1. The Elements of Service Connection
- What is service connection?
- What are the elements of service connection?
2. ELEMENT 1: A current, diagnosed disability (Chapter 2)
- What does VA consider a disability?
3. Situations where the disability does not have to be current or diagnosed
4. ELEMENT 2: In-service event, injury, or illness
- Examples of an in-service event, injury, or illness
- Does the in-service event, injury, or illness have to have occurred during active duty? On base? In a combat situation?
5. Evidence to show that the event, injury, or illness occurred
- Service records
- Lay statements and buddy statements
6. Situations where veterans do not have to prove the event, injury, illness occurred
- Personal assault or Military Sexual Trauma (MST)
7. VA’s duty to assist in finding evidence of the incident
- VA’s duty to assist in the Rapid Appeals Modernization Program (RAMP) and Appeals Reform
8. ELEMENT 3: Medical Nexus
- What does “nexus” mean in the context of a VA claim?
9. Where to get evidence of a medical nexus
- Do Compensation and Pension Examinations (C&P Exams) establish a medical nexus?
10. How to get a second opinion if you get a negative C&P Exam?
- Can veterans submit scientific articles as nexus evidence?
11. Is every medical opinion given equal weight? What makes a medical opinion stronger?
- “At least as likely as not” or the 50/50 standard
12. Common mistakes VA makes
- Audience Question: Can you submit opinions from a toxicologist?
13. Situations where veterans do not need evidence of a medical nexus
- Chronic conditions (like multiple sclerosis) within a certain timeframe
Jonathan Greene: Good afternoon, I’m Jonathan Greene, I’m an attorney with Chisholm Chisholm and Kilpatrick. With me today is Emma Peterson and Michael Lostritto. We’re going to be talking about service connection and how to establish service connection. So, Mike, what is service connection?
Michael Lostritto: Service connection, generally speaking, means that a veteran’s disability, or potentially death, was incurred in or aggravated by the veteran’s active duty military service.
Jonathan: And what are the elements of establishing service connection on a direct basis.
Michael: So, on a direct basis, the three elements that the veteran will have to meet. The first element would be that the veteran has a current diagnosed disability. The second is that the veteran suffered an in-service, or that there was an in-service event, in-service injury or illness and finally, there need to be what’s called the medical nexus. So, a connection between current diagnosed disability and the in-service event that the veteran suffered.
Jonathan: So, we’re going to be getting into these three elements in some detail, just want to kind of take a quick break and just mentioned that we’re Chisholm Chisholm and Kilpatrick and you can find out more information about the firm and some of the subject matter that we’re discussing at cck-law.com. So, element number 1, current diagnosed disability, what does VA consider a disability Emma?
Emma Peterson: So, a disability is any disease or injury that causes an impairment to your earning capacity. Everything VA looks at really is whether impacts your ability to work and that’s how the rating schedule, your disability percentage is assigned, so everything kind of comes from there. There are some things that aren’t disabilities, per regulation and statute, congenital disabilities, so things that are hereditary or you’re kind of born with those types of defects are not going to make service connected. Things that might be due to your own willful misconduct, things like that but generally speaking, any illness, disability, disease, process that you could think of can be service connected if it’s incurred in or aggravated by your service.
Jonathan: And how does VA determine if it’s current?
Emma: So, there’s a couple of ways, if you have a current diagnosis, that’s great. That’s probably the easiest way to show that you have a disability and that can be from any type of doctor or medical provider, but you don’t actually have to have a diagnosis. As long as you have something that’s impairing your functional ability to work, pain or something like that. As long as it’s impairing that earning capacity, that can be considered a disability for VA purposes.
Jonathan: So, Mike, how can you tell if your disability has been diagnosed?
Michael: Well, the easiest way is you’ll have medical evidence that shows that it’s either treatment, your record from your treatment provider or some other form of medical evidence that clearly shows you have a diagnosis of your condition. If you do not have that, we recommend that you potentially reach out to a treating physician to see if they can provide you with the diagnosis, often times, veterans that we see, they know they have a condition but they don’t have a formaldiagnosis reduced to writing from that provider so, often times, we have success reaching out to that treating provider goal provides with that diagnosis. I supp—
Jonathan: Can a veteran– gives themselves a diagnosis?
Michael: Yes, and that’s an important point because late testimony, generally speaking, is not sufficient to show or establish that the veteran has a particular diagnosis.
Jonathan: So, Emma had mentioned pain, so, if you don’t have a diagnosis but there’s pain, is that something that can be compensable?
