VA Disability Benefits for Veterans with Lupus

How a Lawyer Can Help Obtain a Lupus VA Disability Rating

Obtaining Veterans Administration (VA) disability benefits for lupus can be tricky, but not impossible. Lupus is an autoimmune disorder, but it is lumped by the regulations together with VA disability for infectious diseases. While systemic lupus can manifest itself in many different forms and levels of severity, the VA disability percentage for lupus can vary widely. Thus, obtaining a fair lupus VA disability rating can be challenging. Moreover, because there is no direct link between lupus and military duty, it may be difficult to establish that the illness started or worsened during your service.

A Diagnosis is Critical to Obtaining a Lupus VA Disability Rating

The first challenge to obtaining a VA disability rating for lupus is receiving a diagnosis for lupus. However, lupus is associated with many different symptoms that can mimic other infectious diseases or immune disorders. As a result, people with lupus are prone to be misdiagnosed with something else or have the illness dismissed. If you aren’t careful, you might even apply for VA benefits for these other illnesses before your Lupus is diagnosed.

Lupus is an autoimmune disorder. As mentioned above, the VA ratings schedule classifies lupus with infectious diseases. Most of the other infectious diseases, however, are caused by bacteria, viruses, fungi, and parasites that invade your body from the outside.

Autoimmune disorders are different. In autoimmune disorders like rheumatoid arthritis, multiple sclerosis, and lupus, your body’s immune system attacks your tissues from the inside. As a result, symptoms of lupus will change depending on the part of the body your immune system attacks. For example, you may experience joint pain when lupus attacks your connective tissues, and difficulty breathing when it attacks your chest cavity lining.

While lupus is a chronic illness that never goes away completely, it usually cycles through active and dormant periods. During active flare-ups, systemic lupus can cause symptoms ranging from a mild skin rash to severe problems with your brain, nervous system, blood, joints, kidneys, heart, and lungs. Rather than working on a cure for lupus, therapy and medical help focus on the symptoms. Further research and study is currently in progress by the Lupus Foundation of America.

During dormant periods, you might go weeks or months without experiencing any symptoms at all.

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You can see the entire schedule for rating disabilities directly from the VA here.

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There is no test for lupus which complicates diagnosis even more. Doctors combine laboratory tests, such as blood and urine, with a physical examination to determine if you have enough symptoms related to lupus for a diagnosis.

Once you have the diagnosis, you need to submit the medical records relating to that diagnosis to the VA with your disability claim. If you suspect that you may have lupus but your VA doctor or active service military doctor has not diagnosed you, call us. We have doctors on staff that understand the nexus between your symptoms, diagnosis, and military service.

Connecting Lupus with Your Service to Obtain a Lupus VA Disability Rating

To get a VA disability rating for systemic lupus, you must connect your lupus to your military service. There are three ways to connect your service to lupus:

1. Chronic Illness Presumption

The VA presumes that a chronic illness that started within one year after your discharge is connected to your military service. There are many autoimmune disorders among the chronic illnesses covered by this presumption, including lupus. You may connect your illness to your service and obtain a VA disability rating for lupus under this presumption if your diagnosis occurred within one year after your honorable discharge.

If your diagnosis occurred more than one year after your discharge, a VA lawyer may still be able to help you obtain a VA disability rating for lupus. This presumption applies to illnesses that “have become manifest” within one year after your discharge. In other words, your lupus does not need to be diagnosed within one year of your discharge. Rather, your lupus need only appear within one year after you leave the service. It may be possible for you or your VA lawyer to argue that your lupus manifested within one year after discharge, even if it was misdiagnosed and your lupus diagnosis occurred after the time period expired. This is explained in great detail in 38 CFR §3.307

For example, suppose rashes occurred within one year after your discharge. Whether these rashes were diagnosed as lupus or were misdiagnosed as a skin condition, it may be possible to use those medical records to show that your lupus started within the one-year time period. Therefore, you can argue that you are entitled to lupus VA disability.

2. In-service Illness

If your lupus was diagnosed while serving, it is connected to your service. Again, the difficulty arises if you experienced symptoms during service, but the illness was not diagnosed as lupus until after your service ended.

A problem that often arises in VA disability claims for lupus is that military doctors and corpsmen may only see one symptom or flare-up and conclude that the problem is isolated rather than systemic. They might diagnose the cause of your joint pain and swelling as a physical injury and send you away with some ibuprofen but not be around in 4 weeks when it happens again.

The regulations allow disability claims for any disease or illness that “was incurred coincident with service.” The easiest way to establish that you incurred an illness while serving is with medical records showing that a lupus diagnosis was obtained during your service. In some cases, however, a lupus diagnosis did not occur until after discharge. In these instances, it is still possible to show that your illness is connected to your service if you had sufficient manifestations of your chronic illness while serving to establish “chronicity.”

For example, in one case regarding asthma, a veteran was treated for bronchitis and exercise-induced asthma on four occasions while serving. He was diagnosed with chronic asthma after his discharge. The Board of Veterans’ Appeals concluded that the veteran had established adequate chronicity and continuity of symptoms to establish a connection between his service and his chronic asthma.

Establishing chronicity and continuity of symptoms is very case-specific. If you believe your medical records may establish a service connection for your lupus, you should consult a VA benefits attorney to discuss your case.

