A new court decision makes it easier for veterans to receive higher ratings for neck, back and joint injuries
By Douglas G. Jackson
Just last month, the court of Appeals for Veterans Claims issued another major decision that is hugely beneficial to disabled veterans. This new decision allows veterans to more easily obtain higher ratings for injuries to the back, neck, and joints.
Most veterans who have applied for disability benefits from the Department of Veterans Affairs (VA) have been sent to something called a Compensation and Pension examination, or they are often called by the VA, "C&P exams." This is an examination orchestrated by the VA to assess the origin and extent of the veteran's disability. Veterans who have been to these examinations know that each C&P examination can be very different. Some examiners are very thorough and listen to the medical problems of the veteran, but other C&P examinations can be simply inadequate.
In a recent case called Sharp v. Shulkin, the court issued decision that addressed one of the inadequate examinations. In this case, the court decided that a C&P examination is inadequate if the C&P examiner is does not consider flare-ups and pain, even if the veteran is not experiencing it during the examination. This decision further opens the door to even higher disability ratings when the veteran loses some functional ability in these joints due to the flare-ups or pain.
The court's decision also helped veterans because it imposes higher standards on the C&P examiners. After this decision, a C&P examination will usually be considered inadequate unless it gives an opinion about how the flare-ups and pain affects the veteran’s ability to use the injured body part. In fact, the court clarifies that the only time that a C&P examiner may say that he or she cannot give an opinion of the functional limitations due to pain or flare-up are when the following three factors are met: (1) "it is clear that the examiner has considered all procurable and assembled data," (2) the examiner thoroughly explained "the basis for his or her conclusion that a non-speculative opinion cannot be offered," and (3) the "medical community at large" is not able to give an opinion without resorting to mere speculation.
Another reason that this decision helps veterans is because it makes it clear that the VA should attempt to schedule a C&P examination during a flare-up, whenever that is possible. While the court does acknowledge that this may be impossible when a flare-up only lasts a day or two, it may, yet, be possible to schedule a C&P examination during a flare-up where a flare-up is known to last a month or longer.
Luckily, this court decision also discussed what a C&P examiner must do if the examination is not scheduled during a flare-up. The decision holds that even if an examination is not able to be scheduled during a flare-up, the C&P examiner is still supposed to give an opinion as to how the veteran would be functionally limited during a flare-up. The examiner can use various pieces of evidence to make this opinion, such as the veteran's own description or other "buddy statements", which are written statements from others about the veteran's condition.
What this new court decision means is that veterans can, more easily, obtain higher disability ratings for injuries to their neck, back, knees, or other joints. Overall, the court championed another big win for veterans.
Douglas G. Jackson is the managing attorney at The Law Firm of Douglas G. Jackson. His practice areas include representing veterans in obtaining disability benefits either through the Department of Veterans Affairs or through the Social Security Administration. Mr. Jackson is a member of the National Association of Veteran’s Advocates (NOVA), he is a mentor at the University of South Florida’s Veterans Success Program, and he is the founder of a not-for-profit organization designed to promote leadership and education. Mr. Jackson is accredited by the Department of Veterans Affairs to represent disabled veterans, he is eligible to represent disabled individuals before the Social Security Administration, he is admitted to practice law before the Court of Appeals for Veterans Claims and he is licensed to practice law in the State of Florida. To contact Mr. Jackson, you may email him at djackson@GetYourLegalAction.com or call him at 1-800-704-6045.