The U.S. Court of Appeals for Veterans Claims issued a decision last month that could make it easier for veterans with injuries to the back, neck, and joints to obtain higher disability ratings, even in cases where veterans are already receiving disability benefits for such injuries.
The recent case, called Sharp v. Shulkin, reviewed the Department of Veterans Affairs’ current system for assessing the origin and extent of a veteran’s disability and clarified the responsibilities of Compensation and Pension examiners and the Board of Veterans Appeals when it comes to giving an opinion on pain flare-ups caused by musculoskeletal disabilities. The court ultimately ruled that the system was inadequate, because not all C&P examiners consider flare-ups and pain when determining what disability rating a veteran should receive.
Bobby P. Sharp, an Army Korean War veteran who suffers from numerous musculoskeletal injuries, argued that VA medical examinations he received were inadequate because the examiner failed to “ascertain adequate information — i.e., frequency, duration, characteristics, severity, or functional loss — regarding his flares by alternative means,” according to court documents. Sharp contended that the 10% disability rating he received for his injuries was insufficient because his “September 2015 evaluation was inadequate for evaluation purposes and the Board’s finding to the contrary was clearly erroneous.” In September 2017, the claims court agreed.
The court’s decision means that the VA must now enact measures to ensure that C&P examiners do not overlook flare-ups and pain when assessing a disabled veteran. The VA must attempt to schedule a C&P examination when the veteran is experiencing a flare-up, but if it can’t the practitioner is still expected to offer a professional opinion on how the veteran could be “functionally limited during a flare-up,” notes Military1.
In theory, this will give examiners a more comprehensive understanding of the injury in question. If this isn’t feasible, the examiner must prove they’ve collected as much information and evidence as possible before saying to the board that they can’t offer a medical opinion “without resorting to speculation.” Further, the appeals board bears the burden of ensuring the examiner has done their due diligence or find an examiner experienced enough to offer a more informed medical opinion.
So, if a C&P examiner doesn’t witness the flare-up, how can they form a non-speculative opinion about it? As Military 1 reported, the court decided that veterans themselves can submit evidence for consideration, such as their own description of the flare-ups and pain they experience, or “buddy statements” — written statements from people who know the veteran and can testify to the extent of their suffering.
All of which will make it a lot easier for veterans to secure higher disability ratings for injuries they sustained in the military. Meanwhile, the Sharp v. Shulkin case, which ruled that Sharp was entitled to another C&P assessment consistent with the new guidelines set by the court provides a precedent for other veterans who want to challenge their disability ratings. If you think this applies to your case, then we recommend you reach out to a veteran service officer to help you navigate the appeals process.