Back injuries are some of the most commonly claimed, and commonly denied, disabilities that we see.
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 your back injury if it was caused by something during your time in the military.
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.
But if your claim is denied, how do you go about appealing it? In this article, we will go over how you can appeal a VA decision for your back injury.
Once you get an initial denial from the VA, you may be confused about where you should start so you can appeal the decision. The first thing to do is to figure out why the VA denied your claim or your increased request in the first place. They will usually disclose why they did not accept your claim. You can then gather the necessary evidence to show why you deserve the compensation you are requesting.
If you do not know where to start figuring out the initial problem, a professional attorney familiar with VA decisions will be able to help you. From there, they will gather the necessary information to make a compelling appeal. They also have resources and medical professionals you can contact if you 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 your case.
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.
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.
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 is 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.
Your back injury claim could be denied by the VA for a variety of potential reasons. For example, the VA may deny you a service connection between your back injury and your time in the military (or specific actions that you did in the military).
Alternatively, the VA may find that your back injury is not serious enough (or its symptoms are not severe enough) for you to warrant disability benefits. Regardless of the exact reason, keep in mind that you can appeal your back claim no matter what reason the VA gives for the denial.
A back injury does not have to be caused or aggravated by a specific injury in service. To recover disability benefits for your back injury, you must make a service connection between the back injury and its symptoms and your time in the military.
For example, you don’t need to have broken your 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 injuries, foot problems, knee injuries, hip problems, or other issues that may change how you stand or walk around. Therefore, if you suffered a hip injury and already receive disability benefits because of it, you may be able to connect the hip injury to your 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 your time in the military.
For example, if you didn’t go on sick call during your service, you can talk to fellow servicemembers, friends, and family members. They may remember any complaints you made about back pain. They can then write their statements and send them to you, which may serve as an important form of supplemental evidence during your disability benefits appeal.
The VA rates back injuries based on your range of motion instead of your overall pain. Even if your pain is debilitating or life-altering, it will only contribute to a rating of up to 10%.
Instead, if your back injury limits your mobility to the extent that you can’t walk normally anymore, you may receive a higher disability benefits rating. When you attend an examination for your back injury, the licensed medical professional at the meeting will measure you to see your full range of motion. That said, be sure to describe any pain you encounter when you try to move, which may be important for acquiring as high a rating as possible.
Knowledgeable Veterans law attorneys like Berry Law can provide you with the legal support and assistance you need to maximize your appeal’s strength. We can help you gather evidence, ensure that you understand the process from start to finish, and provide you with sound legal counsel regarding decisions for your claim. Contact us today to learn more.
Back injuries caused or aggravated by your time in the military can threaten the quality of your livelihood. Often, back injuries go unaddressed and worsen over time, causing many complications in a Veteran’s 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, you can always appeal the decision. Working with a professional team of attorneys is your best bet to gain the benefits you deserve. At Berry Law, we will ensure that you have all of the necessary documentation and evidence needed to make a convincing appeal to the VA.
For more information on VA appeals and decisions, visit our website.
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