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Building and presenting a VA disability claim to the VA can be an arduous and difficult process. The legal team at Tuley Law Office have the knowledge and skills to guide you through the VAs dense language and often vague expectations.
If you or someone you know is experiencing back pain as a result of their time in the military, contact us today to schedule a consultation.
Va Disability Ratings For Back Pain
VA rates back conditions under 38 CFR § 4.71a, Schedule of Ratings, Musculoskeletal System. The criteria are based largely on a veterans range of motion and functional loss. Specifically, VA will determine the severity of a veterans back condition based on both the range of motion measurements provided by an examiner and the point at which the veteran starts to experience pain. For example, a veteran might be able to bend forward 80 degrees but starts to experience pain at 50 degrees. Here, the veteran should receive a disability rating that is consistent with both of these factors related to their back pain.
In addition to range of motion measurements and functional loss, VA examiners should also address the presence of flare-ups. If veterans experience flare-ups of back pain, they may be eligible for a higher evaluation due to the fact that during a flare-up, a veterans back condition typically becomes much more disabling. If an examiner does not consider the impact of flare-ups, then the examination is inadequate for VA rating purposes and a new examination may be warranted.
Proving Va Service Connection For Your Back Condition
According to the VA, to prove a service-related back injury you must:
- Provide VA, military or private medical records related to your back pain injury claim that support when your condition began and how it has worsened over time.
- Provide military separation documents, including your DD-214
- Provide supporting statements from family members, friends, clergy members, law enforcement personnel or those you served with that can tell the VA more about your claimed condition and how and when it happened or how it got worse.
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Va Ratings For Functional Impairment Of The Thoracolumbar Spine
The rating chart for thoracolumbar spinal pain is used for primary and secondary conditions to lower back pain. The measurements used for determining compensation are as follows:
- 0 percent rating: Flexion is greater than or equal to 90 degrees, OR a combined ROM greater than or equal to 240 degrees
- 10 percent rating: Flexion between 60 and 90 degrees, OR a combined ROM between 125 and 240 degrees
- 20 percent rating: Flexion between 30 and 65 degrees, OR a combined ROM less than or equal to 120 degrees, the minimum scoliosis percent for a scoliosis VA rating.
- 30 percent rating: This rating cannot be applied to the thoracolumbar spine
- 40 percent rating: Flexion less than or equal to 30 degrees, or the entire thoracolumbar spine is stuck in a favorable position
- 50 percent rating: The entire thoracolumbar spine is stuck in an unfavorable position, also called unfavorable ankylosis of the entire thoracolumbar spine.
- 100 percent rating: The entire spine will not move and is stuck in an unfavorable position
Secondary Service Connected Connection
When you apply for VA disability benefits, do not forget to include your secondary service-connected disabilities. This is one area of VA law we see many veterans not understand and it hurts their VA benefit claims. Secondary service-connected disabilities are conditions that are caused by your direct service-connected disability. One of the best ways to increase your rating is to service-connect as many impairments as possible. Secondary service-connected disabilities are often the majority of a veterans VA rating.
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Examples Of Proving Secondary Service Connection
Scenario 1: As a result of a combat injury, you are diagnosed with post-traumatic stress , depression or any other mental health condition. That mental health condition leads to stomach problems. Are the stomach problems able to be service connected using secondary service connection?
Answer: Probably. You will need medical opinions from a gastroenterologist and probably a psychiatrist or psychologist to show the VA that the stomach disorder is the result of, or caused by, the mental health condition.
Scenario 2: A veteran has a 30% rating for a service-connected knee injury. As a result of that injury, the veteran now complains of chronic back-pain and walks with a limp. Is the low-back pain and limp a secondary connection?
Answer: It depends. If you have an opinion from a private medical expert, you may be able to establish that the second injury, the low back pain, is connected to the original knee problem. This is a tougher claim, because there are many causes for low back-pain.
Scenario 3: You had a Traumatic Brain Injury while in-service, and as a result, suffered nerve damage in your brain. You have now been diagnosed with sleep apnea and there is no evidence that sleep apnea was diagnosed in service. Is your sleep apnea secondary to your TBI?
Here Is What You Need To Prove Secondary Service Connection
Medical evidence. Short and simple.
You will not succeed in a secondary service-connection claim without sufficient medical evidence.
Why not? Because lay evidence is often insufficient to establish medical causation.
That makes sense, right? You dont go to a yoga instructor to tell you why your cars check engine light is coming on. You go to someone that is trained in diagnosing that problem.
The legal burden of proof you need to meet is , however, the same as any other service connection claim: the doctor only needs to conclude: It is at least as likely as not that Service-connected Condition A caused Condition B.