Emma: It can be, again, you’d probably need some medical evidence showing how that pain impacts, you know, the working movements of your body or impacts your day to day life in such a way that it impairs your ability to earn a salary or earn a wage, but pain just alone, if it’s not going to do anything – that probably would not be enough for VA purposes for a disability. So, for example, backing up to determine whether you have the current disability, let’s say you break your arm in service. You know, you had pain then but then it’s casted or whatever and it fully heals and now, 20 years later you have no residuals, you just had a fracture back in service. That would not be enough to be considered a current disability. You really have to have something going on now, with you today or during the appeal period from your first filed you claimed in order to be considered current.
Jonathan: And are there situations where it doesn’t have to be current or doesn’t have to be diagnosed. I mean, we had mentioned pain–
Michael: Yes. They’re all situations, particularly Gulf War claims come to mind where there may be conditions where you don’t need to show an actual diagnosis of the condition and just going back to what you’re saying befor, I think it’s important because what I see in my practice is, often times veterans may have a cancer diagnosis or had a cancer diagnosis and for whatever reason the cancer has gone into remission. Unless, there are residuals of the cancer that can currently be rated, a veteran may no longer have a diagnosis of cancer, any longer– it may not be active so unless the claim was pending at that time when the cancer is active. It’s probably not going to be likely that the veteran would be able to get service connected for a cancer that has gone into remission and resolved.
Jonathan: So, I think you can probably tell from some of our discussion that this sounds really simple but, to go out and have a diagnosis that seems like– probably the easiest part of establishing service connection but it actually is more complicated than that and there are constant developments in this area. Redefining what it means to have a diagnosis or compensable condition. Before we move on to element number 2, I just want to pause and say we’re Chisholm Chisholm and Kilpatrick, find us at cck-law.com. So, let’s move on to element number 2, in-service event, injury or illness. Emma, could you give us some examples of an in-service event, injury or disease that might cause a disability?
Emma: Sure, so I think the obvious ones that people probably think of most maybe would be a combat situation. You had to have a physical injury, a gunshot wound or develop a psychological disorder due to that combat, that stressor. That could be an example but it doesn’t have to be during a combat situation. It can be an accident that happens in service, it can be just that the disease itself, let’s say, go back to cancer or diabetes, it just happens to arise while you’re on active duty through just circumstance. As long as it happens during service, an active duty service, and not as a result of your willful misconduct, that can be enough to be the in-service incident or event.
Jonathan: I think that’s important to keep in mind the sort of the incurrence aspect and we have cases where there could be psychological damage by something completely unrelated to military activity but it happened while the veteran was on active duty. So, does it have to have occurred on active duty, Mike?
Michael: Generally speaking, anything that occurs from the time the veteran enters active duty service until the day of discharge from activity duty service, you know, that will count as an active duty occurrence or in-service occurrence rather. Again, going back to Emma’s point, so long as it’s not the result to the veteran’s own willful misconduct and so Jon, I think you brought an important point, I think sometimes veteran’s think that they have to show that the event or activity in service was related to some type of military activity but that’s not necessarily the case, that isn’t the case, and it’s certainly not the case that the veteran has to be in combat in order for those– that particular in-service event to be subject to compensation to do service connection.
Jonathan: And that’s something that I had to learn about when I first got into this is you always think of these combat situations, these more obvious situations but often times it’s not the case that these events or injuries did occur. Not in combat situations and simply while there was active duty going on. So, how do you show that the event, injury, or illness occurred?
Michael. So, the best evidence I would say is service treatment records– service records that show that the event happened in service. That’s kind of a smoking gun that’s the best in my opinion, the best evidence you can have but as you can imagine, a lot of cases, we don’t have that. So, I think the use of lay testimony– lay statements can be particularly effective if it’s coupled with not only the veteran’s lay testimony but with buddy statements. So some of the cases that we see here involve maybe an in-service back injury or the veteran fell and injured his or her knees and so it’s possible that that incident may not have been documented so it’s not in the service treatment records but if the veteran can provide maybe 2 corroborating buddy statements in addition to their own statement that says, I was doing such and such and I fell and I hurt my back and there are lay testimonies corroborated by two other veterans that served with that individual, I think that can be certainly powerful evidence to help prove the in-service event.
Jonathan: So, this– we had talked before– you had mentioned that a veteran can’t give himself a diagnosis, is this something that a veteran is credible to document and provide testimony?
