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Secondary Service Connection & Aggravation

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READ THE BLOG POST on Secondary Service Connection here.

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VIDEO TRANSCRIPTION

Robert: Good afternoon, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick, welcome. With me today is Maura Clancy. Immediately to my left, and to her left is Courtney Ross. Today we’re going to be talking about secondary service connection and aggravation. Generally speaking, these are two different ways to get service-connected disability benefits. But before we get into that, I wanted to update our audience on an important thing that’s happened with the Blue Water Navy veterans. That bill has now passed the House of Veterans Affairs Committee and it’s gone to the full floor of the House and passed the House. That means it is now pending before the Senate, so, if you want to call your United States Senator, please feel free to do that and ask them to push this bill through, that is, support Blue Water Navy veterans. This is probably the most important piece of legislation related to Agent Orange in a long time and our firm fully supports that. The other one, the other thing I’d like to update our audience on is RAMP, the Rapid Appeals Modernization Program. We’ve been talking about RAMP for so long I forget what it stands for. Anyway, VA is continuing to add more and more Regional Offices to handle RAMP claims. That means, more and more people are opting in to RAMP. We don’t have any updated data but we’re going to be doing a program in a couple weeks on RAMP and also on Blue Water Navy veterans and we’ll update you more then. But for now, I just want to let people know that more and more claims are going into RAMP. Let’s turn to the topic at hand which is secondary service connection and if I’m being honest this always confused me a little bit, Maura and Courtney, when I was starting off in this area. Why don’t we, first of all, start with; what is service connection, and then we can transition into what’s secondary service connection. Who’s going to hit service connection first?

Courtney: Sure I can take that.

Robert: Okay, Courtney.

Courtney: Generally speaking, service connection is VA recognizing that a veteran’s disability is due to his or her time in service. On a general level, direct service connection requires a current disability, an in-service event, illness or injury and a medical nexus connecting the current disability with the veteran’s time in service.

Robert: Let’s just use a simple example if we could. Let’s suppose, someone wants to claim service connection for a knee condition. What would they need to show concretely?

Courtney: They would need a diagnosis of the current knee disability. They would need an event in service, so let’s say a veteran had fall in service and there is documented service medical records documenting the fall and complaints of the veteran’s knee pain or symptoms or a diagnosis in service. Then you would need a medical nexus either from a private examiner or possibly a VA examiner, something linking that current disability to the fall in service.

Robert: When we’re saying medical nexus, we’re really saying an opinion that draws a connection between that fall in service and the current disability.

Courtney: Yes exactly.

Robert: For all kinds of services connection, whatever it is, that medical evidence is critical?

Courtney: Yes absolutely.

Robert: Okay, so Maura, what’s secondary service connection?

Maura: Secondary service connection is what you can obtain for a disability that results from a service-connected disability. For instance, going off of the knee example that we were just talking about. If you have a service-connected knee disability but then it causes another disability. Maybe it causes you to walk with an altered gait, it causes you to overcompensate and use your joints in an abnormal way and so you therefore develop a back disability. The back disability is what you could seek secondary service connection for, so a disability that you can get secondary service connection for results from or arises due to an already service-connected condition.

Robert: Sounds complicated.

Maura: It is a little bit complicated but it has all the same elements that Courtney laid out for service connection. The difference is that your nexus element is not to service, it’s to the service-connected condition so you still need to have a current disability, you still need to have the in-service event which in this case would be the service-connected disability and then you need a medical link between the two.

Robert: I guess the theory behind secondary service connection is the VA wants to compensate a veteran for any injury that happens due to service and if that injury results in another injury, the fair thing to do is to compensate for that secondary condition as well. From that sense, from that point of view, it makes a lot of sense. Is the legal burden or the standard that the VA uses, any different between direct service connection and secondary service connection?

Maura: No.

Courtney: Yes. It’s still just at least as likely as not, whether it’s direct service connection or for secondary service connection.

Robert: So, if a veteran has a condition that they think makes another condition worse, can they ask their VA doctor for an opinion?

Courtney: Yes, so VA will complete VA examinations for conditions that the VA is claiming as secondary to other conditions. The examiner will be asked to specifically opine on whether that secondary disability is due to the veteran’s service-connected disability.

Robert: Do we ever use experts to help on those cases?

Courtney: Yes, absolutely. If the veteran is able to get their own medical opinion from a private examiner who can make, again, provide that nexus between the service-connected disability and the secondary disability that you’re trying to link to the service-connected disability, you can absolutely use a private medical opinion.

