How To Appeal A Back Condition

How To Appeal A Back Condition

Back injuries are some of the most commonly claimed, and commonly denied, disabilities that we see. These back claims may stem from a particular injury in service, or may be due to overuse while in service, or may have arisen due to another service-connected condition. Whatever the cause may be, if the VA decides to deny your claim for service connection, what actions can a veteran take to have the VA reconsider their claim?

            A veteran has one year from the date of the decision in which to appeal. The first, and arguably most important step, is to identify what ‘element’ of service connection the VA says is not met. The VA requires four separate elements to be met before the VA will grant ‘service-connection’ for a veteran’s claimed condition:

The claimant must be a veteran.

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 your case.

There must have been an in-service event or injury.

As long as a veteran has suffered some sort of injury or other incidents in service, this element will generally be met. 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 your military duties put repeated stress on your body.

There must be a current disability.

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.[1] However, a veteran must demonstrate ‘functional loss’ associated with that painful motion. Essentially, you must show the VA that your painful joints impact your ability to work, such as having difficulty standing for long periods of time.

There must be a link, or ‘nexus’ between your military service and your claimed disability.

This is oftentimes 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. 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 veteran’s 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 a veteran with an examination from a doctor who will take range-of-motion measurements if needed, and review the veteran’s medical records and provide an opinion as to whether the claimed condition is at least as likely as not related to the veteran’s military service.

A veteran can also seek out a private doctor or medical examiner to provide the required nexus finding. The veteran would be responsible for any costs associated with getting this private medical opinion (also known as an independent medical opinion, or IMO). If a veteran wishes 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.[2]

            If the VA has denied entitlement to service connection for your claimed conditions, the VA is required to provide you with the basis for their adverse decision. Carefully reading the language used in the decision should point you to which of the above elements were not met. Once the deficient elements have been identified, you may submit an appeal to the VA Regional Office or the Board of Veterans Appeals.

            If you wish to appeal to the VA Regional Office, you have two options. The first is to submit a Supplemental Claim using a VA Form 20-0995. This type of appeal requires you to submit ‘new and relevant’ evidence. This can take the form of a personal statement or can be 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 your claim.

            For instance, if the VA is denying your claim by saying that there was no incident in-service to cause your back problems, the best evidence to submit in support of your claim would be evidence demonstrating that you did, in fact, 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 from yourself stating that you 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 you are having persistent symptoms, such as painful motion, limited range of motion, spasms, flare ups, or other symptoms that interfere with your ability to work or otherwise do activities you used to do, then a detailed statement from you about how your symptoms affect your life will be helpful in demonstrating ‘functional loss’ which, as the courts have recognized, may be considered a disability for VA purposes. Statements from family and friends can also be helpful in demonstrating how your functional loss can affect your day-to-day life from another perspective.

            If the VA is arguing that there is no ‘nexus’, or relationship between your current disability and your 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 your military service caused or aggravated your 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 your records, examining you, and providing a final report.

            However, you may be able to find more generalized information that demonstrates a relationship between your claimed disability and an event in service. For example, if you were a paratrooper, you may be able to find studies showing that paratroopers have an increased risk of developing lumbar arthritis or whatever your particular diagnosis may be.

Second, you 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 you believe that the VA made a legal error, such as failing to provide an exam.

One of the most common types of error is that the VA has failed to provide a veteran with an examination if the veteran has demonstrated the existence of a current disability or symptoms of a disability, evidence of an in-service event, and an indication of an association between the two. If you have provided these things, and the VA has denied your claim without providing an examination, requesting a Higher-Level Review and pointing out this discrepancy may cause the VA to provide you with that examination and, hopefully, lead to the VA granting your claim.

            You may also appeal to the Board of Veterans Appeals. The Board are a group of Veterans Law Judges (VLJs) that will review the evidence of record and make a final determination on your 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 you have a window of 90 days to submit additional evidence once your claims are received by the Board; lastly the Hearing docket is the slowest but will allow you an in-person or virtual hearing with the VLJ assigned to your case.

            Once your 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 your claims. If the Board grants or remands your 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 your claim, it is possible to appeal the adverse decision to the Court of Appeals for Veterans Claims. Unlike other VA decisions, a veteran has only 120 days from the date of a Board decision to file a Notice of Appeal with the court. However, it is highly recommended that a veteran seek out legal representation before appealing the court as a veteran will be expected to comply with the court’s rules of practice and procedure, including filing a legal brief if necessary.

[1] Saunders v. Wilkie, 886 F.3d 1356, 1364 (Fed. Cir. 2018).

[2] Currently, the website address is:

Berry Law

The attorneys at Berry Law Firm are dedicated to helping injured Veterans. With extensive experience working with VA disability claims, Berry Law can help you with your disability appeals.

This material is for informational purposes only. It does not create an attorney-client relationship between the Firm and the reader, and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this blog are not a substitute for legal counsel.

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