Michael: Generally speaking, so long as they can give testimony as to things that they can observe so, circumstances that they’re in, non-medically related activities, diagnosis is a separate as we’re speaking about but yes this is something that generally speaking, a veteran can provide competent testimony.
Jonathan: Okay, are there situations, Emma, where you don’t have to show that a specific event occurred?
Emma: There are a couple examples of a situations where you don’t have to prove it happened necessarily to you. So the easiest example of that would be a presumption service connection for people exposed to, let’s say, Agent Orange for people that have boots on the ground in Vietnam. Those veterans if they can show that they were there at that prescribed time period don’t have to actually show they were exposed to Agent Orange. We’re going to presume they were and then they can get service connected for any number of conditions that are listed in VA regulations. So that’s sort of one situation in which you don’t have to actually prove, this event happened. Another situation can be very difficult to prove that it happened and unfortunately it does happen, are personal assaults or military sexual traumas. In most of those cases, you’re not going to have a very detailed record of what occurred service members but whatever reasons, you might not want to report the incident itself so you might not have it in your service records or service medical records but in that case, you can look outside the record, you can look to other things that were going on in the veteran’s life. Lay evidence from family and friends regarding their state of mind and personality can be very helpful. So, anything sort of showing, what happened to the person afterwards can be used to help show the event occurred.
Jonathan: And in that situation, service records might not show that the event occurred but they can show things like a decline in performance.
Jonathan: That could be used as a marker of that. What is VA’s responsibility in helping get the evidence of the in-service event? Do you want to take that one, Mike?
Michael: Sure, so generally speaking, VA has a duty to assist the veteran, to establish their claim that includes a duty to locate and try to reasonably obtain different records that a veteran may think exists that aren’t associated with the claims file. So often times, VA will ask the veteran to identify any particular records that he or she may think exist that could help substantiate the claim on appeal and then VA really has a duty to go out and obtain those records if they can and so if VA has failed to take those steps, certainly I think something veterans want to keep in mind is that they can argue that VA needs to go ahead and do that before they deny the claim.
Jonathan: And I think that there are going to be some changes to the claims process in the near future and some changes to the way that the duty to assist works and where it applies. We’re not really going to talk about that today but you can find– we have done Facebook lives on the Rapid Appeals Modernization Program and appeals reform generally that you can find. Also, on our website at www.cck-law.com. So, just wrapping up the second element or actually let’s go ahead and move on to element number 3: medical nexus. So, what does nexus mean in this context? Let’s cue Emma– Emma has worked extensively helping some of our medical expert providers find and establish that nexus for our clients.
Emma: So, nexus is the link from your current disability, the disease that’s going on now to whatever happened in service. So, it can’t just be that something happened then and you have something going on now. We need to have a link, sort of causation between the two in order to get service connection. So that can be done the easiest way or the best way is through medical evidence so if your treating provider, your doctor, psychologist, clinical social worker whoever that you know, you see and treat with is able to say, “Okay, no this happened in service and this is going on now.” In my medical opinion the two were linked and it just has to be at least as likely as not. That’s the standard that VA uses. That’s a 50-50 standard so it’s not to a reasonable degree of medical certainty or some of these higher standards, you know, you might have heard of in the past. It’s just at least as likely as not the two things are related.
Jonathan: So, Emma had mentioned the treating doctors and we have discussed in Facebook live C&P exams so, where do you get this nexus? So, we’ve talked about the duty to assist, the duty to assist also involves getting a medical opinion where necessary in form of a Compensation and Pension examination. Do C&P exams establish nexus?
Jonathan: Diplomatic answer.
Michael: Yes. It’s one particular avenue veterans can pursue to try to establish nexus for the claim. So as Jon was saying, as part of VA’s duty to assist, they have an obligation to schedule a veteran for an exam to see whether, at least in the VA examiner’s opinion, we– current diagnosed condition is linked to an event or condition or injury that happened in service. And so, C&P exams, if veteran’s schedule for one, we highly recommend that you attend the exam in the first instance but it’s one particular avenue a veteran can pursue and should pursue.
Jonathan: So, you might get lucky and fortunate that the link is established through a C&P exam. If it is not, what would you advise with the options?