Robert: Okay, but VA will do what we call a compensation and pension exam, C&P exams for these conditions as well?

Courtney: Yes.

Robert: That comes under the duty to assist?

Courtney: Correct.

Robert: Okay. Are there any presumptions of secondary service connection?

Courtney: Yes, there is. Do you want to take that?

Maura: I was going to say, I’ll give her a break.

Robert: Okay, so then Maura?

Maura: One that comes to mind is for TBIs. There are certain conditions that arise from TBIs that VA presumes to be due to the TBI.

Robert: Let’s just start with TBI is an acronym and I’m sure most people know what it is. But in case they don’t?

Maura: TBI is a traumatic brain injury. Usually, when it’s rated there are vast arrays of symptoms that result from it. A lot of different impairments, but it’s also presumed to cause things such as depression, hormone deficiencies, I think-

Courtney: – Parkinson’s.

Maura: -Parkinson’s symptoms, so if those conditions arise and the veteran is already service-connected for a traumatic brain injury, VA will presume that those are related to the service-connected condition and will grant secondary service connection.

Robert: For those conditions, you would—let me we pause for a minute here. Sorry about that. VA will, in those circumstances presume that the conditions are a result of the TBI and they don’t need a medical nexus opinion, what they need is the diagnosis only.

Maura: Exactly.

Robert: Okay, so this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. We’re talking today, first about the secondary service connection and we’re also talking about aggravation. If you have any questions, please reach out to us on Facebook. Ask your questions and we’ll answer them to the best of our ability. Thanks. Are there some conditions that are more common than others for secondary service connection?

Courtney: Yes, absolutely. I would say one of the most common ones is radiculopathy of the lower extremities secondary to a lower back condition or a lumbar spine condition.  Other ones that you see frequently are if a veteran is service-connected for diabetes, there’s a number of conditions that you’ll see frequently service connected secondary to that diabetes. Peripheral neuropathy is a common one. Retinopathy, kidney conditions, sometimes hypertension, erectile dysfunction. Those are a lot of common ones that you’ll see secondarily service connected to already service-connected diabetes.

Robert: If a veteran has another disability that they think is caused, again I think it’s caused by their service-connected disability, I think it’s important for them to ask the doctor. Is it possible that this is related? If it’s related and the doctor says yes, have him say put that in a note, put that in opinion so you could bring it to the VA and support your claim for secondary service connection.

Courtney: Absolutely.

Robert: Because the way the rating schedule works is that disability will be rated separately from the primary condition. Overall, the combined rating, which is always confusing, we have a combined rating table on our website at cck-law.com. I’m sure Stephen will put it up on the link. But the combined rating will probably increase as a result of both disabilities being service connected so it’s important to try and get those secondary service connection conditions service connected. One of the more challenging things that happens with secondary service connection. This is a sensitive topic but it concerns substance abuse, both alcohol and drug abuse. Can those conditions be, first of all, direct service connected?

Maura: They cannot be directly service connected on their own.

Robert: Because there’s a statute that prevents it.

Maura: Right.

Robert: But can they be secondarily service connected due to a primary service-connected condition?

Maura: Yes, that’s the one of the only ways to get service connected for a substance abuse condition is if, say for example, VA already recognizes that a veteran has post-traumatic stress disorder and they have service connected that. But if there’s evidence that a substance abuse condition arises directly as a result of PTSD or maybe another psychiatric disability then that can be service connected and then therefore any symptoms due to that should be put into the rating. So the veteran should be compensated for that.

Robert: Okay. There’s been a lot of information in the news lately about opioid addiction and I’m thinking potentially for orthopedic injuries or physical injuries. Is that something that could be secondarily service connected if they were originally prescribed for a service-connected condition?

Maura: Yes. So for the same reasons as a different type of substance abuse disorder maybe resulting from a psychiatric disability, if a substance abuse disorder such as an opioid addiction results from a service-connected condition that requires those medications, and if the veteran initially started taking them to treat a service-connected disorder but then it led to a separate substance abuse problem in and of itself, that can be service connected on a secondary basis.

Robert: We just mentioned medication so let’s take that as not a substance abuse problem but a separate issue. Let’s suppose a veteran is prescribed a medication to help with some treatment but in taking that medication, they develop another problem due to the medication that’s been prescribed for the service-connected condition. How far down the ladder can that condition go? In other words, can that disability that arises from the medication taken from a service-connected disability then be service connected?

