Veterans frequently express confusion and frustration about both service-connection for and the evaluation of back conditions. Since back conditions can affect all aspects of a veteran’s life, this article will provide clarity to understand how to maximize VA benefits for a back condition.
Applying for and receiving the correct disability compensation from the VA for back conditions connected to your time in service can be difficult.
Whether you have problems proving your back problems are related to service or proving to the VA just how debilitating your back injury is, you may find yourself needing assistance when applying for VA disability compensation for injuries to your back.
At Berry Law, our team of dedicated VA appeals lawyers can help you appeal an unfavorable decision by the VA. Contact our team today at 888-838-7754 to schedule a free, confidential case evaluation.
One challenging aspect of back conditions is the potential length of time between the original injury and when you realize that the injury has become chronic. One of the most frequent stories we hear about back injuries is,
“I hurt my back in service, but I was young and pushed through it.”
Over the years, of course, that back injury can reoccur and worsen. Then, years after military service, a veteran may realize that the original in-service injury has resulted in a long-term disability.
When applying for service connection for a back condition, veterans can do a few things to help their claim. The first place to look is within the records from service. If a veteran injured his or her back while on active duty, sometimes there are reflections of that injury in the records. Keep in mind, that “smoking gun” document might not be a medical record. It could be a notation from a supervisor excusing the veteran from their duties, a profile to keep them from doing certain exercises, or something else related to the injury. It is important to thoroughly search the service records for something related to an in-service injury. Statements by the veteran or fellow servicemembers describing the injury can also help.
Sometimes a veteran has a back condition that is related to service, but wasn’t the result of any specific injury in service. That does not mean they have to give up on service connection. It just makes getting benefits a little harder. Many veterans attribute their back problems to service because they worked on their feet doing guard duty every day or because they participated in rucks, jumps, or other high-impact exercises.
For veterans who did not go to sick call for their back while in the military, they may want to begin by talking to family, friends, or fellow service members who remember their complaints of back pain in service. Buddy statements from those who remember complaints of a stiff or achy back can help trace the source of the injury back to active duty. Statements by the veteran him- or herself about back pain during service can help as well.
Sometimes a back problem can also be the result of another condition, like foot, knee, or hip problems that change the way a veteran walks and then causes injury to the back because of compensating movement or altered weightbearing. In these cases, if the underlying foot, knee, or hip disability can be connected to service, and evidence shows that disability at least as likely as not caused or aggravated the back condition, then the veteran can also receive VA disability benefits for the back condition. In these cases, evidence of the underlying disability as well as the back disability are necessary.
Once the veteran has gathered all of the evidence they intend to use to show an in-service injury or circumstance which caused back problems or a connection to another service-connected disability, the next step is usually to get a medical professional to connect it to the current disability. This is not a legal requirement, but in practice usually a claim will not be granted without it. This is often the hardest part. Many veterans go to their compensation and pension (C&P) exams thinking their claim will be granted because they have proof of an injury to their back in service. However, examiners will often point out that the in-service back problem resolved before the end of service. They will often use the exit exam from the military to show that the veteran exited service without any back problems, and point to any delay in the veteran seeking treatment for a back condition after service.
Veterans should go to their C&P examinations prepared to inform the examiner about the history of the injury and their pain or other symptoms since service. Examiners are required to listen to veteran’s lay statements, where applicable. A veteran should be ready to give clear statements about how their back was hurt in service, why they may not have sought treatment in service, and whether they have had the same recurring problems since service. the chronicity of their injury, including making it very clear that the current injury is a reoccurrence of the one in service. If that fails and the VA examiner still does not provide a connecting statement, known as a nexus, between the in-service injury and the current one, the veteran will probably want to look into getting a private medical opinion to hopefully provide that nexus.
At Berry Law, we are familiar with back disability claims and understand the types of evidence that VA and VA examiners look for in determining whether your back problems are related to service. If the VA has denied your claim for disability benefits for a back injury or chronic condition, contact us to discuss how we can help you appeal the decision.
Once the up-hill battle of service-connection for a back injury is over, veterans are often shocked by their rating decision. After years of fighting to show that their back problems are related to service, when they finally “win,” VA often awards only a 10 percent rating for the veteran’s pain.
In general, back injuries are rated low for the anguish and disability they cause. Our attorneys understand how the VA rates back conditions and secondary conditions, and we can help increase that rating and make it closer to actual compensation for impact your back disability has on your life.
