For the past several years, the VA has acknowledged that veterans who served in the Republic of Vietnam between 1962 and 1975 were likely exposed to tactical herbicides such as Agent Orange.  The VA regulations mandate that any veteran who served in Vietnam (or, now, in some other areas where Agent Orange was stored or sprayed) during the relevant time period is presumed to have been exposed to Agent Orange.   The VA has identified a list of diseases which it accepts as having been caused by Agent Orange.  If a veteran who has been exposed is affected by one of these diseases, it is presumed to have been caused by his exposure to Agent Orange and will, then, be considered service connected.  In 2010, the VA expanded its list of twelve Agent Orange-related diseases to include Parkinson’s disease, chronic B-cell leukemia, and ischemic heart disease.  

What is ischemic heart disease?   It is a disease which causes lack of blood flow and oxygen to the heart muscle.  Not all heart disease qualifies for the presumption, but just because a veteran has not specifically been diagnosed with ischemic heart disease does not mean that he does not have the disease.  Ischemic heart disease includes diagnoses such as coronary artery disease, coronary heart disease, ischemic cardiomyopathy and myocardial ischemia.  The veteran may or may not have initial symptoms such as shortness of breath, unexplained fatigue, heart palpitations, a sensation of heartburn or indigestion, dizziness and/or lightheadedness.  Vietnam-era veterans with heart disease should ask their doctors if their particular diagnosis is a form of ischemic heart disease.

Importantly, so long as the veteran was exposed to Agent Orange (either directly or presumptively), he need not have been diagnosed with ischemic heart disease within any certain time frame.   In other words, if a veteran served in Vietnam in 1969 and develops ischemic heart disease forty years later in 2009, he is still entitled to service connection for his disease.  In addition, although there are other risk factors for ischemic heart disease, such as smoking, obesity, high cholesterol, hypertension, and diabetes mellitus, if the veteran has been exposed to Agent Orange, he is entitled to a presumption of service connection even if he has those other risk factors.

In addition to new claims for ischemic heart disease, the VA must also reopen and re-adjudicate the claims of Vietnam-era veterans who applied for compensation for heart disease prior to the change in the VA regulations.  The veteran could, then, be entitled to an effective date all the way back to his earlier claim. 

On that note, medical research is constantly identifying new links and relationships, and veterans should be aware that just because their particular illnesses or diseases have not yet been recognized as being related to Agent Orange does not mean that they will not be recognized at some point in the future.  If the veteran feels that there is a link, it is worth filing the claim.  The claim may initially be denied, but if the VA then later recognizes the veteran’s disability as connected to Agent Orange, he could be entitled to an effective date as of the date he filed his claim.

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When a claimant files for disability, whether filing for VA and/or Social Security Disability Benefits, his or her work history is always very important in the proceedings.  The relevancy somewhat differs in the VA context versus Social Security; however, the common thread is that a person’s past work, or lack thereof, will usually somehow play a role in the ultimate outcome of the claim.

The Social Security Administration (SSA) defines past relevant work as “work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it.” 20 C.F.R. § 404.1560. Past relevant work is extremely important in Social Security Disability cases. Basically, SSA will review any work performed within 15 years prior to deciding your case, in order to determine if you are capable of returning to any of your past relevant work. In order to determine if you are capable of returning to your past work, SSA will consider several factors, such as:

• any job skills you may have acquired
• tools or machines you may have used (i.e. computers,  special equipment, etc.)
• the number of hours per week you worked and your rate of pay (i.e. full time v. part-time v. seasonal, etc.)
• the physical aspects of your job (i.e. sitting, standing, walking, lifting, carrying, and postural requirements)
• the mental aspects of your job (i.e. stress demands, multi-tasking, etc.).
• any supervisory or lead worker responsibilities

If SSA determines that you are capable of returning to past work as you performed it, even with your disabilities, then they will find that you are not disabled, and your claim will be denied.  Even if you are not capable of returning to past work as you performed it, then SSA will go on to consider if you are capable of performing any of your past work as it is “generally performed” in the national economy, and if not, whether you are able to adjust to other work in the national economy considering your age, education and past work experience.  Again, if you are able to adjust to other work, then your claim will be denied.