Emma: So, I think that you definitely should talk it over with your VSO or accredit agent, your attorney, if you’re working with one or if not, I certainly think that you should consider maybe in bringing your report if you have access to it to your own doctor. You can get a second opinion. VA is not required to get you a second opinion. Once they’ve gotten you an exam that’s adequate for their purposes, meaning it’s done by a right medical professional and it’s done according to their standards then that’s probably the only exam they’re going to get you. But you can bring it elsewhere and you can try to get a second opinion or you can write to VA and explain why you think that exam, maybe, wasn’t portraying an accurate picture. I think that, you know, a common regret we hear from some of our clients is that they didn’t spend enough time with the C&P examiner, it was short or they didn’t get an opportunity say, everything they wanted to say so I think it’s really important to talk it over with your VSO, your rep, your attorney, and make a plan going in. How are you going to make sure that you tell that examiner everything you want them to hear about how your disability affects you and why is this service—but there’s a couple of which you can go after you get a negative C&P exam.
Jonathan: And so, we’re talking about getting opinions from your treating physician, getting outside medical opinion and C&P exams, can you submit scientific research articles to support a nexus claim?
Michael: You can submit them but I will question that if they are general in nature so if it doesn’t relate as I would imagine most don’t specifically to the circumstances and the particular facts of the veteran’s case, then VA might find that they don’t hold all that much probative value. They can be used though I think to help a veteran establish a need to obtain a C&P exam. Often times, we will see veterans that are denied the opportunity to attend a VA examination. So submitting scientific articles, submitting medical articles rather can be enough just to get the veteran in the door into a VA examination. But like I said, often times, unfortunately, the medical literature out there won’t be specific to the specific facts of the veteran so we often see that VA will find that they don’t hold all that much probative value in terms of specifically finding a nexus in the veteran’s case.
Jonathan: We’re going to discuss the probative value of these different opinions and one thing that we often see with outside medical opinions is they will– the medical providers will get articles supporting their findings and their conclusions and attach those to their medical opinion which could boost its probative weight. So, is every medical opinion given equal way, I think that the obvious answer is no, so, what are some ways that a medical opinion will be found to have more probative weight than other Emma?
Emma: Sure. So, it needs to be or ideally, it should be written by someone that it’s their specialty field. So, if you’re having heart issues, I would not recommend going to your pediatrist and asking them for their opinion on whether your own your heart problem started in service but, your general PCP is fine probably for most issues but if it’s a specialized issue, there’s no harm in going to someone that’s in that field and you ideally want them to be a licensed person in whatever genre it is, not saying it has to be a doctor but you don’t want just someone who is interested in this field and giving you their lay opinion. It should be someone that really has expertise to talk about it and then it needs to be really tailored to that person, to that veteran. You don’t want your doctor just writing a letter saying, “I heard of cases where this could happen.” That’s just too vague and too wishy-washy.
So, if you have the opportunity to get your doctor or medical provider a copy of your service records that would be the ideal situation. They can then review what happened to you and hopefully, they know what’s happening to you now and can make that link and that would make it even stronger. And again, using the standard, using VA’s language is very helpful, it’s what they understand, what they’re used to so, you know, explaining to your doctor, “Hey, it’s just 50-50,” it doesn’t have to be medically certain and that can be tricky because, you know, lot of doctors are trained to think that way. They’re not trained to think in the 50-50 standard but at least explaining to your doctor, “Hey, you only have to find its 50% likely if you do find it, can be very helpful.”
Jonathan: That’s right. We encourage the experts that we work with to actually say in their opinions. It is like at least as likely as not and as I mentioned, Emma has a lot of experience working with outside medical experts who, unfortunately, are often necessary to shift the way in favor of our clients. So, that means as Emma had said, 50-50, so the benefit of the doubt goes to the veteran so everything is equal then, theoretically, then the veteran should win so that’s why that at least as likely as not language is so important.
Michael: And Jon, if I may, it’s really the rationale and the reasoning that supports either whether it be a treating physician or an expert’s opinion that gives the opinion it’s probative weight. So, while a brief letter from your treating physician that states a conclusion, in such and such conditions with the service is better than nothing. We would really be encouraged to have a little supporting evidence there if you can get it because the weight and the probative value of the opinion comes from the reasoning that’s included and not so much, just the conclusion that the physician reaches.
Jonathan: And that is something that we often find is lacking in the VA generated medical opinions that we see so it is important to work with either your treating or an outside medical expert to encourage them to include adequate rationale supporter conclusions.
Michael: And for the same reasons why these particular things strengthen any expert report or treating physician’s report that you may want to submit. Similarly, in review of the C&P exam that may be unfavorable if you can find that VA did not do these things, you can argue against it for those reasons you showed that particular examiner is either inadequate or, certainly doesn’t have as much probative weight as maybe an exam that you do submit yourself.
