This is Part 5 in a series of articles dealing with strategies a veteran can use to refute VA medical exams. In Part 4, I addressed situations where the VA examiner fails to consider your statements about what happened in service. Today, I want to discuss with you what happens when VA denies your increased rating claim based on old medical records. For instance, let’s say VA denied your increased rating claim for PTSD or VA denied your claim for an increased rating for a mental disability. You know that your appeal has been pending for a while and the last time VA evaluated you was 3 years ago. In the last 3 years you know that your symptoms have gotten a lot worse. As a veterans disability lawyer who represents veterans nationwide, I have had the privilege of reviewing thousands of VA medical records. I know that chronic service-connected disabilities often deteriorate over time. And it is not appropriate for VA to rate your present disability based on medical records from several years prior.
Fortunately, the U.S. Court of Appeals for Veterans Claims has addressed this situation. Basically, when you submit evidence indicating that your service-connected disability has gotten materially worse during the pendency of your increased rating claim, this should trigger VA’s duty to provide an updated medical evaluation. The VA’s duty to assist requires that VA provide a contemporaneous medical exam. Now obviously if the issue is service-connection the contemporaneousness is less important. But in increased rating claims, the issue is the present state of the disability, and so getting an up-to-date snapshot of the disability is crucial.
The Court, however, has ruled that the mere passage of time alone is not enough to trigger VA’s duty to provide an updated medical exam. Something more is required. Generally, you will need to submit evidence that there has been a material change in the condition. The best type of evidence is medical records. But in some cases, your lay statements alone may be sufficient to show a material change and thus trigger VA’s duty to provide a new exam.
So, if you find yourself in the midst of an appeal for a higher rating, make certain you submit any evidence, including your own written statements, that demonstrates a material worsening of your condition. It is also important to submit any evidence that speaks to whether the service-connected disability has impacted your ability to work or caused you to be incapable of a gainful occupation. In many cases, evidence of unemployability in the context of an increased rating claim may raise an implied claim for total disability based on individual unemployability (TDIU).