As a practical matter, work history matters to the Administrative Law Judges (ALJ).  Most ALJ’s will look at a claimant’s work history to see if they have a strong work record. If a person has worked and paid into the Social Security system on a consistent basis, and then all of a sudden the earnings stop or are substantially reduced, that may be a favorable indication to the ALJ that the person is legitimately disabled. In my experiences, many ALJ’s believe that most people with strong work backgrounds would not stop working unless there was a good reason. However, if a claimant does not have a strong work record, some ALJ’s take that as an indication that a claimant is trying to obtain the benefit of Social Security Disability, without ever really contributing to the system in a meaningful way. 

In the VA context, the relevance of work history is viewed differently. The VA does not evaluate a veteran’s past work in order to determine as a threshold matter whether or not the veteran is eligible for service connected disability benefits.  So for example, a veteran can be working full time or be  capable of doing so and still be eligible for VA service connected benefits. This is because VA rates disabilities based on the average impairment in earning capacity resulting from the disability, in 10 percent increments. So, a veteran can be “partially” disabled with the VA, meaning it is not an all or nothing determination, unlike in the Social Security context.  In Social Security, either you are disabled or you’re not.

 However, it should be noted that past work history is still used by the VA in a number of other contexts, such as evaluating the origin or severity of impairments, determining eligibility for total disability based on individual unemployability (TDIU) benefits, and in determining eligibility for non-service connected pension. For example, when evaluating mental impairments, the VA treating providers and C&P examiners will often look to a veteran’s past work history to determine if the mental condition at issue has affected the veteran’s ability to obtain and/or sustain gainful employment.  For example, does the veteran have a history of getting fired from jobs (i.e. due to inability to deal with stress, temper flare ups), a history excessive absenteeism, a history of sheltered employment, etc.  If so, these factors may indicate a severe mental impairment that warrants a higher disability rating versus someone who has been able to successfully maintain employment over the years. Similarly, if a veteran is claiming service connection for a back condition; however, his or her post military work has been as a construction worker or heavy laborer, a claim for service connection will likely prove more difficult.

 In the TDIU context, the VA adjudicators will often look at the veteran’s Social Security earnings record to determine if the veteran is still working at a substantially gainful level, which would make the veteran ineligible for TDIU benefits.  The same concept applies to eligibility for non-service connected pension.

At the end of the day, the bottom line is that your work history matters.  It can affect your eligibility for disability benefits and also the determination as to how severe your disabilities are rated. Therefore, it is extremely important for Social Security claimants and veterans to think about how their disabilities have affected their work over the years, and to communicate those thoughts to their representatives in order to ensure that the claim is presented in the best manner before SSA or the VA. Knowing why your work history is important is a large part of the battle.

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When a veteran dies, there are several different types of benefits to which his or her survivors may be entitled.  It is important to note that there are deadlines for applying for these types of benefits, so the veteran’s dependents should not delay in filing a claim.  Three main types of benefits may be applied for by filing just one claim form—accrued benefits, Dependency and Indemnity Compensation (DIC) benefits, and death pension. 

Accrued benefits are due to the veteran’s survivors for any amount which was due and unpaid to the veteran at the time of death.  This can mean that the veteran had received a rating decision but had not yet been paid for his retroactive benefits, but it can also mean that the veteran had a claim for disability benefits which had not yet been decided.  Where the veteran had a pending claim for benefits that should have been granted based on the evidence in the file, he was entitled to benefits, and his qualifying survivors may also be entitled to those benefits.  To receive accrued benefits, a survivor used to be required to file a new claim and begin all over again at the regional office.  New laws, however, allow the survivor to substitute into the veteran’s claim at the same point in the process that the veteran had reached, whether that is prior to a decision by the regional office or into an appeal at the Board of Veteran’s Appeals or the Court of Appeals for Veterans Claims. 

A second main type of benefits, DIC benefits, may be available to the survivors of a veteran whose death is related to a service-connected disability.  DIC benefits are not dependent on whether the veteran was owed benefits prior to death.  For example, if a service member died on active duty, DIC benefits may be available to the qualifying survivors.  Similarly, if the veteran had a service-connected disability which caused or contributed to the veteran’s death, the family may be entitled to DIC benefits. 

DIC benefits may be available even if the veteran had not yet been service-connected for the disability that caused or contributed to death where evidence in the file demonstrates entitlement to service connection.  For example, if a veteran served “boots on the ground” in the Republic of Vietnam during the Vietnam War, he is presumed to have been exposed to herbicides such as Agent Orange.  If the veteran then developed ischemic heart disease which eventually caused his death, his cause of death would be service connected because ischemic heart disease is on a list of diseases that the VA accepts as having been caused by herbicide exposure.  Therefore, even if that veteran never applied for compensation for his heart disease, his qualifying survivors may still be entitled to DIC benefits. 