Maura: I think that it can because it’s the same theory sort of as the underlying purpose of secondary service connection. When VA recognizes that you have one disability but it directly causes a number of other impairments, maybe they didn’t arise until many years after service or maybe they resulted from an event such as taking medication and then you sort of get down the domino line as to the things that are happening. If there’s a direct chain of causation there, then I think absolutely the person should apply for service connection on a secondary basis for those things.

Robert: What about sleep apnea, can that be a secondary service connected condition?

Courtney: Yes and there’s a number of conditions that are usually you’ll find is that specifically service connected secondary to, PTSD is the common one. If you have a case where a veteran has PTSD and has also been diagnosed with sleep apnea you should definitely consider a possible link between those two conditions. Then also other respiratory conditions so sinusitis, rhinitis, a deviated septum. Those conditions too you’d want to look into, see if there’s a possible link with the diagnosed sleep apnea.

Robert: Do we have any questions yet on secondary service connection? Okay is there anything else we wanted to say about secondary service connection?

Courtney: I don’t have anything additional to add. I think next we’re going to get into a different kind of secondary service connection.

Robert: Okay, so let’s move along to that topic, if you give me one second here. We’re going to talk about what we call Allen aggravation. Allen aggravation is a theory of secondary service connections based on a court case called Allen. Who would like explain that?

Courtney: I can take it. As Robert said, Allen aggravation is a different type of secondary service connection. What you’re dealing with here is aggravation instead of causation, meaning, that you have a service-connected disability, you have another disability that’s not service connected. So instead a direct secondary service connection meaning the service-connected disability causes the onset of this other disability. Instead, this other disability that’s not service connected already exists and if the service-connected disability aggravates that condition beyond its natural progression, based on that theory, you can also get secondary service connection. Just to give you an example to give some context to it. If a veteran is service connected for a right knee disability and they have already had another left knee disability that’s not at all related to service. If due to the veteran compensating on the good knee causing an altered gait, possibly causing falls, that other non-service-connected left knee is aggravated and therefore worsened, you can argue for service connection based on that.

Robert: That sounds like a mouthful and I think we have an infographic and there is two layers in this infographic. Let me wait until it’s up on your screen. It’s up on your screen. Along the bottom there, you see Allen aggravation, secondary service connection by aggravation. So what Courtney was talking about was, there’s an in-service injury or event that causes condition Y, which in this case was the right knee-

Courtney:  Right knee.

Robert: -and you apply for benefits and you get service connected for the right knee. The right knee, the Y, worsened Z which is the left knee. Condition Z already was disabling but not due to service. It gets worse and you apply then for aggravation secondary service connection for that left knee and then you can get service connected for that condition. This is frankly one of more complicated ways to get service-connected benefits but we see a lot of examples of this when we’re representing veterans and it happens with back injuries and knee injuries in particular. It can also happen I think with other conditions as well, other orthopedic problems and it can happen in the diabetes context as well. This is something that you want to be mindful of. If you already have a disability and it’s not service connected and the other condition that is service connected makes it worst, you can get disability benefits for that. I know it’s a little convoluted and complicated but hopefully this graphic, which we’ll post on our website, will map it out for you. If you have any questions about it, this will help you figure it out. Do we want to add anything else to Allen aggravation in this discussion, any other points we want to make?

Courtney: I would just add maybe how they rate disability service connected based on aggravate or Allen aggravation.

Robert: That’s a really good point.

Courtney: How they are- VA intends to do it is once they grant service connection for that. In that example, the left knee so the condition that’s been aggravated. What they’ll try to do is establish a baseline level of severity, meaning what was the severity of that left knee condition before the right knee aggravated it and then they’ll establish what the current level of severity is and then attempt to, or they will subtract the difference and assign that rating. However, to assign the baseline level, they’ll need medical evidence to support what that is and if there’s nothing to clearly indicate the baseline level of severity they assume a 0%. Whatever the current level of severity is, is what the veteran should be assigned.

Robert: Okay, so that’s really a point. We’ve seen some decisions where they make up a baseline if you will that doesn’t have support in the record. So if they wanted to say that that knee condition was 10% before and is now 30%. The bottom line would be you’d been entitled to a 20%. But there has to be evidence to support that 10% to begin with. That’s a really good point. Again, this Robert Chisholm. I’m joined by Maura Clancy to my left and Courtney Ross. We’re talking today about secondary service connection, aggravation as a theory of secondary service connection. Then, we’re also going to talk about aggravation as a theory of service connection on a direct basis as well. If you have any questions, please reach out to us on Facebook either now or when you view the video and we’ll certainly respond to the best of our abilities. We’re going to move along to the last topic which is what I’ll call straight up aggravation, aggravation for direct service connection. I’d like to direct this question to Maura, if you want to walk us through what this means and is the graphic still up? The graphic’s still up.

