Back injuries are some of the most commonly claimed, and commonly denied, disabilities that we see. Our experienced VA disability benefits lawyers handle many cases where Veterans need help figuring out how to appeal a back condition disability claim. Very simply, first, we have to determine why the VA denied the claim. Then we have to present evidence to show why Veterans qualify for compensation for their back injury.
Back injury claims may stem from a particular injury in service, may be due to overuse while in service, or may have arisen due to another service-connected condition. When they leave the military, some Veterans may not think their injury is anything major, especially if they are younger. Many younger Veterans push through the pain and do not address it, thinking it will get better over time.
However, this is rarely the case. Back injuries can be a life-long issue if they are not addressed properly. Because of this, it is essential to make a claim for a back injury if it was caused by something during time in the military. In this article, we will go over how Veterans can appeal a VA decision for a back injury.
A back injury claim could be denied by the VA for a variety of potential reasons. For example, the VA may deny a service connection between a back injury and time in the military (or specific actions in the military).
Alternatively, the VA may find that a back injury is not serious enough (or its symptoms are not severe enough) to warrant disability benefits. Regardless of the exact reason, keep in mind that Veterans can appeal a back claim no matter what reason the VA gives for the denial.
If the initial claim or request for increased benefits was denied due to lack of evidence, Veterans can appeal by providing additional medical records, doctor’s opinions, and other relevant documentation supporting the severity of a back injury.
If a back injury has worsened since the initial claim or last evaluation, Veterans can appeal for an increase in disability benefits. Providing recent medical records and evaluations showing the deterioration of a condition can strengthen the case.
Back injuries can also have secondary effects such as chronic pain, limited mobility, or mental health issues like depression or anxiety. If these secondary effects were not adequately considered in the initial decision, Veterans can appeal to have them considered. This may help secure approval to receive or increase benefits.
Once Veterans get an initial denial from the VA, they may be confused about where they should start so they can appeal the decision. The first thing to do is to figure out why the VA denied a claim or an increased request in the first place. They will usually disclose why they did not accept a claim. Veterans can then gather the necessary evidence to show why they deserve the compensation they are requesting.
If Veterans do not know where to start figuring out the initial problem, a professional attorney familiar with VA decisions will be able to help them. They will work with Veterans to gather the necessary information to make a compelling appeal. They also have resources and medical professionals they can contact if they need a professional medical opinion.
Typically, the VA requires four separate elements to be met before the VA will grant ‘service-connection’ for a Veteran’s claimed condition:
Generally speaking, if a Veteran served at least some time on active duty, and has a DD-214 showing honorable service, this element will have been met. If a Veteran has a DD-214 showing a different ‘character of discharge’; or if a Veteran only served in the Reserves or National Guard and was not called to active duty, service connection may still be possible, but it may depend on the specific facts of a case.
If Veterans suffered some sort of injury or other incidents in service, this element will generally be met. For example, in the case of Veteran paratroopers, in-service documentation of a hard landing causing injury will be good evidence to prove this element.
However, not all Veterans will have documentation of an in-service event. Oftentimes, a seemingly minor injury was not reported, or no specific injury occurred. In these cases, it may be helpful to get statements or other evidence to help demonstrate to the VA that either an unreported injury did occur, or that military duties put repeated stress on the body.
To meet this element, there must be a currently diagnosed problem, such as degenerative arthritis in a joint, or a DSM-V-recognized mental health condition.
For joint problems, the Court of Appeals for the Federal Circuit has held that painful motion in a joint can qualify as a current disability for VA purposes. However, Veterans must demonstrate ‘functional loss’ associated with that painful motion. Essentially, Veterans must show the VA that painful joints impact the ability to work, such as having difficulty standing for long periods.
Demonstrating a nexus, or connection, between service and the disability is often the most difficult element to provide. There are certain cases where the VA will legally presume a link to military service, such as Veterans who were exposed to Agent Orange, or Veterans who were exposed to the contaminated water at Camp Lejeune, NC. This is known as a presumptive service condition.
However, in most cases, there must be competent medical evidence showing that it is at least as likely as not that a Veteran’s military service or a currently service-connected condition caused or aggravated the claimed disability.
Often, a Veteran does not have the required medical expertise to show this nexus. However, the VA has a legal requirement to assist Veterans in developing their disability claims. Once certain conditions are met, this includes providing Veterans with an examination from a doctor who will take range-of-motion measurements if needed, review medical records, and provide an opinion as to whether the claimed condition is at least as likely as not related to military service.
Veterans can also seek out a private doctor or medical examiner to provide the required nexus finding. Veterans would be responsible for any costs associated with getting this private medical opinion (also known as an independent medical opinion, or IMO). If Veterans wish to get an IMO, it is recommended that the private doctors use the VA’s Disability Benefits Questionnaires (DBQs), which are currently available online at the VA’s website.
If the VA has denied entitlement to service connection for claimed conditions, the VA is required to provide Veterans with the basis for their adverse decision. Carefully reading the language used in the decision should point Veterans to which of the above elements were not met. Once the deficient elements have been identified, Veterans may submit an appeal to the VA Regional Office or the Board of Veterans Appeals.
If Veterans wish to appeal to the VA Regional Office, they have two options. The first is to submit a Supplemental Claim using a VA Form 20-0995. This type of appeal requires Veterans to submit “new and relevant” evidence. This can be a personal statement or documentary evidence like private medical records. When considering what kind of new and relevant evidence to submit, it is important to think about the VA’s stated reasons for denying a claim. Below are some examples and how Veterans can counter them.