Another way in which survivors may be entitled to DIC benefits is if the veteran was totally disabled by service connected disabilities for ten years prior to his death.  This is true even if the service connected disability did not cause or contribute to the veteran’s death.  Similarly, if the veteran was totally disabled at the time he was discharged and for at least five years prior to his death, the family may be entitled to DIC benefits. 

A third major type of benefits for survivors is the death pension.  Unlike the other two benefits we have discussed, entitlement to the death pension does not necessarily require that the veteran had service-connected disabilities or that they were related to his death.  This benefit is based on financial need and claimants must meet certain income requirements.  To qualify for the death pension, the veteran must have served at least 24 months of active duty (though there are some exceptions to this rule), at least one day of which was during a period of war.  Furthermore, the veteran’s character of discharge must be other than dishonorable.  The requirement for service during a period of war does not mean that the veteran must have actually engaged in combat.  In fact, any veteran who has served since August 1990 has served during a period of war as the Persian Gulf War has never officially been ended by Presidential proclamation or law. 

Other benefits may be available to the surviving family members of disabled veterans, such as health care, funeral expenses or home loan benefits.  There are many options for assistance–get help finding out whether you or your family qualifies for benefits.

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In both Social Security and VA Disability law, an issue that frequently arises is the use of drugs and/or alcohol.  Usually, the issue is raised because a disabled Social Security claimant or veteran is using drugs and/or alcohol at the same time they are trying to pursue a disability claim.  When asked about drugs and/or alcohol, some of my clients are often astonished that there is even mention of drugs or alcohol in their file.  So, in both Social Security and VA cases, the question usually becomes:  now that my record mentions drugs and/or alcohol, what can or should I do about it?

In the Social Security context, a problem with drugs and/or alcohol is almost always fatal to a successful outcome in the case.  The law says that the Social Security Administration (SSA) will look to see if alcohol or drug use is a contributing factor that is material to the disabling impairment(s). In other words, would SSA still find the person disabled if he/she stopped using drugs or alcohol.  If the person would still be disabled if he/she stopped using drugs or alcohol, technically, he/she should be awarded benefits. However, this determination is normally not as simple as it sounds.

For example, imagine a person who suffers from depression and an alcohol or drug problem. The person is using alcohol or drugs to help cope with the depression, because in his/her opinion, the depression medications prescribed by the doctor do not seem to work. This scenario raises a few issues. First, it is important to know whether or not the person has been advised to stop drinking or using drugs by the doctor. If the doctor has advised the person to stop and they continue to engage in the behavior, SSA will likely determine that the person is ignoring medical advice. In other words, they are non-compliant with the doctor’s orders. Other considerations are also whether the person is using v. abusing, is it prescription drugs or illegal drugs, etc.   

In our experience, most judges will refuse to grant Social Security Disability Benefits to anyone who is abusing alcohol and/or drugs, including prescription drugs.  If there are errors or misstatements in the medical record regarding alcohol and/or drugs, it is crucial that the patient talks with his/her doctor and get the record corrected as soon as possible so as not to negatively affect the Social Security case.  If the allegations are true, the Social Security claim will likely be denied if the person does not stop the drugs or alcohol right away.

In the VA context, substance abuse is viewed in somewhat of a different light. Unlike Social Security Disability, an issue with drugs and/or alcohol is not always fatal to the success of a VA disability claim. The VA will evaluate whether or not the veteran is disabled due to ‘willful misconduct’ which is the proximate or direct cause or the claimed disabilities. Willful misconduct is defined in the VA regulations as “an act involving conscious wrongdoing or known prohibited action.” If the VA determines that a disability is due to willful misconduct, the veteran is not eligible for compensation or pension for any disabilities related to the misconduct. However, the veteran is still eligible to claim compensation or pension for disabilities not related to the misconduct.