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Service Connection Due To Aggravation
The best evidence to show an aggravation is usually medical records from before and after the veterans active duty service.
If the records do not exist or are unavailable, then testimony from the veteran and lay witnesses can be used. Although lay testimony cannot establish a diagnosis, it is important to note that it can be used to prove symptoms and how they changed after service.
An example of this would be if a veteran had knee pain before service but did not seek treatment, and then after service, the pain increased and required treatment. In this instance, they could use lay testimony to corroborate the veterans testimony that their knee pain increased after service and became unbearable, leading to a doctors appointment.
How Do I Prove Service
The VA will provide disability benefits for any condition caused by another service-connected condition, even if it develops years after discharge. To support a claim for a secondary condition, you need to provide evidence that the new condition is clearly the result of the service-connection condition. A NEXUS letter from you physician will greatly strengthen claims for secondary conditions.
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Case In Point: The Back Injury Story
In many cases this connection, or “nexus” may be tenuous at best. Let’s consider, for example, a back injury. You may have hurt your back in some fashion while serving your country. That was in 1970 and you went on sick call. Your sore back was diagnosed as a “pulled muscle” or something similar. You were given some APC tablets and sent on your way to light duty for 3 days. The back became more painful so you were back on sick call a week later. This time an x-ray was ordered and you were given some stronger pain pills. Your light duty was increased to restricted duty for a month with orders of no lifting, no PT and so on.
The military culture demands that we don’t complain of our “minor” aches and pains. The team depends on each member being ready to complete the mission and the mission is all that counts. From day one we’re trained that complaints of pain will bring about scorn from superiors. Fellow soldiers will know that they have to carry your load as well as their own. “Pain”, we learn, “is weakness leaving your body.” Pain is good. If J.B. Books didn’t complain about his back pain, why should you?
You file for service-connected disability compensation. You have a C & P exam. And about a year later you have a denial letter. The VA tells you that although you had complaints during your service, your condition today is new and unrelated to those old problems. Now what?
Cervical Radiculopathy Secondary To Back Pain
Cervical radiculopathy is when a veteran has a pinched nerve in their neck. When there is pressure on a nerve in the neck, a veteran can experience radiculopathy in their shoulders, arms, hands, and fingers. The type of pain can vary from numbness, tingling, or burning, and can also range in severity from mild to severe.
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Special Service Connection Rules For Post
To establish service connection for Post-Traumatic Stress Disorder , veterans will need to:
- provide a statement about the “stressor” that occurred during service
- have a diagnosis of PTSD, and
- get an opinion from a VA psychologist or psychiatrist that the stressor was sufficient to cause the PTSD.
This rule is not just for combat veterans but for all veterans who were in fear of hostile or terrorist activity during service. As long as the stressor was consistent with the overall circumstances of the veteran’s service, and there is not any “clear and convincing” evidence to show the stressor didn’t occur, a veteran will be able to establish a service connection.
How To Get A Range Of Motion Test For Back Pain
To assess VA disability for back problems, the VA most often uses the General Rating Formula for Diseases and Injuries of the Spine to evaluate them. Their rating is determined most commonly by assessing your range of motion. Their formula looks at the flexion at the waist and determines if it is limited by injury.
According to the VA, flexibility must be fairly limited to even get a 20 percent disability rating. This will be determined on whether there is forward flexion greater than 30 degrees but less than 60 degrees. Meaning that if you are significantly limited in your ability to bend at the waist, you might qualify for the 20 percent rating. Usually, previous diagnoses from doctors or therapists will be used to determine this.
The range of motion method of determining your VA benefits rating generally will end up as one of the following:
Of course, a limited range of motion is not the only way to get VA disability for back problems. It is also possible to obtain at least a 20 percent rating if you are regularly experiencing muscle spasms severe enough to develop an abnormal walking gait. They will also evaluate you for the following abnormal spinal contours:
- abnormal kyphosis
- or reversed lordosis .
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Veterans Back Pain Claims
Back pain is a common condition among veterans who have completed active duty service. Chronic back pain can inhibit your ability to maintain employment or meet your own day-to-day needs. Fortunately, you may qualify for disability benefits from the Department of Veterans Affairs if you suffer from service-related back pain.
From acute injuries to repetitive stress syndrome, some forms of back pain will never heal entirely. This is especially true in chronic condition cases that involve nerve damage in the spine. Let an experienced VA benefits attorney advise you on pursuing veterans back pain claims.
