How Should the VA Rate a Veteran's Service-Connected Arthritis?

One of the more common medical conditions that military veterans seek to have service-connected is arthritis of the knees.

It should come as no surprise, then, that one of the most common errors that the VA makes is failing to properly rate arthritis of the knees.

Here is a general summary of how you can double-check the VA's rating to make sure that they properly evaluated and rated your service-connected arthritis of the knee.

Before getting started, it is important to understand that, generally, the VA is not permitted to "pyramid" ratings. A "pyramid rating" happens when the VA rates the same disability under multiple - and sometimes different - diagnoses. Read the regulation at 38 C.F.R. § 4.14 to learn more about pyramid ratings.

Arthritis is different. If a military veteran is service-connected with arthritis of the knees, that Veteran might be entitled to up to 3 ratings for the same condition. They key word is "might" - what is important is that the VA evaluate and rate the unique way that arthritis manifests in your knees.

Here are three (3) factors that the VA should look at to see how to rate arthritis of the knees for any military veterans.

1) Functional Loss. Functional Loss is a limitation to the range of motion of the knee. The VA Rater should focus on what the military veteran's medical records say about his/her ability to perform the normal working movements of the knee with "excursion, speed, strength, coordination and endurance". This aspect of arthritis of the knee is typically rated under the Diagnostic Codes 5000-5010 - (Diagnostic Codes and their criteria are found at 38 C.F.R. Part 4.)

2) Instability. Instability is the inability of the knee to play the "support" role it plays - an inability to keep you standing and balanced. If this limitation is present in your knee arthritis, the VA examiner should rate it using three (3) criteria under Diagnostic Code 5257:

a) slight (which equates to an additional 10% rating)

b) moderate (which equates to an additional 20% rating)

c) severe (which equates to an additional 30% rating)

3. Pain. The most common and recognizable manifestation of arthritis is pain. The VA typically does not consider pain in determining the proper rating for a disease or condition. Arthritis is a little different; even if there is no Functional Loss, the VA Examiner can grant a rating for pain if there is evidence that the military veteran is impacted by pain when he or she uses the knee in normal, daily, repetitive use and/or when pain limits the Range of Motion.

Confused? Don't worry. The VA Examiner probably is, too.

I have seen a lot of improper and bizarre ratings and evaluations of pain for service-connected arthritis of the knee.

In fact, I recently looked at a claim where the VA examiner rated arthritis as sciatica. Sciatica is a condition that relates to the nerves of the spinal cord; while pain may refer down the legs to the knees in sciatica, there was no diagnosis for the condition in the C-File - the examiner simply never figured out that arthritis and sciatica are two totally different conditions.

One caveat - the explanation above is simplified, and under the facts of your case, it may not be the right analysis. Ever case is different, every military veteran's medical situation is unique.

If you are a military veteran with service-connected arthritis of the knee, it is highly recommended that you bring your arthritis rating decision - and the code sheet - to an attorney or VSO representative that is familiar with the proper way to rate arthritis.

If you don't know what the VA Code Sheet is, it is even more important that you get it in to have someone review your rating to make sure you are getting all the compensation you are entitled to.

If you are a military veteran and have questions about your VA Disability Benefits claim, contact a Veterans Disability Benefits attorney.

View the original article here

Guide to the Use of Lay Evidence in a Veterans Benefits Claim

When a military Veteran files a disability or benefits claim with the Department of Veterans Affairs for compensation due to injuries that occurred in military service, they are not required to rely solely on medical evidence. In fact, since soldiers rarely go on sick call when they are injured - and since service medical records are not always preserved or accurate - Veterans are encouraged to rely on lay evidence or testimony to substantiate their claim.

In fact, when a Veteran introduces lay evidence into the record the VA Regional Office (VARO), Board of Veterans Appeals (BVA) and the Court of Appeals for Veterans Claims (CAVC) must consider the lay evidence.

What is lay evidence? It is a broad category - generally, it is any evidence or testimony that does not come from an expert - medical or otherwise.

Here are some situations when a Veteran can (and should) use lay evidence or testimony:

1) If a Veteran has someone that can describe the symptoms of a particular medical condition or injury, it is permissible to support a subsequent diagnosis by a medical professional. This was essentially the holding in Jandreau v. Nicholson , 492 F.3d 1372 (Fed. Cir. 2007). So, for example, if a Veteran has been diagnosed with Parkinson's disease, he or she can introduce lay evidence of the symptoms of Parkinson's that other people observed in the past.

2) A veteran can use lay evidence or testimony to identify some medical conditions. These are usually going to be medical conditions that are simple or unmistakeable like a broken leg. Sometimes, lay evidence or testimony can prove a more complex condition - like Parkinson's disease - because the symptoms are so readily recognizable. Compare that to cancer - a lay witness or lay testimony will rarely be able to prove-up the symptoms of pancreatic cancer - though many of us are familiar with the disease, non-medical witnesses are generally not competent to testify to its symptoms or diagnosis.

3) A veteran can always use lay evidence or testimony to try to prove-up a contemporaneous medical diagnosis. For example, a Veteran can testify that he was diagnosed with a medical condition.

4) A Veteran can - and should - use lay evidence or testimony to prove up factual matters within that witnesses personal knowledge. These are commonly known as "buddy statements", and are competent evidence to prove that a Veteran experienced pain in service, went on sick call, was placed on limited duty, received physical therapy, etc. The uses are boundless - the key element however is that the witness must have personal, first-hand knowledge. A more in-depth discussion of this use is found in Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

A common use of Number 4, and the rest of the examples, is to prove up "continuity of symptomatology" - a legal element of direct service-connection in some types of Veterans' claims.

If a Veteran does provide lay evidence or testimony, neither the VARO or the BVA can exclude or fail to consider this evidence simply because it refers to or discusses medical matters. (Believe it or not, the BVA does this very thing quite frequently).

Instead, the VARO and BVA must:

1) Make a determination as to whether lay evidence is what the law refers to as "competent" (i.e., sufficient to prove what it seeks to prove). If the BVA or VARO decides it is not competent, they will have to include an adequate explanation of that conclusion. This is discussed in Jandreau v. Nicholson , 492 F.3d 1372 (Fed. Cir. 2007).

2) The VARO or BVA have to weigh the evidence: in other words, they have to put the lay evidence on a scale against the other evidence that is in a Veteran's record. The purpose of weighing the evidence is to decide whether it is probative or not. Read more about this requirement in Buchanan v. Nicholson , 451 F.3d 1331 (Fed. Cir. 2006).

3) The BVA or VARO may, in certain situations, need to determine whether or not the evidence is credible. Credible doesn't always mean "true" or "false" - it really just means whether the evidence can be relied upon by the person making a decision on issues of law or fact. For example, someone might tell you that a car accident just happened at the intersection of Main and 1st Street. That may or may not be true - but you might be more likely to believe it is true based on certain factors: who told you, why they told you, where they told you, etc. You'd be more likely to believe something like that is true if the person telling you was covered in blood and 1 block from the intersection. You can read more about this element in Barr v. Nicholson, 21. Vet. App. 303 (2007).

If you find yourself in a position where a VA Regional Office - or the Board of Veterans' Appeals - has ignored or disregarded lay evidence or testimony that you submitted without given you an adequate reason or basis for its decision, you may have grounds to appeal the decision to the Court of Appeals for Veterans Claims.

If you are a Veteran and have questions about your VA Benefits claim contact a Veterans Benefits attorney.

View the original article here