A common example that arises in VA disability law is veterans with PTSD and alcohol or drug issues. There is research that indicates that many veterans use drugs and/or alcohol as a coping mechanism for serious psychological trauma they have suffered as a result of military service. Assuming that the veteran can establish that he/she suffers from service connected PTSD, and if he/she can prove that the alcohol or drug abuse is caused by or secondary to the PTSD, the VA regulations do allow for secondary service connection of the substance abuse disorder. Service connection under this theory would also extend to any other conditions that develop as a result of the substance abuse, such as cirrhosis of the liver.  So in other words, secondary drug or alcohol abuse in this context would not be barred from service connection based on willful misconduct.

Of course not every veteran with substance abuse and mental health issues will be able to obtain service connection for the abuse; however, the point is that under VA disability law, a successful outcome is still possible. 

In sum, the bottom line is that drugs and alcohol do matter. If allegations of drugs and/or alcohol are false, it is crucial that the veteran or Social Security claimant speak to his/her doctor right away to get the record corrected as soon as possible. Lastly, it should be noted that if there is a “past history” of abuse, the fact that the abuse is in the past needs to be clarified in the record as well.

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The VA benefits claims process can be long and confusing.  The VA disability process has many more layers than Social Security Disability Benefits where the only questions are—are you insured through the system and do your disabilities keep you from working..  First, you have to show that you are a veteran who is eligible for disability benefits.  Next, you must show that you have a current disability that is related to your active duty service.  Then, you have to show the severity of that current disability.  Finally, you must show what the correct effective date for the benefits is. 

So, after fighting for your benefits for several years, suppose you get a decision granting you some benefits.  For example, say that the VA finally acknowledges that your PTSD is related to service.  Getting a disability service connected is just the beginning.  You must still make sure that the VA got both the rating and the effective date correct. 

A story that I see all too often is a case where a veteran gets service connected after several years of fighting but the VA low balls him on both his rating and effective date.  The VA will service connect the veteran’s PTSD at 30% with an effective date of two months prior, which happened to be the date of the veteran’s C&P exam.  The VA then, overlooked the facts that the veteran filed this claim five years ago and that because of his PTSD the veteran is not working.

When a veteran receives a rating decision like the one above, he is at an important crossroads.  He has one year from the date of the decision to appeal it.  If he does not appeal within that one year then the rating decision becomes final.  Unfortunately, a lot of veterans are told that it is easier to ‘reopen’ a claim at this point versus appealing the decision.  After the one year appeal period, the veteran can submit new and material evidence to reopen the claim but only as it pertains to the rating.  At that point, however,  the decision regarding the effective date is final and the veteran cannot reopen that issue with new and material evidence.

I do not know why advocates advise veterans to reopen instead of appealing.  I’ve heard veterans tell me that they are told that it is faster to reopen or that they have a better chance to get the benefits.  I have found that neither of these reasons are necessarily true.

Most likely, if you choose to reopen your case, it will go back to the same individual that rated it the first time.  Even with new evidence, it is not likely that that rater will change his first decision.  If you appeal, though, you can select having your case reviewed by a decision review officer (DRO).  The DROs are the best rating officers in the VA.  They have been in the VA the longest and can spot simple errors made by more junior rating officers.  Even if the process does take longer, it would be worth it if you have a better chance of getting the correct outcome.

VA appeals can be long and exhausting.  But at the end of the day, when the VA finally acknowledges that a disability is related to service, it is important to make sure that the VA also rates the disability correctly and that it assigns the proper effective date.  After all, the purpose of a VA disability compensation claim is to receive compensation, not acknowledgement that a disability is related to service.

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The family members of a disabled veteran are often dependent on the disability benefits that the veteran receives from the Department of Veterans Affairs.  It can be a shock and a financial hardship to the family when those benefits stop upon the death of the veteran.  Sometimes, however, there are benefits available to those family members if they know what to ask for.

The first concern, however,  is whether a family member even qualifies as a veteran’s survivor.  This issue is not always as simple as it would seem.  The list of family members whom the VA will consider as survivors for purposes of VA benefits is a small list.  The surviving spouse or qualifying children of the veteran may be entitled to benefits.  In addition, if the veteran’s parents were dependents of the veteran, they may also be entitled to benefits.  It is unclear, however, who the preferred survivor is in a circumstance where more than one survivor is claiming those benefits.

In order to be recognized as the surviving spouse of a veteran, the spouse must be a person of the opposite sex, married to the veteran for one year prior to the veteran’s death.  The one-year requirement does not apply if the marriage occurred prior to or during the veteran’s military service.  The one-year requirement is also waived if the couple had a child at any time.