Ways To Prove A Va Service Connection
When you submit a VA claim for disability benefits, the VA requires you to explain your disability, how it affects you, and how it occurred. The disability must be connected to your active duty service in some way, whether it was caused by your service or aggravated during your service time. Proving your service connection is necessary for the VA to decide whether youre eligible for VA benefits as someone with a medical condition related to their service.
There are a few types of service connections that may qualify you for VA benefits, as noted above. You can use the appropriate service connection based on your circumstances to prove that your disability is related to your service time.
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Can I Get A Rating Higher Than 20 Percent If My Back Disability Is More Severe
Yes. You can qualify for a VA rating between 40 percent and 100 percent depending on how severe your disability is. I discuss thoracolumbar VA ratings of 40 percent or higher in this article.
Travis Studdard is an attorney who focuses on representing veterans in VA disability compensation claims. He regularly writes about issues that are important to veterans and their families.
You can subscribe to his Veterans Disability channel on YouTube.
Arthritis Of The Back Secondary To Back Pain
Degenerative arthritis of the back occurs when cartilage between joints erodes over time resulting in joint stiffness, limited mobility, and pain. This type of arthritis usually takes place in weight-bearing joints . Arthritis of the spine is a breakdown of the cartilage of the joints and discs in the neck and back.
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Why Veterans Are More Likely To Suffer From Arthritis
Uniforms and body armor of soldiers can weigh between 50 and 60 poundsand for those who served at the beginning of the Afghanistan War, the weight was even greater. Service members on multiple deployments may lift or carry heavy equipment for many years and may have driven or been passengers in military motor vehicles, which can be rough and damaging. Its not uncommon for a soldier to ride in the same position for miles, leaning out a window looking for roadside bombs.
Additionally, soldiers perform extremely strenuous work and train very hard to pass necessary fitness exams. The rigor of both can cause injuries such as sprained or torn ligaments that are more likely to become arthritic years later.
In the 2011 study, which looked at records from 1998 to 2008, there were important findings about arthritis and veterans:
- There were over 108,000 cases of OA diagnosed by military doctors.
- Veterans and soldiers aged 20 to 24 were over 25 percent more likely to have OA.
- After the completion of their military service, veterans over 40 were two times more likely to develop arthritis.
- Twenty-nine percent of those surveyed were discharged from service due to arthritis.
- Military personnel injured by blasts and roadside bombs were often diagnosed with arthritis within two years of injury.
Issue On Appeal To The Cavc:
The BVA denied service connection for arthritis, holding arthritis was not diagnosed and did not manifest within one year of separation from service. The veteran, who served until October 2006, reported continuous symptoms of knee pain from 2006 to the present. The BVA mentioned that the veteran testified about continuous symptoms of knee pain from August 2006 to present.
Did the BVA err when it failed to consider continuity of symptomatology as a means of proving service connection for arthritis?
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Back Pain As A Secondary Condition
Veterans may suffer back pain as a secondary condition, according to veteran disability law firm Chisolm, Chisolm and Kirpatrick.
For example, a veteran has a service-connected hip condition that causes them to favor one side when walking, resulting in an altered gait. This uneven shift in weight then contributes to back pain. In this case, the veterans back pain is caused by their service-connected hip condition, and therefore warrants secondary service connection.
You must file a new VA claim for a secondary condition. You cant use the same appeal process youd use to file for an increased rating.
Understanding The Service Connected Requirement For Va Disability Claims
VA disability law can be daunting for many eligible veterans who want to submit a VA disability claim or wish to appeal a negative disability determination. One of the main concepts that is difficult for service members to understand is which injuries or illnesses VA disability will cover. The answer is only those disabilities that the applicant can prove are service connected.1
What Is Considered a Service Connected Injury?
During my experience representing disabled veterans, it has become apparent to me that many VA disability claims are denied because the VA has determined the injury or illness is not service connected. Service connected means an injury or illness that was incurred or aggravated during active military service.2 In VA decision letters language similar to the following is often used:
To establish direct service connection for a claimed injury or illness, objective evidence must show a diagnosis of a current disability that is related to a disease or injury incurred in or aggravated during active service or that manifested itself to a compensable degree within one year from the date of discharge.3 The VA examiner will determine that a claimed injury or illness is service connected if the examiner opines that the disability is at least as likely as not caused by or a result of active military service.
Hypothetical Example
How Can I support My Claim for a Service Connected Disability?
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Events Missing From Military Records
Lots of veterans have a service-connected disability denied because of events missing in their military records. For example, a veteran who is applying for PTSD disability benefits might be denied because there is no record of an IED attack. This veteran can use buddy statements, later explained in this article, to prove an event happened. The VA will consider buddy statements as evidence that an unrecorded event happened. Many Vietnam veterans use buddy statements because of missing records.
