New Veterans' Court Decision Could Help Veterans Receive Increased Disability Ratings for Service-Connected Injuries
The Court of Appeals for Veterans' Claims (the Court) issued a decision last month in the case of Sharp v. Shulkin, which could make it easier for Veterans with injuries to the back, neck, and joints to obtain a higher disability rating in cases where the Veteran is appealing for an increased compensation rating.
The Court, in their decision, examined the current system of Compensation and Pension Examinations (C&P Exams), which are ordered by the VA to determine the origin and severity of a Veteran's disability or disabilities and used in the VA's determination of cases regarding claims for service connection and claims for increased compensation ratings. Specifically, the Sharp case provides guidance and instruction regarding C&P examiners and their medical opinions regarding painful flare-ups caused by musculoskeletal conditions. Currently, not all C&P examiners consider functional loss due to pain and flare-ups. In my experience the majority of C&P examiners fail to consider functional limitations based on pain and flare-ups.
The Court's decision means that C&P examiners must make an effort to schedule the Veteran for a C&P exam when the Veteran is experiencing a flare-up. Further, if a C&P exam cannot be scheduled during the actual occurrence of a flare-up C&P examiners must show they've collected as much evidence and information concerning functional loss due to pain and flare-ups before stating that an opinion cannot be offered without resorting to mere speculation. Specifically, examiners can and should review the statements and descriptions of the Veterans themselves regarding their particular condition and how pain and flare-ups cause functional limitations. Further, examiners must review and consider "buddy statements" (written statements from people who know the Veteran and have personal knowledge of how pain and flare-ups effect the Veteran's functionality) if they have been provided by the Veteran.
C&P exams often fail to show an accurate picture of a Veteran's disability or disabilities, but the new responsibilities of examiners as stated in the Sharp case should make it easier for Veteran's to establish that an increased disability compensation rating is warranted in their particular case.
If you have questions about the new developments in C&P exams or any question related to VA benefits, please contact the experienced Veterans' disability attorneys at Gardberg & Kemmerly, P.C. today for a free case evaluation. Gardberg & Kemmerly serves Veterans across the United States from their home office in Mobile, Alabama.