VA disability claims cover disabilities caused by traumatic injuries, such as gunshots, shell fragments, athletic activity or physical training, and other injuries. Service-connected orthopedic injury can lead to disabilities that include muscle damage, motor and sensory nerve impairment, joint impairment, and amputation.
This article reviews common orthopedic injury VA disability claims, common mistakes, what you can do if you have a VA disability rating dispute with the VA, and how to increase VA disability ratings.
The most common orthopedic injury VA disability claims are conditions of the spine, as well as ankle and knee injuries.
VA disability ratings for spine injuries largely focus on the range of motion of portions of the spine. For example, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees falls within the 10% rating range. However, when the range of motion dips to 15% or less, that falls within the 30% rating range. Unfavorable ankylosis (stiffness and rigidity) of the entire spine rates at 100%.
Other orthopedic conditions are evaluated in different ways. For example, for wrist replacement (prosthesis), the condition is rated at 100% for one year following implantation, and thereafter with chronic severe and painful motion or weakness may rate at 30% or 40%. Intermediate weakness, pain, or limitation of motion will be evaluated the same as wrist ankylosis (stiffness and rigidity) with a minimum rating of 20% and sometimes as high as 100% in the case of extremely unfavorable ankylosis equivalent to a loss of use.
Ratings for orthopedic conditions are done by comparing the severity of the condition with detailed charts set out in federal regulations. Your medical records and any C&P examination findings will be part of that evaluation.
Veterans are tough, and thus it is common for them not to file a VA disability claim for an orthopedic injury until the condition is unbearable. You really should file your VA disability claim shortly after discharge and long before it develops into an intolerable condition. This is because it is much easier to establish a service-connection shortly after discharge than years down the road after you’ve been working, playing, or had other trauma to your body.
For example, if you suffered a knee injury in service, but it has healed enough that it only bothers you now and then, you may figure there is no point in making a VA disability claim. However, you don’t know what will happen over the next few years and don’t know if what is tolerable now will be tolerable later. If you go ahead and file your VA disability claim, you can get the VA to acknowledge that your knee injury is service-connected and even if they give you a 0% disability rating, you have established the record of service-connection. Then, if your condition deteriorates over time, you can go back to the VA and ask for an increased rating without starting from scratch. If you wait until years later after your discharge it is too easy for the VA to speculate that your knee condition was caused by something else you did in the intervening years and deny your claim.
The VA disability process begins with you filing your initial VA disability benefits claim. You will need to complete and submit the VA Form 21-526EZ and any additional forms required for your type of claim. Remember that it is unlawful for anyone to charge a veteran for preparing their initial application. You will probably want an attorney to represent you on VA claim appeals, however, if your claim is denied or underrated.
Unfortunately, the VA makes mistakes in reviewing VA disability benefit claims. They actually deny over 70% of initial claims. Don’t despair, however, because over 70% of appealing veterans who are represented by private lawyers get a better outcome (or at least a remand, or second look) at their claim.
One common mistake is the use of the wrong specialty for a C&P Exam. Part of the process for a VA disability claim is often conducting a C&P Exam (Compensation & Pension Examination). The assigned medical professional conducting those C&P Exams are supposed to follow a very specific process and questionnaire to obtain the necessary information to determine an appropriate rating. However, the C&P Exams are more often than you might think conducted by medical professionals from some other discipline. For example, a dermatologist might be doing a C&P Exam for a spine injury. A nephrologist (specializes in kidney problems) might be doing a C&P exam for cancer. This type of mistake can be addressed by appealing your ratings decision.
Another common mistake is the failure of the VA to obtain or evaluate an orthopedic claim based upon your condition during a flare-up or basically on your worst day. If you have an orthopedic injury, you already know that your condition is not the same every day. Some days are good, your body isn’t in much pain and your joints are moving well, but there are other days, bad days, when you may barely be able to get out of bed because of back pain or struggle to walk up the steps to your place of work. For your VA disability claim, the VA should evaluate your condition on your worst day, not the good days. This mistake can also be appealed.
There are more. Talk to an experienced VA disability claim attorney to see what mistakes the VA may have made on your ratings decision, and you may be able to get an increased VA disability rating.
Absolutely. The VA makes mistakes on VA disability benefits claims decisions all the time, and the remedy is VA disability appeals. There are multiple ways to appeal ratings decisions that you think are wrong, either denying your claims or underrating their severity.
There are currently three types of appeals you can request, depending on the specifics of your case. You can ask for a Higher Level Review, which is a second look at your claims file by more experienced examiners. This might be appropriate when the VA simply overlooked or misunderstood documents and evidence they already had access to. A Supplemental Claim allows you to add additional evidence to your claim file, particularly filling in missing pieces of evidence in your claim. The third type is a Board Review which allows for a live hearing; sometimes, it’s easier to explain your case in front of an actual administrative judge. Learn more about the appeal process here.
Do you have an orthopedic injury and think the VA improperly denied or underrated your condition? Talk to Veterans Law Group. The VA disability attorneys at VLG have helped thousands of veterans with their VA disability claim appeals and recover millions in dollars of back pay for them every year. Let us do a complimentary review of your case and see if we can help you too.