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WINNING a VA Disability Rating for Back Pain

WINNING a VA Disability Rating for Back Pain

Video Transcription

Mike Lostritto: Welcome everyone to another edition of CCK Live. My name is Mike Lostritto. I’m an attorney at CCK. And joining me today I have Alex Gamache and Nick Briggs.

Today, we’re going to be explaining how veterans can get a VA disability rating for their back pain.

So, generally speaking, veterans experience or can experience a range of different back injuries related to their military service. Back pain can occur due to the stress of training, combat exposure, motor vehicle accidents or other accident, falls, carrying heavy gear, or any really other common duties that are required due to active military service. Chronic back pain can limit the veteran’s ability to work, earn a living, and even perform basic activities of daily living such as bathing and dressing. Back pain often develops without any identifiable cause actually.

Oftentimes, back pain can result in or include things such as muscle or ligament strains, bulging or ruptured discs, arthritis, osteoporosis, and other symptoms of back pain very often include shooting pain, aching pain, burning or stabbing sensations, cramps, or other spasms. It runs the gamut. There is a wide range of different symptoms that can result or be the cause, or really stem from a veteran’s back pain.

Before we even talk about ratings for back pain or compensation for back pain, the first step in proving your claim is establishing a service connection for the back pain. So Alex, can we talk a little bit about how a veteran would go about establishing that their back pain or their back condition is related to their military service?

Alex Gamache: Yes. If veterans can establish that their back pain is a result of their military service, they may be eligible to receive VA disability benefits in the form of monthly compensation in VA health care. Generally, veterans only need to provide three things to receive an award of service connection. The first being a current diagnosis of a back condition, the second being an in-service event, injury, or illness, and the third being a medical nexus, which is basically a link between the current diagnosed back condition and the in-service event, injury, or illness.

However, there is an exception to the first element of direct service connection involving the current diagnosis. In April of 2018, the Court of Appeals for the Federal Circuit held, in Saunders v. Wilkie, that VA must award disability benefits for pain due to military service. This basically means that if a veteran has pain related to their time and service, but does not have an actual underlying medical diagnosis of a back condition, they can still receive VA disability benefits. Such veterans may be eligible to receive service-connected compensation for back pain stemming from their time in service, even if they do not have a specific diagnosis that serves as a cause for the pain. It’s important to note that this only applies if the pain causes functional or occupational impairment or incapacity.

Mike: Alex, we’re talking here about direct service connection, right? The concept of direct service connection. Meaning that the veteran’s back pain or injury stems directly from something that occurred during military service, or that the injury or condition incurred during that time in service.

There’s another concept though that I know we’ve all seen fairly routinely in our claims and our cases here, known as secondary service connection. It’s another avenue essentially, for veterans to pursue, to argue when they are filing a claim and arguing appeal to try to get their service-connected condition or back condition granted. Can you talk a little bit about the secondary service connection, what that is, and what that entails, as it relates to back pain?

Alex: Secondary service connection is basically a disability that resulted from a condition that is already service-connected. To establish secondary service connection, veterans should demonstrate two things when filing these claims. The first is a diagnosis for that secondary condition, and again, providing a nexus or that link between the service-connected condition and a secondary condition.

A few common conditions that are secondary to, let’s say, service-connected back pain would be radiculopathy, depression, and sleep disorders. We have linked below a video to discuss more about secondary service connections for those issues.

On the flip side, this can also work in the reverse. If a veteran develops back pain due to a service-connected condition, they may also be able to file for back pain as a secondary condition. Filing a claim for a secondary service connection can be extremely beneficial for veterans. Additional conditions being rated increases the combined rating and therefore increase monthly compensation, and this may also qualify you for additional VA benefits based on your rating or condition.

Mike: One thing I think is important to just note is that if a veteran is looking to file a claim for their back condition or back pain, they don’t necessarily have to specify in the claim that they’re seeking service connection based on a direct theory, as we first talked about, or a secondary theory, Alex, as you just talked about. Those are arguments and theories of entitlement that they can raise, certainly with their claim, but also on appeal. They don’t necessarily have to be that specific when they’re filing a claim, though it can help to lead to a grant.

Once the veteran goes through kind of the difficult process of getting the condition granted, then, Nick, we turn to VA having to rate that condition. And oftentimes they will rate that based on the severity of that condition. So can you take us through, and walk us through how VA goes about rating back conditions and back pain?

Nicholas Briggs: Yeah, absolutely, Mike. To start VA rates back conditions under 38 CFR 4.71, which is the schedule of ratings for the musculoskeletal system. The criteria listed under the regulation are based largely on the veteran’s range of motion measurements with additional consideration of functional loss.

And when we talk about the range of motion, what we mean is the range of flexion, i.e., bending and extension, straightening. VA requires that this range of motion be measured using a goniometer, which is specified at 38 CFR 4.46. And once the range of motion measurements are taken, VA may assign a rating anywhere from zero to 100% depending on which segments of the spine are affected, and what the measured range of motion is in that particular segment of the spine.

One thing to note at the outset is that there are three main segments there’s regulation contemplates, the lumbar spine, the thoracic spine, and the cervical spine. In order to receive a 100% rating, you need unfavorable ankylosis of the entire spine, top to bottom. But the rest of these individual ratings assigned, ranging from 10% to 50%, involve different impairments of the different segments of the spine.