In limited circumstances, a person may qualify as a surviving spouse even if no valid marriage occurred.  For example, the VA may recognize a common law marriage in a state which does not recognize common law marriage if there is evidence that the veteran and spouse believed they had a valid marriage.  Common law marriages are difficult to prove to the VA, however, requiring evidence that the couple held themselves out to their community as a married couple.  It is important to note that the VA will only recognize one surviving spouse, so this issue can become very complicated where the veteran has had multiple marriages.

The children of disabled veterans may also be entitled to survivor’s benefits, but only if they meet certain requirements.  To qualify as the surviving child of a veteran, the child must be unmarried and under the age of eighteen. The VA recognizes biological and adopted children equally as survivors.  In addition, the VA will recognize step-children if those children lived with the veteran at the time of the veteran’s death.  Of course, as with all things VA, there are exceptions to this rule.  For instance, if a child is pursuing a course of education, that age limit may be raised to twenty-three.   Another exception is in the case of a child who is incapable of supporting him or herself due to physical or mental disability.  The VA will consider such a child a “helpless child” if he or she became permanently disabled prior to the age of eighteen. 

Any of these survivors may be entitled to survivor benefits, including death pension, accrued benefits which were owed to the veteran at his or her time of death, or dependency and indemnity compensation benefits (commonly called DIC benefits).  Sometimes the issues involved in who qualifies as a veteran’s survivor can be complicated.  If you think you may qualify, contact a professional who can help you determine whether you are entitled to benefits and what evidence is needed to establish your qualifications.

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According to the Merck Manual, peripheral neuropathy is “dysfunction of one or more peripheral nerves.” In lay terms, neuropathy is commonly referred to as ‘nerve damage’ in the extremities. Many veterans who are service connected for other disabilities also suffer from peripheral neuropathy; however, they have never been formally diagnosed with this condition. 

The Merck Manual lists the following symptoms of neuropathy: sensory disturbances, pain, muscle weakness and atrophy, diminished deep tendon reflexes, and vasomotor symptoms. Again, in lay terms the symptoms could simply be numbness and/or tingling, burning pain, lack of sensation, or difficulty distinguishing sharp vs. dull or hot vs. cold in the extremities. It is important to note that the symptoms may be alone or in any combination. 

There are different types of peripheral neuropathy. Mononeuropathy is when only a single nerve is affected. Multiple mononeuropathy is when two or more nerves in separate areas are affected. Polyneuropathy is when many nerves are simultaneously affected, bilaterally symmetrical.

Peripheral neuropathy can be caused by many different conditions, such as diabetes mellitus, alcoholism, trauma, immune disorders, chronic renal insufficiency, thyroid disease, toxic exposure, certain kinds of cancer, etc.

This condition is often undiagnosed or misdiagnosed.  There are many different reasons for this. Common reasons seen in our practice for veterans being undiagnosed include veterans failing to report symptoms because they are intermittent or veterans assuming that symptoms are the result of aging. A more unfortunate reason is that many veterans do not want to be perceived as chronic complainers; hence, they just do not go to the doctor even when they should.  A very common reason for misdiagnosis is failure of the medical professionals, VA and non-VA providers alike, to take the time to properly listen to the veteran’s complaints. Some providers fail to order the necessary tests to determine if their patient has neuropathy, or they fail to consider comorbid conditions. This lack of attention may be due to budget and/or time constraints. Nevertheless, whether neuropathy is undiagnosed or misdiagnosed, the effect is the same in that deserving veterans are missing out on benefits they may be entitled to.

It is essential that veterans seek medical treatment for neuropathy, including undergoing the necessary tests to properly diagnose and rate its severity.  Tests that are frequently used for this purpose include neurological examinations during routine visits, electromyography (EMG) tests, nerve conduction velocity (NCV) tests, and biopsies.

When rating disabilities, the VA often overlooks peripheral neuropathy, especially as secondary to an already service connected condition. A common scenario is the link between diabetes mellitus and peripheral neuropathy. It is estimated in the medical literature that up to 50 percent of individuals with diabetes suffer from neuropathy. Despite the known relationship between diabetes and neuropathy, it is very common for a veteran to undergo a compensation and pension examination for diabetes at the VA, however, the examiner does not evaluate the veteran for neuropathy. In turn, the VA fails to give the veteran a disability rating for this condition.

