About Chronic Pain
Chronic pain occurs when a person suffers from pain in a particular area of the body for at least three to six months. This type of pain lasts beyond the normal amount of time that an injury takes to heal and can come from many things, including normal wear and tear, aging, and other medical conditions. However, chronic pain can also be the result of active duty military service. Specifically, research shows that chronic pain is more common in veterans than the non-veteran population. Chronic pain causes a number of debilitating symptoms, including the following:
- Fatigue
- Sleep impairment
- Muscle aches and joint pain
- Loss of stamina and flexibility, due to decreased activity
- Mood problems, including depression, anxiety, and irritability
Overall, chronic pain can have a significant impact on a veteran’s ability to work and perform activities of daily living.
Saunders v. Wilkie
In April 2018, the United States Court of Appeals for the Federal Circuit held that VA must award disability benefits for pain due to military service. Prior to this decision, the Court of Appeals for Veterans Claims (CAVC) had held that pain alone without an underlying diagnosis was not compensable.
The Federal Circuit’s decision means that if a veteran has pain related to their time in service, but does not have a medical diagnosis, they can still receive VA disability benefits. This ruling is significant because it overturns 19 years of precedent, opening up a previously closed avenue for veterans seeking VA disability compensation for chronic pain caused by their military service.
VA Service Connection for Pain
Direct Service Connection for Pain
Service connection or “service-connected” is the acknowledgment by VA that a veteran’s current health condition is related to their military service. Veterans need to establish service connection in order to receive disability compensation from VA. Before theSaunders decision, in order to establish service connection on a direct basis, veterans typically needed to show the following:
- A medically-diagnosed condition;
- An in-service event, injury, or illness; and
- A medical nexus linking the current diagnosed condition to the in-service occurrence.
TheSaundersdecision affects the first of those three criteria: a medically diagnosed condition. VA can now award service connection for chronic pain that lacks a specific diagnosis, as long as that pain is connected to an event that occurred or symptom that appeared while the veteran was on active duty. Furthermore, the veteran’s chronic pain must cause functional impairment or loss. Subjective complaints are not sufficient for an award of disability compensation.
Secondary Service Connection and Pain
Many times, veterans suffer from orthopedic conditions or pain that then produce a secondary condition. In these cases, veterans may be eligible for service connection for the secondary condition if they can prove that it was caused or aggravated by their already service-connected condition. Importantly, secondary service connection based on chronic pain can be established in a number of ways. For example, a veteran is service-connected for chronic pain and as a result of their pain, they are prescribed several medications. Oftentimes, medications bring about side effects, such as gastrointestinal complications. As such, a veteran who is taking multiple medications for chronic pain may subsequently develop irritable bowel syndrome (IBS) or gastroesophageal reflux disease (GERD). If VA finds that the veteran’s gastrointestinal issue is due to their medication use, which was prescribed for a service-connected condition, secondary service connection may be awarded.
Importantly, chronic pain can also lead to mental health conditions, including depression and anxiety. Oftentimes veterans with service-connected chronic pain will later develop depression because they are no longer able to engage in the activities they once enjoyed. This decline in functioning may produce feelings of sadness, hopelessness, and worthlessness. In this case, veterans may be eligible for secondary service connection for such mental health conditions if caused or aggravated by their chronic pain.
Service Connection by Aggravation and Pain
Veterans may also establish service connection by aggravation for chronic pain if they can demonstrate that it existed at the time of entry into service but was made worse or “aggravated” by service. Here, it is important for veterans to show that it was their service that led to the worsening of the condition as opposed to the natural progression of the condition.
How VA Rates Chronic Pain
VA does not have a specific diagnostic code or rating criteria for chronic pain. To receive VA disability benefits for chronic pain, the symptoms resulting must be ratable. In other words, VA assigns ratings based on the functional impact from the service-connected condition. Here, functional loss or impairment refers to the inability to perform the working movements of the body with normal strength, speed, coordination, and endurance. For example, a veteran with a service-connected back condition that produces chronic pain should be able to receive VA disability compensation for problems with sleeping, standing, lifting, sitting, and walking. As such, VA will assign a rating based on those impairments related to the chronic pain.
Example: VA Disability Rating for Orthopedic Pain
For example, if a veteran were to become service-connected for orthopedic pain, VA would likely look at the rating system for musculoskeletal conditions and diagnostic codes. Specifically, VA will consider how the veteran’s orthopedic pain limits their range of motion (i.e., ability to bend forwards, backwards, sideways, and rotate at the waist) because that is how musculoskeletal conditions tend to be rated. Then, VA should consider a wide range of other factors, including weakness, the presence of flare-ups, pain on motion, fatigability, and more.
Submit Evidence to Support Your VA Claim for Chronic Pain
It is important to submit evidence to support your claim for service connection for chronic pain. Evidence can be in the form of treatment records, lay statements, or nexus letters. Specifically, it may be beneficial to submit records indicating that you receive acupuncture or massage therapy for your pain to reflect symptomatology that requires continued treatment. Veterans can also submit lay statements describing their pain and the functional loss they experience as a result.
Finally, veterans can have their healthcare provider write a nexus letter linking their chronic pain and resulting limitations to their military service. When having a provider write a nexus letter, it is helpful to instruct them to use the following language, “at least as likely as not,” when referring to whether the veteran’s condition is related to their time in service.
Compensation & Pension (C&P) Exams for Chronic Pain
It is important to note that VA will oftentimes order the veteran to attend a Compensation & Pension (C&P) exam to determine a medical nexus opinion. Again, veterans are hoping for the VA examiner to opine that it is “at least as likely as not” that their chronic pain is due to their military service. If the examiner decides that it is “less likely than not” that the veteran’s chronic pain is due to their time in service, then service connection will most likely be denied.
Veterans should always request a copy of the C&P exam results after attending. Importantly, VA will not provide a copy of the exam unless specifically requested by the veteran. Having a copy of the results can allow veterans to see VA’s reasoning for providing a positive or, more importantly, negative nexus opinion. Furthermore, it will allow veterans to determine if VA completed all of the appropriate and necessary steps related to examinations for chronic pain. If the veteran finds that such steps were not completed properly, or the information of record is incomplete and/or inaccurate, they can argue that the C&P exam is inadequate for rating purposes and request a new one.
TDIU and Increased Rating VA Claims for Pain
Total disability based on individual unemployability (TDIU) occurs when VA awards veterans with a total disability rating (100 percent) based on their inability to work due to their service-connected conditions. Importantly, veterans’ combined disability ratings do not need to equal 100% in order to receive TDIU benefits. Instead, TDIU represents an alternative path to the highest compensation amount.
The Court of Appeals for Veterans Claims (CAVC) has recognized that chronic pain can contribute to individuals’ inability to work. For example, chronic pain may produce an inability to concentrate, sit/stand for prolonged periods of time, lift/carry a certain amount of weight, etc. All of these activities are typically required for optimal job functioning. Therefore, if veterans are unable to complete everyday job responsibilities and therefore unable to work as a result of their chronic pain, they should consider applying for TDIU.