Maura: Perfect. Right now we’re dealing with the upper portion of the graphic which is right under aggravation direct service connection by aggravation. This comes into play when you have a pre-existing condition that was present prior to service. If you enter service with a disability, if everybody knows that you entered service with that disability so there’s no dispute in your records that you had that disability before service, that doesn’t mean that you can never become service connected for that condition because the way to do it is, if there is evidence that that condition was aggravated by your period of military service. For instance, if you have maybe something of a minor back disability before you went to service but then you go through service and worsen it further. It gets worse while you’re there, then you can get service connection for the extent to which it’s aggravated by service.

Robert: We have a question that’s not completely related to the topic but we’ll give it a crack. I have a 10% rating on both knees back in 1999. Shouldn’t that be a separate rating of 10% for each knee, I think this is CUE, thanks for your time. The short answer is it depends on what the evidence shows. I’ve seen it where there’s a 10% for one knee and 0% for the other knee. But if the evidence clearly shows that you have the same symptoms that warrant a 10% for both knees and that evidence was in the record at the time of the 1999 decision. It doesn’t matter what’s in the record now. It matters at the time of the decision was made, what was in the record. But it could be clear and unmistakable error if the evidence is unequivocal. It’s the short answer to that question but thank you for that question. Let’s pick back up and go through what you were saying. I’m sorry, Maura.

Maura: Sure, that’s okay. Just to backtrack just a little bit, so now, instead of talking about aggravation by a service-connected disability, so say something that comes up later in life. You’re service connected for something but then you have something else going on, the service-connected disability aggravates that, that’s in the secondary service connection realm. But now we’re talking about something that pre-existed service. As I said before, the way to get service connection for that is to show that it was aggravated by your period of active duty service.

Robert: Aggravation, I’m sorry, in this context means worsened, correct?

Maura: Right.

Robert: Okay, so you were mentioning that you have a back condition, it has to be noted on the entry exam?

Maura: Correct.

Robert: If it’s noted on the entry exam and then it worsens in service, then you’re eligible for benefits?

Maura: Exactly.

Robert: Now, I’m going to twist the facts a little bit. I’m going to say, you’ve had symptoms before service on your back. But when you went into service it wasn’t noted on your entrance exam. You develop symptoms in service. They may be worse than before. They may not be worse. What happens in that situation?

Maura: That fact pattern is talking about the presumption of soundness which is probably one of the more complicated areas also, at least that’s what I think.

Robert: I agree 100% and I’m glad you’re answering the question and not me.

Maura: If you enlist into service and you have an entrance exam that does not list a back disability. It doesn’t matter that you may have had intermittent back pain before service. The primary thing that’s important here is that your entrance exam says nothing about a back disability or anything about your back. That triggers what’s called the presumption of soundness which is a law that says that if the Army accepts you into service, or another branch of service, and they don’t note that you have that condition, it’s presumed that you did not have it before service. The purpose of that is basically so that claimants aren’t sort of harmed by a retroactive look at the evidence and sort of trying to parse out well, we really think that you had that before. The rule is, if it’s not on your entrance exam or on your enlistment exam, it did not predate service unless VA can provide clear and unmistakable evidence that it preexisted service and that it was not aggravated by service.

Robert: That’s really a tough burden for the VA to overcome.

Maura: Yes, they have to clearly an unmistakably show that you had something before. Like Robert said, that is a very high burden and it’s their burden which is important because we see a lot of times they try to, sometimes, the burden seems as though it’s being applied to the veteran and that’s not the case. It’s VA’s duty to show that before they can make a negative finding in that regard.

Robert: Okay, let’s talk a little bit about VA would rate one of these disabilities, Courtney, where the condition was noted before service and then aggravated by service.

Courtney: Yes, it’s really the same way I was explaining before where they’ll try to determine the baseline of the disability that existed prior to service and the current level of severity of the condition after service. Then they will deduct the difference between the two. In the example you gave before, if the knee was, they determined it was 10% prior service and now it’s 40%, the difference- the rating they would get would be 30%.

Robert: I hope that makes sense, it’s a little confusing. They don’t always have the baseline information that they need especially on these aggravation, direct aggravation cases as well. Can hereditary diseases be considered aggravated by service?

Courtney: Yes, if the condition existed prior to service, it works the same way as what we just went through. If there was a hereditary disease, it existed prior to service. It was aggravated in service or worsened in service, that condition can also be service connected through the aggravation route.