There are two ways the VA compensates for back disabilities. The first relates to range of motion. The second is specific to intervertebral disc syndrome and rates based on the necessity of incapacitating episodes.
Back Disability Ratings Based on Range of Motion
Most people with back problems don’t spend a lot of time thinking about how far they can bend or twist; they’re too busy being in excruciating pain. That focus is where many veterans inadvertently get themselves in trouble. Pain of any severity, even life-altering, agonizing pain, is ratable at only 10 percent. There are limited exceptions, but, for the most part, appealing to the VA for a higher disability rating based on pain will not result in an increased evaluation.
The VA system for rating back disabilities can be extremely unfair in this way. Often a veteran’s service-connected back disability will begin causing more pain than it used to and so the veteran files a claim for an increased disability rating. But the arbitrary rules and regulations for rating back disabilities do not care about the level of pain a veteran experiences. The only thing that really affects most veterans’ ratings for back disability is range of motion.
To determine the range of motion for rating purposes, the VA will send the veteran to an examination. The examiner should use a measuring tool to determine the extent to which a veteran can bend or twist in various directions in degrees. The proper rating under the VA rating schedule is based on how many degrees of range of motion the veteran has in one or more planes of motion.
At the examination, the examiner should also ask the veteran about whether they experience flare-ups of their back condition, and whether their back gets worse after certain activities over a period of time. If the veteran experiences either of these circumstances, the examiner must ask the veteran whether their range of motion is more limited because of this worsening. The examiner is legally required to estimate any additional loss of range of motion in degrees during these periods of worsening, and the VA must consider this additional loss of range of motion when assigning a disability rating for back disabilities.
Our experience with appealing back disability ratings has shown us that both examiners and the VA commonly skip over this important step in assigning a disability rating, and sometimes VA examiners aren’t very clear when they ask these questions at the examination. As a result, it’s important that veterans understand the importance of telling examiners whether they are able to bend or twist less during flare-ups or after use over time (such as prolonged periods of walking, standing, sitting, or bending).
Needless to say, many veterans are displeased with very low ratings for back conditions that might keep them from working, driving, exercising, or living the way they want. One thing to do about it would be to look and see if the veteran might fall under the alternative diagnostic code relating to intervertebral disc disease and to see if that would result in a higher rating. If the veteran does not have incapacitating episodes (which basically means doctor-ordered bed rest) more than four weeks a year, pursuing an alternative diagnostic code will not help with an increased evaluation.
Luckily, many veterans are entitled to additional compensation for back disabilities by claiming secondary conditions caused by their back disabilities. Back conditions can cause a lot of other issues. One of the most common secondary conditions related to a back problem is radiculopathy, a type of nerve disability, including sciatica.
If a veteran with a service-connected back condition also feels numbness, tingling, or pain down one or both of his legs, buttocks, hips, shoulders, arms, or chest, they might be able to claim radiculopathy secondary to the back condition. Erectile dysfunction, incontinence, and even depression might also be related to a back problem.
As an alternative, some veterans might be able to obtain a higher rating under the diagnostic code relating to intervertebral disc syndrome and to see if that would result in a higher rating. If the veteran has incapacitating episodes (which basically means doctor-ordered bed rest) more than four weeks a year, they might be able to obtain an increased evaluation. However, ratings under the diagnostic code for intervertebral disc syndrome cannot be combined with ratings for loss of range of motion or with ratings for secondary radiculopathy. So even if a veteran can obtain only a 20 percent rating for range of motion and a 40 percent rating for intervertebral disc syndrome, it might be more favorable to stick with the range-of-motion rating if the veteran can also obtain significant compensation for radiculopathy or other secondary disabilities.
The VA has a legal duty to assign the diagnostic code or codes that result in the highest compensation to the veteran. Thus, in theory, the VA should look into all applicable diagnostic codes and determine which ones are best for you.
Unfortunately, our experience has taught us that the VA may apply the wrong diagnostic codes in some cases, resulting in lower monthly compensation for veterans. If you believe you might be entitled to a higher disability rating for back and related disabilities, contact us today to review your case.
Finally, if a back problem is keeping the veteran from working, they may wish to apply for IA total disability rating based on individual unemployability due to service-connected disabilities (TDIU).
Click here to learn more about how Berry Law can help give you the best chance at obtaining a TDIU.
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