For example, a 30% rating can be assigned for the cervical spine if the range of motion is 15 degrees or less. So, the cervical spine as you see from the regulation is often rated on its own, whereas the thoracic spine and the lumbar spine are often rated together under a single assigned rating. For example, a 20% rating could be assigned for the forward flexion of the thoracolumbar spine between 30 degrees and 60 degrees.

Again, the process works by VA taking the range of motion for the entire spine, figuring out which of the segments are service-connected, and then assigning a rating based off of the limitation of flexion or forward flexion, or whatever it is, whatever the case may be.

Importantly though range of motion isn’t the end all be all for assigned ratings under the general ratings formula for musculoskeletal disabilities. For the back, in particular, they need to consider whether the veteran has intervertebral disc syndrome or IVDS, which provides an alternative schedule through which a veteran can be rated based off of episodes of incapacitation and the prescription of bed rest.

Unfortunately, doctors don’t really think of back disabilities in terms of incapacitation and bed rest anymore. But the regulations do allow for consideration of additional factors like flare-ups and functional loss, which we’ll talk a bit more about later.

Finally, one thing to note is that if a veteran experiences back pain that causes the sort of functional impairment that Alex talked about earlier, section 4.59 guarantees that you’ll get at least a 10% rating for that pain because it’s assumed that the pain is causing at least that 10% level of impairment.

There’s really no non-compensable rating for a back disability. But whether or not you get a 10 versus a higher rating, it’s going to depend, again, both on the range of motion measurements and the functional loss that we’ll talk a bit more about later.

Mike: There’s clearly a lot that goes into rating the back, obviously, as you can see and Nick you just articulated, a lot of things to consider. One additional thing to consider is the presence of flare-ups in the condition. In addition to the range of motion measurements and the functional loss, VA examiners should address the presence of any flare-ups.

Oftentimes veterans will have a very significant back condition, but it won’t be present at all times. Sometimes it’ll be worse than others, other times it will recede. And so, VA examiners are really tasked by law to explore how the range of motion measurements are impacted by the presence of flare-ups.

If a veteran experiences flare-ups of back pain, they may be eligible for a higher evaluation because of the impact that it might have on the range of motion measurements. If an examiner does not consider the impact of flare-ups, then that examination can actually be challenged, and veterans and advocates should look to challenge those exams as inadequate for VA rating purposes because they did fail to consider the presence of flare-ups when the examiner took the range of motion measurements.

Like we said, a lot to consider when considering arguing for a proper rating or adjudicating for a proper rating. One thing, Nick, I’m going to turn to you to think a little bit about is how back pain, or a veteran’s service-connected back condition, might impact their ability to work, and what impact that might have on the filing or raising entitlement to TDIU. Can you walk us through that a little bit?

Nick: Absolutely. Again, as we’ve kind of talked about back disabilities are rated in two interrelated ways, the range of motion measurements themselves, and then the actual functional impact and functional loss that the back disability causes.

And oftentimes, in representing the veterans that we represent, we sort of see that the ratings are often out of step with just how severe the veteran’s condition is. And part of that’s just a function of, the veteran may be able to bend down so far, but that same veteran might also be unable to sit for more than 5 or 10 minutes at a time due to their back pain while they’re sitting down. And if they can’t sit, they can’t stand, and they can’t walk around, it really doesn’t matter how far they can bend forward if they can perform those even basic activities.

Even if the schedule itself doesn’t get you higher than a 20% or 40% rating, that’s where other alternatives can come into play, such as unemployability benefits.

Because in that same scenario, the veteran might have the range of motion measurements that only gets them that 20% rating, but they might be unable to stand or walk for more than a few minutes at a time or they can’t sit at a desk for more than an hour before they need to get up, get around, do those sorts of things.

That’s where TDIU sort of steps in. If the veteran is unable to work due to their back disability, they can’t do sedentary work, they can’t sit at their desk, they can’t meet the requirements of their job, they can still get a 100% rating for that unemployability that the back causes. Even if the range of motion measurements themselves limit the schedular rating available to the veteran.

That’s why it’s always important to look for both additional benefits in the form of TDIU and potentially SMC if your back disability is severe enough to prevent you from being able to, say, bathe or dress yourself without the assistance of a spouse or family member. There are always more benefits available even if you think the schedule is underrating your condition just based off of how the range of motion measurements work.

Mike: What’s great about TDIU and SMC is that if a veteran has a pending increased rating for a back condition claim, they’re not required by law to file a separate claim for either SMC or TDIU. They can simply in an argument submitted or evidence submitted to the Regional Office, raise the issue. They can say my back condition is so severe that in addition to an increased rating based on the scheduling requirements, as Nick you were just talking about, I’m also entitled to unemployability benefits. I’m also entitled to SMC benefits stemming from the severity of my pending increased rating back claim.

I think it’s just really important to note that these additional benefits are not ones that necessarily have to be filed separately. They can be raised and should be raised whenever applicable. And VA is required to consider them when the evidence is there to at least, in part, support those additional benefits as part of that underlying claim.

Thank you, Alex. Thank you, Nick. I actually think that’s all that we have for today. We hope this video provided you with some helpful information to win your claim for back pain.

If you were denied benefits or believe you deserve a higher rating, consider reaching out to the accredited advocates at CCK where we can assist with your appeal.

More veteran benefits and VA rating information can be found on our blog, so please check it out. Or through other videos that we’ve published. Please check those out. Otherwise, thanks for tuning in, and be sure to subscribe to our channel and let us know how we’re doing.

Thank you.