so
welcome everyone to another edition of cck live uh my name is mike lastrito i'm an attorney at cck
um and joining me today i have alex gamache and nick nick briggs today we're going to
be explaining how veterans can get a va disability rating for their back pain
so generally speaking veterans experience or can experience a range of different back
injuries related to their military service back pain can occur due to the stress of training or
combat exposure motor vehicle accidents or other accidents falls carrying heavy gear
or any really other common duties that are required due to active military service chronic
back pain can limit a veteran's ability to work earn a living and even perform basic activities
of daily living such as bathing and dressing back pain often develops without any identifiable cause
actually so oftentimes back pain can result in or include things such as muscle or ligament
strains bulging or ruptured discs arthritis osteoporosis and other symptoms of back pain very
often include shooting pain aching pain burning or stabbing sensations cramps or other spasms
so it's really it runs the gamut there's a wide range of different symptoms that can result or
be the cause or really stem from a veteran's back pain so before we even talk about ratings for
back pain or compensation for back pain the first step in proving your claim is establishing service
connection for the back pain so alex can we talk a little bit about how a veteran would go about
establishing that their back pain or their back condition is related to their military service
yes so if veterans can establish that their back pain is a result of their military service
they may be eligible to receive va disability benefits in the form of monthly compensation
in va healthcare generally veterans only need to provide three things to receive an award
of service connection the first being a current diagnosis of a back condition
the second being an in-service event injury or illness and the third being a medical nexus which
is basically a link between the current diagnosed back condition in the in-service event injury or
illness however there is an exception to the first element of direct service connection involving the
current diagnosis in april of 2018 the court of appeals for the federal circuit held in saunders v
wilkie that va must award disability benefits for pain due to military service this basically means
that if a veteran has pain related to their time in service but does not have an actual
underlying medical diagnosis of a back condition they can still receive va disability benefits
as such veterans may be eligible to receive service connected compensation for back pain
stemming from their time in service even if they do not have a specific diagnosis that serves as
a cause for the pain it's important to note that this only applies if the pain causes functional
or occupational impairment or incapacity so alex we're talking here about direct service connection
right the concept of direct service connection meaning that the veteran's back pain or injury
stems directly from something that occurred during military service or that the injury or condition
incurred during that time in service there's another concept though that i know we have all
seen fairly routinely in our claims and our cases here known as secondary service
connection it's another avenue essentially for veterans to pursue to argue when they are filing
a claim and arguing an appeal to try to get their service connected condition their back condition
granted can you talk a little bit about secondary service connection what that is what that entails
as it relates to back pain so secondary service connection is basically a disability that resulted
from a condition that is already service connected so to establish secondary service connection
veterans should demonstrate two things when filing these claims the first is a diagnosis for that
secondary condition and again providing a nexus or that link between the service connected condition
and the secondary condition so a few common conditions that are secondary to
let's say service-connected back pain would be radiculopathy depression and sleep disorders we
have linked below a video to discuss more about secondary service connection for those issues
on the flip side this can also work in the reverse so if a veteran develops back pain due to a
service connected condition they may also be able to file for back pain as the secondary condition
filing a claim for secondary service connection can be extremely beneficial for vetted rins
additional conditions being rated increases the combined rating therefore increases monthly
compensation and this may also qualify you for additional va benefits based on your rating or
condition so one thing i think is important to to just note is that if a veteran is looking to
file a claim for their back condition or back pain they don't necessarily have to specify
in the claim that they're seeking service connection based on a direct theory as we
first talked about or a secondary theory alex as you just talked about those are arguments
and theories of entitlement that they can raise um certainly with their claim but also on appeal
they don't necessarily have to be that specific when they're filing a claim though it can help to
lead to a grant once the veteran goes through kind of the difficult process
of getting the condition granted then nick return to va having to rate that condition
um and oftentimes they will rate that based on the severity of the condition so can you take us
through walk us through how va goes about rating back conditions and back pain yeah absolutely mike
so to start va rates back conditions under 38 cfr 4.71 a which is the schedule of readings for the
musculoskeletal system um the criteria listed under the regulation are based largely on the
veteran's range of motion measurements with additional consideration of functional loss
when we talk about range of motion what we mean is the range of flexion i.e bending and extension
straightening va requires that this range of motion be measured using a goniometer
which is specified at 38 cfr 4.46 and once the range of motion measurements are taken
va may assign a reading from any anywhere from 0 to 100 depending on which segments of the
spine are affected and what the measured range of motion is in the particular segment of the spine
one thing to note at the outset is that there are three main segments this regulation contemplates
the lumbar spine the thoracic spine and the cervical spine um in order to receive a 100
rating you need unfavorable ankylosis of the entire spine top to bottom but the rest of these
individual readings assigned ranging from 10 to 50 involve different impairments of different
segments of the cervical spine or the the different segments of the spine so for example um
a 30 rating can be assigned for the cervical spine um if the range of motion is 15 degrees or less
