Favorable Court Case Ruling on Disability Claims

[Jimmer]

In a recent court case decision Sharp vs. Shulkin, the courts issued a favorable ruling pertaining to disability claims for individuals  with back, shoulder, neck, and joints.  The court said the current rating is "outdated".  The court states "The board must obtain a new VA medical examination and opinion that adequately addresses functional loss if any during "flare-ups".  The court will set aside portions of the March 16, 2016, board decision denying evaluations in excess of 10% FOR RIGHT, LEFT, SHOULDER, HANDS, ELBOWS, JOINTS, FOREARMS. BACK and remand those matters for additional development and readjudication  consistant with this decision".  This means that individuals with disabilities of the muscular-skeleton area stand a much great chance of receiving more then a 10% disability.  The case is dated 9/6/2017, and I just cam across it. 

[Vync]

It makes me wonder how the VA defines a "flare up" and how it will factor into ratings.

[pwrslm]

The Courts decision is based on existing regulation and law. This means that any vet who was stuck because the decision relied on a DBQ or medical opinion that declined to speculate what the condition could have been under situations where it got worse or flaired up has grounds for an appeal (based possibly on CUE). If the RO accepted an inadequate exam because of this then it would violate VA handbooks on the issue and it means that the RO failed to insure that an adequate examination was made.

i.e., "the inability . . . to perform the normal working movements of
the body with normal excursion, strength, speed, coordination[,] and endurance"—including as
due to pain. 38 C.F.R. § 4.40 (2017).

"DeLuca's requirements are reflected in the VA Clinician's Guide, which "provides
information for performing examinations that meet the requirements of federal law" and "explains
the law in clinical terms." VA CLINICIAN'S GUIDE § 0.1 (March 2002). When conducting
evaluations for musculoskeletal disabilities, examiners are instructed to inquire whether there are
periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the
precipitating and alleviating factors; and estimate, "per [the] veteran," to what extent, if any, they
affect functional impairment. See generally id., ch. 11. These instructions appear in worksheets
pertaining to musculoskeletal examinations of the spine, shoulders, elbows, wrists, hips, knees,
ankles, feet, and hands, as well as muscles." (Sharp v Shulkin 9/6/17)

Edited November 1, 2017 by pwrslm