You need to be treating for it. You need to be showing that you have the condition. I also am a big fan of lay evidence, because sometimes there are gaps in treatments. Sometimes maybe you have had an event in service, you did not treat for many years. So, lay evidence could help fill in the gap as to maybe why you were not treating. It can also fill the gap to the severity of the condition and to show that the symptoms started in service and continued in and just start back up again years and years later.
Jenna: Yes. I think that is a really important note. In our practice at Court, I am sure Alec will agree that lay statements are really helpful in filling those gaps between treatment. Alec, you had mentioned before the need for a nexus and why that might be the most difficult part. So can you talk a little bit about that? What is the standard to prove a nexus in order to get service connection and why that is so important?
Alec: Sure. So the standard viewed by VA is at least as likely as not standard as the pain. At least they are likely as not related to service or the service-connected condition. It is a fairly level standard for veteran as it should be. But, again, like I said earlier, a lot of these cases do come down to this third element of service connection. And that, oftentimes are the difficult to show, because while we talked earlier about how lay testimony is helpful in discussing their current symptomatology or pain. Especially in this context because VA recognizes that veterans and everyone, really are confident to report observable symptomatology, pain being kind of the most obvious one, right? So the medical nexus element is that third step and a lot of time, the hardest link where oftentimes you will need a medical professional to provide that nexus. Because VA seems, for the most part, that lay[?] people are not competent to relate a current condition with service.
Jenna: Great. I think it is important to note that often VA will obtain VA examinations to determine if there is a nexus there. We have a former CCK live video, all about VA medical examinations and what you should do to prepare for them. I think the number one takeaway there is that you should always attend them, and you should always request a copy of them. You are entitled to one. They are not going to give you one unless you ask for it. But if you can obtain a copy of that opinion from the VA Examiner, you will be able to read it over and see maybe that they wrote down something that you said that you thought; you had thought you were clear but maybe it was unclear. Maybe you can respond to that exam to make sure that the VA has the correct information when it is making its decision. That is really helpful.
Jenna: So, we have really focused on how to get service connection for chronic pain. But we have a lot of videos and a lot of information once we get service connection, how you get an increased rating. So, we just wanted to touch briefly on kind of evidence that would help an increased rating, claim for pain, particularly when a veteran is pursuing TDIU which is Total Disability Due to Individual Unemployability. That is when VA awards you with total rating based on your inability to work due to your service-connected disabilities. That includes pain, and we have a lot of information about TDIU. I would say one of the biggest things to know is that the Court has recognized that pain can contribute to inability to focus, inability to perform aspects of work in terms of sitting, standing, et cetera. So, if you do have chronic pain and you are not working or cannot work and thinks that is due to that, TDIU is definitely something that you should consider talking to your service rep about or your attorney, whoever is helping you file your claims.
Jenna: So Michelle, do you have any final thoughts on kind of the TDIU aspect, how to get an increased rating in general?
Michelle: I think one big thing is a lot of times for the increased ratings and the TDIU, it is not just based on a range of motion for a lot of the pain you see. So I think that, again, I will go back to the lay evidence and new medical evidence. You want to be showing what the functional loss is like your ability to sit, your ability to stand, your ability to walk, your ability just to function on daily basis. VA is supposed to be considering that. So make sure that you are highlighting that if you feel you are only being kind of rated based on your limitation or range of motion.
Jenna: It is good takeaway. Alec, do you have any closing thoughts or tips for both either service connection for chronic pain or increased ratings?
Alec: Hey, Michelle has stolen my thunder a little bit there. But I think it is well taken to not only the focus away from the mechanical with all that the rating criteria diagnostic code but the nature that the evidence is there that shows thus limitations and everyday functional activities not just work. That is important to know, but things that you can show that it is difficult to sit at your desk all day if you have a desk job, due to the pain and their back or your knees, that is great. And, obviously any type of physical type of labor should be really obvious as to what type of statements or medical avenue to relate that pain and how it impairs your ability to do that physical or manual labor. So everything we have said today, for that.
Jenna: Great. Well, thanks for joining us today. As I mentioned, please feel free to check out our website at cck-law.com. We have a lot of information about chronic pain and also some other disabilities that you maybe entitled to accommodation for. So thanks for joining us today, and we will see you next week.
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