The important point to take away is that if you suffer from peripheral neuropathy or symptoms of neuropathy, you must be properly diagnosed. If your condition is directly related to military service or can be secondarily connected to another service connected condition, you deserve to be compensated.

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Most claims for Social Security Disability benefits are denied at first level, and end up traveling through the various steps of the disability process. At the first, or “Initial” level, a claim is assigned to an examiner at Social Security. Their job is to collect sufficient information about the claim so that a determination may be made. The examiner does this by requesting medical records, asking the claimant and a third party to fill out forms about the claimant’s impairments, and sometimes sending the claimant to a consultative evaluation.

These evaluations are performed at Social Security’s cost by a doctor of their choosing. Unfortunately, claimants often tell me that the exams are very brief and cursory, and the reports are frequently detrimental to the claim. It is very important for a claimant to know that if possible, Social Security must get the information they need from the claimant’s treating physician (for example, range of motion findings). If Social Security’s need for information can be fulfilled by the treating doctor, a consultative evaluation may be avoided.

Once the examiner has sufficient information for a decision to be made, the file is transferred to a “medical consultant” or a “single decision maker.” A medical consultant is a medical doctor of any number of specialties. (The specialty of the medical consultant who analyzes a particular claim can be found at the bottom of their “Medical Evaluation/Case Analysis” form in the claim file, with the corresponding codes found here: https://secure.ssa.gov/poms.nsf/lnx/0426510090.) The medical consultant will review the claimant’s medical records and make a determination regarding his or her medically documented physical and/or mental limitations. This information will be evaluated in terms of whether an individual with the determined limitations would still have the capacity to do any work.

A “single decision maker” may be an individual with no more than a bachelor’s degree. They are supposed to consult with medical doctors in coming to their conclusions regarding a claimant’s limitations; however, even ALJs often afford much less weight to their findings.

Very frequently, claims are denied at the initial level. At that point, a claimant has sixty days to file an appeal. If the claimant misses the appeal deadline and does not show good cause for doing so, the file will be closed and they will have to begin again with a new application if they still wish to pursue disability benefits. Some examples of good cause for late filing include serious illness preventing the claimant from contacting SSA; death or serious illness in the claimant’s immediate family; incorrect, incomplete, or misleading information from SSA which caused the missed deadline; lack of understanding regarding the requirement to file in a timely manner; or belief that a representative had filed an appeal when the representative did not. More examples can be found here: https://secure.ssa.gov/poms.nsf/lnx/0203101020.

If a claim is denied at the initial level (as most are) and appealed, the claim is then at the “reconsideration” level. The examiner again obtains updated records and forms from the claimant, and forwards the file to the medical consultant or single decision maker for a determination. Far fewer claims are awarded at the reconsideration level than are awarded at the initial level.

If a claim is denied at the reconsideration level, the same sixty day deadline applies for filing an appeal. This second appeal is a “request for hearing.” When SSA receives this appeal, it sends the claim from the lower determinations level to the hearing office, known as the Office of Disability Adjudication and Review, or “ODAR.” At this point, SSA will stop requesting updated records and the claim will wait in line for a hearing. The wait is approximately twelve to eighteen months, and it is important that a claimant or the claimant’s representative continue to provide updated medical records during this time.

At the hearing, an ALJ will hear the claimant’s testimony and will sometimes also take testimony from vocational or medical experts. The ALJs task is to review the medical records in the claimant’s file, take hearing testimony, and make a determination by using SSA’s five step process (discussed in another blog on this site). Oftentimes the judge will not provide a decision at the hearing, but will instead mail out their decision in writing.

This describes the path that a claim takes from the application through to the hearing level. There are additional appeal options if a claim is denied by an ALJ, including review by judges on the Appeals Council, and beyond that, a complaint filed against the Commissioner of the Social Security Administration in federal court.

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Many people suffer back pain but at what point is the back pain severe enough to qualify for Disability Benefits?

Pain in your spine can be the symptom of various conditions. My discussion however, will focus on a specific disorder of the spine, namely Herniated Nucleus Pulposus or commonly referred as herniated disc, slipped disc, or ruptured disc. Disorders of the spine generally produce neck and/or back pain which then affects your mobility, your activities of daily living, and your quality of life. Specifically, a herniated disc is a common disorder of the spine that can occur in any part of the spine. The pain it produces varies greatly based on the size of the herniated disc and in the position.