so the cervical spine as you see from the regulation is often rated on its own whereas
the thoracic spine and the lumbar spine are often rated together under a single assigned reading
for example a 20 rating could be assigned for forward reflection of the thoracolumbar spine
between 30 degrees and 60 degrees so again the process works by va taking the range of motion
for the entire spine uh figuring out which of the segments are service connected
and then assigning a rating based off of the limitation of flexion or forward flexion whatever
it is whatever the case may be importantly though range of motion isn't the end-all be-all
for assigned readings under the general ratings formula for musculoskeletal disabilities
for the back in particular they need to consider whether the veteran has
intervertebral disc syndrome or ivds um which provides an alternative schedule through which
a veteran can be rated based off of episodes of incapacitation and the prescription of bed rest
unfortunately doctors don't really think of back disabilities in terms of incapacitation and bed
rest anymore but the regulations do allow for consideration of additional factors like
flare-ups and functional loss which we'll talk a bit more a bit more about later
um finally one thing to note is that if a veteran experiences back pain that causes the sort of
functional impairment that alex talked about earlier section 4.59 guarantees that you'll
get at least a 10 rating for that pain because it's assumed that the pain is causing at least
that 10 level of impairment so there's really no non-compensable rating for a back disability
but whether or not you get a 10 versus a higher reading is going to depend again both on
range of motion measurements and the functional loss that we'll talk a bit more about later so
there's clearly a lot that goes into reading the back obviously as as you can see and as nick you
just articulated and a lot of things to consider one additional thing to consider is the presence
of flare-ups in the condition so in addition to range of motion measurements and functional loss
va examiners must address should address the presence of any flare-ups oftentimes veterans
will have a very significant back condition but it won't be present at all times at some you know
sometimes it'll be worse than others other times it will recede and so the va examiners are really
tasked by case law by law to explore how range of motion measurements are impacted by the presence
of flare-ups so if a veteran experiences flare-ups of back pain they may be eligible for higher a
higher evaluation because of the impact that it might have on range of motion measurements
if an examiner does not consider the impact of flare-ups then that examination can actually
be challenged and you know veterans and advocates should look to challenge those exams as inadequate
for va rating purposes because they did fail to consider the presence of flare-ups when the
examiner took the range of motion measurements so like we said a lot to consider when
considering arguing for a proper rating or adjudicating for a proper rating one thing
nick i'm going to turn to you to think a little bit about is how back pain or veteran's service
connected back condition might impact their ability to work and what impact that might have
on the filing or raising entitlement to tdiu so can you walk us through that a little bit
absolutely so again as we've kind of talked about the back disabilities are rated in two
interrelated ways the range of motion measurements themselves
and then the actual functional impact and functional loss that the back disability causes
and oftentimes in representing the veterans that we represent we
sort of see that the ratings are often out of step with just how severe the veteran's condition is
and part of that's just a function of the veteran may be able to bend down so far but that same
veteran might also be unable to sit for more than five or ten minutes at a time due to their
back pain while they're sitting down and if they can't sit they can't stand they can't walk around
it really doesn't matter how far they can bend forward if they can't perform those even basic
activities so even if the schedule itself doesn't get you higher than a twenty percent or forty
percent rating that's where other alternatives can come into play such as unemployability benefits
because in that same scenario the veteran might have the range of motion measurements that only
gets them that 20 rating but they might be unable to stand or walk for more than a few minutes at
a time or they can't sit at a desk for more than an hour before they need to get up get around do
those sorts of things so that's where tdiu sort of steps in so if the veteran's unable to work due to
their back disability they can't do sedentary work they can't sit at their desk they can't
meet the requirements of their job they can still get a higher 100 rating for that unemployability
that the back causes even if the range of motion measurements themselves limit the scheduler rating
available to the veteran that's why it's always important to look for both additional benefits in
the form of tdiu and potentially smc if your back disability is severe enough to prevent you from
being able to say bathe or dress yourself without the assistance of a spouse or family member
so there's always more benefits available even if you think the schedule's underrating your
condition just based off of how the range of motion measurements work and what's great about
tdiu and smc is that if a veteran has a pending increased rating for back condition
claim they don't they're not required by law to file a separate claim for either smc or tdiu
they can simply in a argument submitted or an evidence submitted to the regional office raise
the issue they can say you know my back condition is so severe that in addition to an increased
rating based on the scheduler requirements as nick you were just talking about i'm also entitled to
unemployability benefits i'm also entitled to smc benefits stemming from the severity of my pending
increased rating back claim so you know it's i think it's just really important to note that
these additional benefits are not ones that necessarily have to be filed separately
they can be raised and should be raised whenever applicable and va is
required to consider them when the evidence is there to at least in part support those additional
benefits as part of that underlying claim so thank you alex thank you nick i actually think that's
all that we have for today so we hope this video provided you with some helpful information to win
your claim for back pain if you deny benefits or believe you deserve a higher rating consider
reaching out to the accredited advocates at cck where we can assist with your appeal
more veterans benefits and va rating information can be found on our blog so please check it out
or through other videos that we've published please check those out otherwise thanks for tuning
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