Jonathan: And then, what are some of the classic go-to’s for VA to say, “Nope, that’s not caused by this, it’s actually due to,” you know there’s a few, I would say classics, that we often see in things like C&P exams. Do you want to talk about some of those?
Emma: Sure. So, I think classics, that offered denials are lack of time, you know, service was 20-30 years ago, there’s no way its links now but that’s not necessarily a good basis for denying someone service connection. There can be perfectly reasonable explanation for why there’s no treatment in between then and now. Some other things that are classic have to do with C&P examiners saying for example, in orthopedic conditions just the natural aging process. That’s something that we see all the time. They have 3 slip disks and all kinds of neurological problems and it’s just your average degenerative condition. So, that’s something that can be frustrating I think for veterans to see but, know you’re not alone and having receive that opinion and maybe take something like that to someone that you see regularly for those conditions.
Some other things that that, you know, especially now, we’re seeing more and more and I think it can actually end up working with veteran’s favor is obesity. Obesity is on the rise, it’s pretty common, unfortunately, with the number of our veteran clients and so, you’ll get a C&P examiner blaming obesity for the cause of the disability but, and I think we have a Facebook live in this, you can check it out if you’re interested. Obesity can serve as a link, you know, if it’s really to something due to service so, but those are serves some of the common go-to reasons why we see C&P examiners saying, “No, guys, no service connection.”
Jonathan: I think we often see it, you know, you had mentioned that the natural aging process, they also will look at, well, the—for orthopedic condition that veteran has worked in a job that is labor intensive. It’s due to that, it’s not due to all these hard landings in service or a lung condition is due to smoking, that’s a difficult one to overcome. But yes, so, we take a brief moment to address a question from our audience. John is asking, “Can you submit opinions from say, a toxicologist during the appeals process?”
Emma: Yes. 100% yes. I’m not sure for what reason but, that’s your own reason but absolutely, if they are a licensed or I’m not sure how toxicologists are licensed but if that’s their field of expertise and it relates your claim and it’s going to help show a nexus between what happened in service and what’s happening to you now, absolutely. There is no limit on what you can submit as evidence, it’s really more what is VA going to find helpful to your claim so you can submit anything. Submit that toxicology report, submit it along with the lay statement explaining why it’s important to your claim and then it might be helpful.
Jonathan: Yes, like that’s the case. Emma just said why it’s important to the claims, as long as it relevant to the claims supportive, go ahead and submit it. I think that you can submit anything that is going to boost the claim itself, you know, there’s a certain strategy to win and what to submit but, by all means, yes. So, let’s finish up and address, what are the situations where the veteran doesn’t need to go out and get that medical nexus opinion we had talked about presumption?
Michael: Yes. So, there are certain situations where VA recognizes, as a matter of law that a certain condition the veteran may have is necessarily linked to an event or situation in service. I think the most commonly known, commonly used presumption is Vietnam service, you know, for veteran has service boots on the ground in Vietnam during the applicable time period and then they’re presumed as a matter of law to have been exposed to Agent Orange and so, if veteran has any one of a number conditions that VA recognizes is automatically linked to exposure to Agent Orange then really that prevents the veteran or rather that means the veteran does not need to go out and get a nexus opinion on their own because that legal presumption is there for them to use as the nexus.
Jonathan: And so, for the Vietnam service if you have one of those presumptive link conditions that then and there, it gives you elements 2 and 3.
Jonathan: Do you have anything to add?
Emma: Yes. Some other ones that maybe aren’t as well-known are chronic conditions so VA has a whole list of disabilities they consider to be chronic and if that disability manifest in service or it manifest within a certain couple of years, typically it’s one year after service but there are other couple disabilities, MS is one that comes to mind, if it manifests so many years after service, symptoms are there a certain severity then that can be a service connected without having to show a nexus so they’re just going to presume that those disabilities are service connected and I think that veterans are always known if they can take advantage of that list of disabilities but that’s in the regulations, I think if anyone’s interested, its 3.309 if you want to take a look at those listed chronic disabilities.
Jonathan: Emma is exactly right. So, for MS, it’s a big one because unlike most chronic conditions, its within a year of service, MS is, I believe, within 7 years of service. So, if you do suffer from MS, it’s important to kind of look at when the symptoms began to manifest and have your advocate help you with that. So, if we don’t have any other further questions, I think we can wrap up. Thank you for tuning in. Again, I’m Jonathan Greene with Emma Peterson and Michael Lostritto from Chisholm Chisholm and Kilpatrick. We’ll see you next time.