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3. Illness Worsened by Service

It may be possible to support a VA disability claim by showing that your lupus started prior to your service and your condition was exacerbated while you were serving. As mentioned above, lupus can affect many of the body’s systems, including the lungs, heart, brain, nervous system, skin, joints, and kidneys. In fact, kidney failure is the leading cause of death among those who suffer from lupus. It may be possible, for example, to establish a service connection if you suffered kidney disfunction or kidney failure as a result of your service.

Aside from being a disability in itself, kidney dysfunction or failure can cause other problems, such as high blood pressure or a build-up of fluid around the heart. Thus, under the principle of secondary service-connected disabilities, it may be possible to obtain a VA disability rating for these consequences after a service connection is established for kidney dysfunction.

The difficulty that arises in these kinds of cases is that the VA can deny disability benefits if it believes your illness did not predate your service or that the worsening of your lupus was a natural progression of your illness. You may need evidence, such as medical records and written testimony, from doctors to establish the pre-existing condition and the worsening of your condition while you were serving. In these cases, it is often helpful to have a VA attorney to provide advice about the kinds of evidence that may help and present the proof in the best possible light to the VA.

Increasing Your Lupus VA Disability Rating

The VA establishes a disability rating for lupus according to a fixed schedule. Under this schedule, your disability rating depends on the quantity, frequency, and severity of outbreaks. The three scheduled ratings are:

• 100% VA Rating: Acute, with frequent exacerbations, producing severe impairment of health
• 60% VA Rating: Exacerbations lasting a week or more, two or three times per year
• 10% VA Rating: Exacerbations once or twice a year or symptomatic during the past two years

If your lupus VA disability claim is approved, it will reflect a disability rating on the schedule. However, there are also ways to challenge a VA disability rating.

1. Misapplication of the Schedule

It may be possible to challenge the assigned rating if evidence shows that your lupus outbreaks are more severe or more frequent than the rating reflects. For example, if you receive a 10% disability rating, but your lupus outbreaks occur every two months, you or your VA attorney may be able to get the rating increased to 60% or 100%. This will depend on the severity of the outbreaks and the impact on your health.

2. Separate Evaluations

In a systemic disorder like lupus, the regulations allow for a determination that evaluates the ratings for each condition caused by lupus and then combining those ratings for a final percentage. This is referred to as a “residuals” evaluation. The disability rating should be the greater of the system rating and of the rating of the residual.

For example, in an advanced case where lupus has caused kidney and lung dysfunction, the combination of the residual ratings for kidney problems and lung problems may exceed the system rating for lupus. In this example, the disability rating would be based on the residuals evaluation rather than the system evaluation.

However, be aware that the residuals evaluation uses VA math, which does not simply involve adding the separate residual ratings together to obtain an overall rating. A VA attorney may be able to answer any questions about the differences between system evaluation and residuals evaluation, along with which evaluation most accurately reflects your disability.

Use our VA disability calculator to estimate your
combined VA rating and monthly payment

3. Extra-Schedular Evaluation

In extraordinary cases, a rating may not accurately reflect your symptoms and condition. In these cases, the regulations provide for requesting a special rating evaluation. This is a very unusual request and is only granted in “exceptional or unusual” cases. Typically, these cases require showing that your lupus causes extraordinary interference with your employment, requires frequent hospitalization or involves some other symptoms or conditions not addressed by the schedule.

While these evaluations are unusual, they can happen under the regulations. If you believe your disability rating did not properly account for unusual or unique circumstances in your case, you may benefit from a consultation with a VA lawyer.

What Else Can a VA Lawyer Do to Help with a Lupus VA Disability Rating?

A lupus VA disability rating can face a number of challenges that a VA lawyer can assist with. As mentioned above, the evidence sufficient to show a nexus between a lupus diagnosis and any service-related illnesses may make the difference between establishing a service connection and receiving a disability claim rejection. Similarly, documentation about the timing of the onset of your illness and any complications arising from it may be critical to supporting a VA disability claim.

However, VA lawyers can do more than help you put together the paperwork to submit to the VA. VA lawyers have experience working with veterans and cutting through the VA’s red tape. The VA has any number of procedural grounds that can be used to reject claims without even examining the claims on their merits. These range from the evidentiary requirements to filing deadlines and a VA attorney can help you to navigate all these regulations.

Communicating with the VA is not unlike communicating within the military. Like all federal agencies, the VA speaks in a language that is not always clear and relies on acronyms and abbreviations that may not be apparent to those who have not previously dealt with the institution. A VA lawyer can help you communicate with the VA about your disability claim in a language it understands.

In the event that your VA disability claim is rejected or results in a rating that you believe is too low based on your condition, a VA attorney can discuss the options for appealing the decision with you. Whether the defect in the decision is due to a misunderstanding of the facts or misapplication of the law, there will be options to try to obtain a better decision. Not only can a VA attorney explain the benefits and drawbacks of each option, but we can also help you prepare the evidence and arguments to present your best case.

A VA attorney who understands lupus can help you present your case to the VA and shepherd it through the system no matter where you are located or whether you were deployed. Call Woods and Woods LLC today for a free estimate at (866) 232-5777.

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