Flare-Ups and VA Musculoskeletal Disability Ratings

As anyone with a trick knee or a troublesome shoulder knows, musculoskeletal injuries don’t always heal completely. The pain might fade for a while, only to return in spades. In VA disability terms, this is commonly known as a flare-up. The precise cause of flare-ups might not be easy to ascertain. Many injuries flare predictably with repetitive use. Others might be caused by stress or changes in the weather. Often, though, the cause is a mystery. One day, an arthritic knee might be a little creaky and the next it can be agonizing.

The existence of flare-ups often causes musculoskeletal injuries to be underrated with the VA. The Court of Appeals for Veterans Claims has said flare-ups must be accounted for in rating these types of injuries, yet VA examiners rarely follow their guidance. We’ll discuss what to do when a VA examiner fails to account for flare-ups.

Rating Musculoskeletal Injuries

The VA typically rates musculoskeletal injuries according to their loss of function. Another way to think about this is to consider how much an injury takes away from a Veteran’s daily ability to live his or her life. To determine the level of disability, the VA schedule of ratings gives guidance based on the location and type of injury. For example, a knee injury might be rated based on the limitation of flexion or extension, measured in degrees.

For most injuries, pain warrants a 10 percent disability rating. Many veterans balk at this, protesting that their level of pain constitutes much higher than 10 percent, particularly during a flare-up. Perhaps on a normal day they would be able to work standing up, a requirement of their job, but on a flare-up day they must sit. On that day, their painful disability becomes much more disabling than 10 percent.

Considering Flare-Ups, Then and Now

The Court of Appeals for Veteran’s Claims has made several key rulings about flare-ups. In 1995, in the decision of DeLuca v. Brown, the Court ordered the VA to consider whether a flare-up significantly reduced a veteran’s ability to function and instructed higher ratings be provided if it did. However, in the 2010 case of Jones v. Shinseki, the Court did allow for an exception if it would be impossible to determine the functional impact of a flare-up without resorting to speculation.

What was intended to be a small carve-out turned into a common excuse for VA examiners not to explore the impact of flare-ups. Almost every examination which purported to explore flare-ups did so inadequately. Examiners checked the box that they could not opine without resorting to speculation more often than not. When they did explain why they felt they couldn’t offer such an opinion, most examiners expressed that they were not seeing the veteran during a flare-up, therefore it was purportedly impossible to know how a flare-up affected them.

The Court has recently elaborated on their earlier opinions, making it clear that they will not allow a VA examiner to simply say that he or she could not give an opinion without speculation. In the 2017 case of Sharp v. Shulkin, the Court instructed VA examiners to find out about flare-ups the obvious way: by asking the veteran. VA examiners were already obligated to take the veteran’s statements about his or her condition into account when making their assessments, but the Court has renewed that obligation regarding to flare-ups.

VA Examiners vs. Private Doctors

Because of these recent cases, a VA examiner must look at all relevant facts, including the veteran’s statements about his or her condition, in providing a medical opinion. The Court still permits examiners to opine that they cannot give an opinion without resorting to speculation, but the examiner must provide details about why he or she could not offer such an opinion. Unless the opinion makes clear that the examiner accounted for all relevant information, the examination will be inadequate and the veteran must be afforded another.

If VA examiners do an inadequate job exploring the veteran’s flare-ups, the VA is obligated to provide another examination. However, as most veterans know, sometimes there simply isn’t a way to get a good VA examination. For the most part, veterans cannot pick the doctor, the venue, the day, or the level of detail provided by the examiner. That is why many veterans choose to use a private examiner to provide an alternate medical opinion.

Private medical examiners usually have more time to devote to the veteran in providing their opinion. If they see the veteran regularly, they will have more insight than a VA examiner who briefly reviews the veteran’s file. If a veteran does go to a VA examiner, it is important to provide the examiner with the right tools to give the best medical opinion possible. Regarding flare-ups, it is vital that the examiner provide an opinion about how much function is lost due to them.

Some veterans may not be able to afford a private examination. For those veterans who need to rely on VA examinations, the best thing is to be prepared. They should go into the examination prepared to talk about flare-ups and particularly the functional loss caused. Records which show functional loss, such as notations of absences from work, they can be taken into the examination to show the examiner. While a veteran may not be able to control what the examiner writes down, providing succinct information and evidence will direct their attention to the right things.

Flare-ups can cause a disability to become worse than the rating schedule provides. While there is no rule that examinations be conducted during a flare-up, examiners must still provide opinions about additional functional loss. This can result in a higher rating.

Veterans Serving Veterans

Berry Law Firm was founded by Vietnam War veteran and legendary trial lawyer John Stevens Berry Sr. We are proud to have many military veterans among our attorneys and staff who understand what it means to serve and know firsthand the struggles many of our clients face every day.

If you suffer from flare-ups and need to appeal a VA decision, Berry Law Firm may be able to help. We have been successfully representing veterans before the VA, the BVA, and the CAVC for decades. Contact us today for a free evaluation.