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.
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