If the VA is denying a claim by saying that there was no incident in-service to cause back problems, the best evidence to submit in support of a claim would be evidence demonstrating that Veterans did suffer an in-service injury, even if it went unreported. For example, a buddy statement from a fellow Veteran that attests to an unreported injury, or even a written statement stating that they had such an injury. Contemporaneous evidence, like a letter home that may mention an in-service injury or incident can also be helpful.
If the VA is asserting that there is no currently diagnosed disability, the best evidence to provide to the VA would likely be a record from a private physician showing a diagnosis. However, because not every Veteran has access to a private medical provider, this is not always feasible.
If Veterans are having persistent symptoms, such as painful motion, limited range of motion, spasms, flare-ups, or other symptoms that interfere with the ability to work or otherwise do activities they used to do, then a detailed statement from them about how symptoms affect their life will help demonstrate functional loss, which, as the courts have recognized, may be considered a disability for VA purposes. Statements from family and friends can also help demonstrate how functional loss can affect day-to-day life from another perspective.
If the VA is arguing that there is no nexus, or relationship, between a current disability and military service, the most useful evidence to provide in this situation would be an opinion from a private medical provider stating that it is “at least as likely as not” that military service caused or aggravated a claimed disability.
Ideally, this opinion would also go into detail about what evidence they reviewed and demonstrate how the provider came to their positive conclusion. Again, this is not always possible, as finding a private medical provider can be a very expensive proposition as the provider will often charge for their time in reviewing records, examining Veterans, and providing a final report.
However, Veterans may be able to find more generalized information that demonstrates a relationship between a claimed disability and an event in service. For example, if Veterans were paratroopers, they may be able to find studies showing that paratroopers have an increased risk of developing lumbar arthritis or whatever the diagnosis may be.
Veterans may request a Higher-Level Review by submitting VA Form 20-0996. This type of appeal relies only on the record as of the date of the appealed decision. So, no new evidence may be submitted with this appeal. This type of appeal is generally best when Veterans believe that the VA made a legal error, such as failing to provide an exam.
Veterans may also appeal to the Board of Veterans Appeals. The Board is a group of Veterans Law Judges (VLJs) that will review the evidence of record and make a final determination on claims.
An appeal to the Board has three docket options: Direct Review – in which the Board reviews the record as of the date of the appealed decision; Evidence Submission – in which Veterans have a window of 90 days to submit additional evidence once claims are received by the Board; and lastly, the Hearing docket, which is the slowest but will allow an in-person or virtual hearing with the VLJ assigned to a case.
Once a case has been transferred to the Board, and any requested hearing has been held, the VLJ will review the evidence of record and generally either grant, remand, or deny claims. If the Board grants or remands a claim, the issue(s) will be returned to the VA Regional Office for implementation (in the case of a grant), or for further development such as providing a new examination (in the case of a remand). Once the required actions have been completed, the VA will issue a new decision.
Should the Board deny a claim, it is possible to appeal the adverse decision to the Court of Appeals for Veterans Claims. Unlike with other VA decisions, Veterans only have 120 days from the date of a Board decision to file a Notice of Appeal with the court.
However, it is highly recommended that Veterans seek out legal representation before appealing to the court. Veterans will be expected to comply with the court’s rules of practice and procedure, including filing a legal brief if necessary. An experienced VA disability benefits lawyer will be familiar with these procedures and can ensure a smoother appeals process.
A back injury does not have to be caused or aggravated by a specific injury in service. For example, Veterans don’t need to have broken their back in the military to receive disability benefits. That’s because lots of Veterans attribute back injuries to the duties they had to fulfill in the military, such as being on their feet, carrying heavy equipment, guarding, and more.
Back problems can be caused or aggravated by foot problems, knee injuries, hip problems, or other issues that may change how Veterans stand or walk around. Therefore, if Veterans suffered a hip injury and already receives disability benefits because of it, they may be able to connect the hip injury to a back injury and recover benefits that way.
That’s why it’s important to have as much evidence as possible regarding back pain and discomfort during time in the military.
Talk to fellow servicemembers, friends, and family members. They may remember any complaints Veterans made about back pain. They can then write their statements and send them to them, which may serve as an important form of supplemental evidence during a disability benefits appeal.
The VA rates back injuries based on range of motion instead of overall pain. Even if pain is debilitating or life-altering, it will only contribute to a rating of up to 10%.
Instead, if a back injury limits mobility to the extent that Veterans can’t walk normally anymore, they may receive a higher disability benefits rating. When Veterans attend an examination for a back injury, the licensed medical professional at the meeting will measure them to see the full range of motion. That said, be sure to describe any pain they encounter when they try to move, which may be important for acquiring as high a rating as possible.
Knowledgeable Veterans law attorneys at Berry Law can provide Veterans with the legal support and assistance Veterans need to maximize an appeal’s strength. We can help Veterans gather evidence, ensure that they understand the process from start to finish, and provide them with sound legal counsel regarding decisions for a claim.
Back injuries caused or aggravated by time in the military can threaten the quality of life and impact a Veteran’s livelihood. Often, back injuries go unaddressed and worsen over time, causing many complications in health and productivity. Because of this, it is crucial to make a claim through the VA, even if it is denied. When it is denied, Veterans can always appeal the decision.
Working with a professional team of attorneys can gain the benefits Veterans deserve. At Berry Law, we will ensure that Veterans have all the necessary documentation and evidence needed to make a convincing appeal to the VA. Our Berry Law team has attorneys, investigators, and other legal professionals who are Veterans themselves. We understand the VA disability benefits claims process, and we know where Veterans are coming from.
We represent Veterans in all 50 states and our legal team is available 24/7. Call us at 888-883-2483 or fill out our online contact form.
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