Robert: Okay. We have another question from Paul. I was recently approved for service-connected cold injury to the feet. Subsequently, I have suffered the onset of diabetes with neuropathy which exacerbated the cold feet injury. Is the diabetes a secondary condition?

Maura: I would have to say, and feel free to disagree with me, I’m not sure exactly if the diabetes is a secondary condition. I think it’s possible. But the cold injury is being aggravated by the diabetes but I guess the primary thing here. What do you think about the diabetes?

Courtney: I would say, because the service-connected condition is the cold injury, the cold injury would need to be aggravating either the diabetes or the peripheral neuropathy and it seems more likely that it would be the peripheral neuropathy just based on the condition. You might be able to argue based on that secondary aggravation route for the service connection for the neuropathy, and possibly the diabetes.

Robert: That’s a tough fact pattern to be honest with you so I’m not sure of the exact answer on that. It can’t hurt to always apply for the benefit and if you’re denied, you can appeal it but you would need to get medical evidence to support that theory. Okay, do people get compensation and pension exams for aggravation?

Courtney: Yes, it works the same way we had mentioned about secondary service connection. The focus of the examiner, what the examiner will be asked to answer is whether it was aggravated during their time in service.

Robert: Another point I wanted to make was, what are some of the common conditions that get awarded service connection on an aggravation basis?

Maura: I think one of the more common ones would be hearing loss. I think maybe because there’s generally more data about hearing testing on entry so it’s easier to determine whether there’s anything that’s preexisting. But then, the circumstances of service often aggravate that condition so that could be one of them.

Courtney: Yes and one that I have seen just on various cases is feet condition.

Maura: Yes.

Robert: Flat feet going in to service and that gets aggravated. Okay. And then the other one I would say is sometimes a minimal psychiatric condition is noted on service that gets worse in service, whether it’s depression, anxiety. Usually, PTSD is not diagnosed prior to service so in the rare case, that might be one. Those were some of the things I was thinking of. Is there anything else you wanted to talk about in terms of aggravation?

Courtney: I don’t think I have anything to add.

Robert: Looks like we have one more question so we’ll wait for that. Oh, you’re going to ask it out loud. Shoot.

Female Voice: Can you touch upon service connection and secondary service connection for guardsman and reservists. Are there any differences?

Robert: The short answer is yes, there are differences and under what periods of service they qualify for service connection to begin with. I don’t think I’m capable of reciting without looking at the regulation and the statutes. But generally speaking, if you’re doing an active period of service, you’re called up and you have to go over to Afghanistan or Iraq. You’re going to be covered just like anyone else. It’s the inactive duty periods of service, and I’m not sure I know all the rules associated with that but we will do a presentation separate and apart from this one in the future on the special rules for National Guardsmen and what things can be service connected and during what periods and types of service things can get service connected because those are very specific rules. I don’t know them off the top of my head to be honest, unless either of you do.

Maura: I do not.

Courtney: I don’t.

Robert: Hey, we’re being honest, right? This is complicated stuff. We have one person. We have a couple of people that served that would be able to answer those questions off the top of their head but they’re not here with us today. But we will have a separate presentation on that. Any other questions that we can answer? I think we’re good. Okay. Any last comments on secondary service connection or aggravation?

Maura: I think just to add, definitely be mindful of what doctors are putting in treatment records because sometimes we see these issues raised by the evidence that’s in the file. Sometimes if you’re treating for a particular condition, your doctor might note that you have other things going on as a result of those conditions so definitely be mindful of those things. If- that could be the medical evidence that you need right there to file a claim for benefits for those conditions. And then another thing is that if these secondary claims or aggravation claims are sort of raised by the record, VA is supposed to be looking at them carefully. Don’t be hesitant to put in writing as to what you want VA to do, what you’re claiming and what evidence that you have to sort of make it easier for you to get benefits.

Robert: Courtney, any last thoughts?

Courtney: Yes, I think that covers it. I mean just generally speaking, keeping these theories of service connection in mind when, both as the veteran or as an advocate if you’re reviewing cases, it’s possible to get non-service-connected condition service connected and it’s possible to get conditions that existed prior to service service connected.

Robert: My final thought is, especially as it relates to medications, many of our veterans are on a host of medications and knowing what the side effects of some of those medications are and the potential for secondary problems developing for medication. Always keep those things in mind as well. If you develop other disabilities due to the medication, you can claim those benefits as well. Thank you very much for joining us. Again, if you see this video later and you want to ask us questions, please reach out to us on Facebook. This Robert Chisholm, Maura Clancy and Courtney Ross signing off from cck-law.com. Thank you.

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