When someone suffers from a herniated disc or other type of spine disorder, Social Security is more concerned with the damage to the spinal cord itself—neurological impairment. What’s really important about herniated discs is that it can press on the nerve root causing pain that can limit your ability to function.

According to the American Association of Neurological Surgeons:

 Lumbar spine (lower back): Sciatica frequently results from a herniated disc in the lower back. Pressure on one or several nerves that contribute to the sciatic nerve can cause pain, burning, tingling, and numbness that radiates from the buttock into the leg and sometimes into the foot. Usually one side (left or right) is affected. This pain often is described as sharp and electric shock-like. It may be more severe with standing, walking or sitting. Along with leg pain, you may experience low back pain.

 Cervical spine (neck): Symptoms may include dull or sharp pain in the neck or between the shoulder blades, pain that radiates down the arm to the hand or fingers, or numbness or tingling in the shoulder or arm. The pain may increase with certain positions or movements of the neck.

If you suffer from neck or back pain, chances are you also have muscle spasms, stiffness, and loss of mobility to your spine as a result of a herniated disc or other spine problems. It is imperative that you address with your doctor (preferably a specialist) the pain level that you experience, as well as the frequency, intensity and precipitating factors. Make sure to provide as much detail as you possible and whether the pain is exacerbated by sitting, standing, walking, bending, stooping, lifting–even coughing, sneezing, etc. Documenting these symptoms during every visit with your doctor is important because this will help the State Agency or the Judge ascertain the severity of your functional limitations. Particular attention is given to the physical examinations conducted while in the examining room. The exams reveal whether abnormal pressure exist on the nerve root, whether you have significant muscle weakness, whether there’s changes in sensation and reflexes, etc. Some people get better with surgery while others don’t. For others, surgery is not even an option. If you have a spine disorder that has affected your quality of life and your ability to return to work, we will be happy to review your claim.

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Basic VA compensation is designed to compensate the veteran for reduced earning capacity with the maximum compensation for a single veteran without dependents being $2769 per month for a veteran who is rated 100% disabled.  While this amount is certainly helpful to a disabled veteran, we are often approached by veterans for whom this amount falls short of providing the care they need.  In addition, some disabilities affect more than a veteran’s ability to earn.  Recognizing these shortcomings in the compensation system, the VA regulations do provide for compensation above and beyond 100% in specific circumstances.  This type of compensation is called special monthly compensation and is often referred to as SMC.

SMC’s are not based on a disability’s effects on earning but, rather, are designed to compensate a veteran for non-economic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability.  For instance, SMC’s may be available to veterans with disabilities which involve the loss of a limb, loss of vision, loss of hearing, or erectile dysfunction.  It is important to note that while loss of a limb qualifies for SMC, a veteran may also qualify for SMC for loss of use of a limb.  For instance, if a veteran cannot balance or step off of his foot, he may have lost the use of that foot so as to qualify for an SMC.  Similarly, if a veteran cannot pick up objects with his hand or write with a pen, he may qualify for an SMC for loss of use of that hand.

SMC’s are identified by letters ranging from (k) to (s), and while the SMC(k) ratings provide only an additional $99 per month, some of these SMC’s provide substantial support above and beyond the amount awarded for a 100% disability.

 One SMC that we are commonly asked about is entitlement to aid and attendance.  This SMC is available for veterans who, due to their service connected disabilities, need assistance in tending to their daily needs.  Depending on the level of care the veteran needs, this SMC can provide anywhere from an additional $677 per month to an additional $5156 per month.   This is, then, a significant benefit to the veteran and his family.

What does it mean to need aid and attendance?  If the veteran regularly needs someone to help him with dressing and undressing, bathing, taking care of personal hygiene, or making sure that he does not injure himself, he may qualify for this SMC.  It is important to note that the person providing this care does not necessarily have to be a medical professional.  Even if this care is provided by a family member or neighbor, the veteran may still qualify for aid and attendance benefits.  Where the care of a medical professional is required, the veteran may qualify for special aid and attendance benefits which provide increased compensation.

The VA is supposed to consider whether a veteran is entitled to SMC benefits whenever the evidence in his claims file indicates that he is entitled, even if he has never formally requested such benefits.  Sometimes, however, this can be overlooked.   You know your disabilities and your limitations better than anyone else, so it is important that you be aware of what may be available to you so that you can make the VA aware of the benefits to which you are entitled.

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