Flare-ups and Functional Loss: Obtaining a Higher VA Rating for Your Service-Connected Joint Disabilities.

 Posted on March 25, 2019 in Uncategorized

Are you receiving a 10 percent rating for your service-connected back injury, but there are times when the pain is so bad that you can't pick something off the floor? Perhaps, you have a 0 percent rating for your knee but due to weakness, you can't climb up the stairs? You think you surely should be receiving a higher rating due to the limitations your disability imposes upon your life. If this sounds familiar, you are not alone.

The VA frequently underrates back and joint disabilities. The laws and regulations concerning how the VA must rate back and joint injuries are complex and confusing. Many times, it's easier to assign a lower rating than trying to correctly apply the law and the correct rating. This article helps explain the factors the VA should take into account when rating back and joint disabilities. It also provides some ideas on how to ensure you are receiving the highest rating possible.

How does the VA rate back and joint disabilities?

Most joint disabilities are rated based on a limitation of motion caused by the disability. For example, under the VA rating schedule, a Veteran is entitled to a 20 percent rating for a lumbar spine injury if he can flex his lumbar spine forward between 31 and 60 degrees. However, a Veteran may be entitled to a higher rating when there is evidence that the disability causes additional functional loss due to pain, weakened movement, excess fatigability, and lack of coordination.

The veteran's disability must be rated where the functional loss occurs. Take, for instance, the above example of the veteran with a lumbar spine injury. If during that Veteran's VA exam, the examiner noted that the Veteran experienced painful forward flexion in his lumbar spine at 29 degrees, then he must be compensated for functional loss and the proper rating would be 40 percent.

A higher rating may also be awarded when there is an additional loss of limitation of motion due to pain during flare-ups or when the joint is repeatedly used over time. For instance, a Veteran receives a 20 percent rating for his left shoulder injury because he can raise his dominant arm to shoulder level or 90 degrees. However, the Veteran told the VA examiner that each day after he completes his job as a waiter, carrying heavy trays, his arm experienced fatigue and he cannot raise his arm above 25 degrees. The functional loss due to fatigue pain must be rated at 25 degrees and the correct rating would be 40 percent.

How Can I Obtain the Maximum VA Rating for my Joint Disability?

The above illustrates how large an impact functional loss and flare-ups can have on your VA disability rating. To ensure you receive the maximum rating that you are entitled to, there are several steps you can take including submitting lay statements and reviewing the VA exam.

Submit A Statement of functional loss

First, submit a statement describing the limiting effects of your daily life with this disability. Describe how the disability impacts all normal working movements. How does the pain, weakness, etc. limit your ability to move and function with normal strength, speed, coordination, and endurance? For example, if your knee weakness prevents motion after walking several blocks, you should submit a statement to that effect. Similarly, if you cannot bend and must use a hangar to lift objects from the floor, that should be stated. The VA examiner would then be required to review the statement and address whether there is an additional limitation of motion and at what point functional loss affects motion.

What did the exam say?

Next, you should obtain a copy of your VA examination. It is easy to obtain a copy of the exam report so that you can ensure its adequate, accurate and follows VA law. Complete this form: https://www.va.gov/vaforms/medical/pdf/vha-10-5345a-fill.pdf and send or bring it to the VA medical facility which performed your examination.

In order to be adequate for VA rating purposes, joint examinations must include:

• A full description of the effects of the disability upon the person's ordinary activity
• Notation of when incoordination, weakened movement, and fatigability sets in
• Whether there is pain on motion, and if so, when pain sets in, and whether it causes functional loss
• All the above on repetitive motions
• If the Veteran indicates that he or she suffers from flare-ups or increased pain when the joint is used repeatedly over time, whether there is any additional limitation of motion or functional loss during flare-ups, and if so, where on the range of motion additional functional loss occurs.

If your exam does not contain the above or accurately reflect the limitations of your disability, send a letter to the VA explaining this. You may be entitled to a new exam.

Appeal if necessary.

If you do the above steps, but feel as if you are still underrated for your joint or back disability, don't give up! If you want to contest the rating assigned, you have one year from the date of the final determination to file VA Form 21-0958, Notice of Disagreement. It is advisable to speak with a VA-accredited attorney or representative before submitting your appeal.

The material and information contained on these pages and on any pages linked from these pages are intended to provide general information only and not legal advice. You should consult with an attorney licensed to practice in your jurisdiction before relying upon any of the information presented here.

Edward M. Farmer is a U.S. Army veteran and an experienced VA attorney in DuPage County Illinois. The majority of his career has been dedicated to assisting veterans with legal issues nationwide. Call toll-free at 1-800-700-4174.