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.