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The Elements of Service Connection

1. The Elements of Service Connection

  • What is service connection?
  • What are the elements of service connection?

2. ELEMENT 1: A current disability 

  • What does VA consider a disability?

3. Do you need a diagnosis to get service connection?

4. ELEMENT 2: In-service event, injury, or illness

5. Does the in-service event, injury, or illness have to have occurred during active duty? On base? In a combat situation?

6. Evidence to show that the event, injury, or illness occurred

7. Do lay statements submitted to VA need to be notarized or certified?

8. VA’s Duty to Assist (Legacy & Appeals Modernization, or AMA)

9. ELEMENT 3: Medical Nexus

  • What does “nexus” mean in the context of a VA claim?

10. Standard of proof at VA: “at least as likely as not” 

11. What makes a medical opinion stronger evidence in VA’s eyes? Who counts as a medical expert?

12. Are C&P examiners always subject experts?

13. Are there things that make it more difficult to link to an in-service event, injury, or illness? What can veterans do to help in these situations?

14. Are there conditions that do not require a medical nexus?

Video Transcript.

Jenna Zellmer: Good afternoon. My name is Jenna Zellmer. Welcome to CCK Facebook Live. I’m an Attorney here at Chisholm Chisholm & Kilpatrick. I practice Veterans Benefits Appeals. With me today are Alyse Galoski and Mike Lostritto. They are both also Attorneys at CCK. And we all represent veterans and their quest for benefits.

So today, we’re going to be talking about the Elements of Service Connection. Service connection is generally one of the first things that veterans need to prove in order to obtain benefits whether those are monetary benefits or simply seeking healthcare out of VA Medical Center. So, establishing the elements of service connection is something that most veterans will have to go through at some point in their appeal process. And so we want to break it down a little bit.

So Alyse, let’s talk about just basically what is service connection?

Alyse Galoski: Sure. So service connection is the designation that VA gives you once they recognize that your injury or your disability, your condition, is related to service. And that is what you need to get, as Jenna said, compensation or benefits for health services.

Jenna: And Mike, what does a veteran need to prove in order to get VA to recognize that their disability is related to service?

Mike Lostritto: So generally speaking, for service connection, there are three elements, if you will, that the veteran must show. The first is that the veteran has a current disability. The second element is that there is some in-service incurrence or event or disease or injury that occurred. And the final and the third element is [inaudible] what we call a nexus. And that’s basically a link between the veteran’s current disability and the event that occurred during service.

Jenna: Okay. Good. So that’s a good road map. So let’s break that down a little bit, and focus just on the first element that you mentioned that you need a current disability. So Alyse, what does VA consider a disability?

Alyse: So a disability is any injury or a disease that impairs your ability to earn wages, or it affects your earning capacity. Everything in the VA benefit system, it goes back to how much money you can make, how your earning capacity is affected. So once you do have that service connection, once you do have a disability that impairs your ability to earn wages, then you’re actually rated based on how severe that impairment is.

Jenna: Great. And so can that can be a physical disability. It can be mental. It can kind of run the gamut, right?

Alyse: Yes.

Jenna: And Mike, how does VA determine whether or not you have a current disability? Because that’s really key, right, to have something currently wrong with you?

Mike: Yes. This is an important concept. So a veteran must have at least some time of filing the claim, a current condition, or disability. Meaning that if the veteran had a disability, say 10 years ago, and by the time the veteran filed the claim, it’s 100% completely resolved or no residual effects whatsoever, then VA may not find that the veteran has a current condition or disability that can be service connected. So a veteran will typically be able to determine whether he or she has a current disability through medical records, [inaudible] records that– or maybe a statement from the veteran’s treating doctor that really shows that there is a current condition that the veteran has that can then be service connected.

Jenna: Great. And then that’s really important because sometimes you can– a veteran will have broken an arm in service or have something that is on a surface seems resolved, but they’re still having residuals of that disability. And so you can be service connected for residuals of seemingly resolved injury as long as there is still some sort of impairment in earning capacity related to that so if you continue to have leg pain due to the previously healed leg– broken leg. Does that make sense?

Mike: Yes. And–

Jenna: Does that sound right?

Mike: — I think the situation also arises where veterans are applying for disability benefits based on maybe a cancer that they’ve had. The veteran will be able to receive a disability rating for the cancer while it’s active. But even if the cancer grows into remission and the veteran has residual effects of the cancer, those residual effects will still be able to be service connected and rated for VA compensation purposes.

Jenna: Great. I just want to remind everyone. Today, we’re talking about service connection and what elements veterans need to prove. If you have any questions or comments as we discuss the elements, please feel free to leave a comment on the comment box below. You can also visit our website at cck-law.com. We’re going to be linking some articles with a little bit more information on the comments to our blog.

So Alyse, we’ve been talking about what is a current disability. And I often find that VA will deny this element, will say that the veteran doesn’t need this element, because they don’t have a diagnosis. So, can you talk a little bit about whether veterans need a diagnosis; what’s the difference between diagnosis and disability?

Alyse: Sure. So, it’s certainly easier to be recognized as having a current disability if you have a diagnosis. I don’t think we can argue that it’s definitely easier especially to show that it’s current if you have a current diagnosis. But you do not have to have a diagnosis under the law. There is a recent case called Saunders v. Wilkie. It’s a federal service case that has actually outlined that a disability does not need to be formally diagnosed. All it needs to do is impair someone’s earning capacity. So, a good example of that is pain. If you have pain that is impairing your earning capacity but it doesn’t have an underlying diagnosis, Saunders v. Wilkie recognizes that that can still constitute a disability for service connection purposes. Another example is what we call a MUCMI. These are for the Gulf War veterans.

Jenna: You’re going to try to say it or not?

Alyse: It is a Medically Unexplained Chronic Multi-Symptom Illness.  So that’s why we call them MUCMI, because it is a mouthful for sure. This is really what happens when you have either a diagnosed condition wherein there’s an unknown ideology or you don’t have a condition that really is diagnosable. But all science is pointing to the fact that it’s related to your service. And I believe we do have something on our website that outlines this in much more detail. But again, this is for Gulf War veterans.

Jenna: Yes. And I think the takeaway is just if you don’t have a diagnosis, it’s not the end of the road. It’s obviously, as you said, easier once you have a diagnosis. And if you do have– if you can get a diagnosis from your treating physician, that’s always probably the easiest route. But there are ways to prove this first element of service connection without diagnosis.

Mike: And I think another thing to add, too, is that if a veteran knows they have a condition that just haven’t received a formal diagnosis in writing, they can actually request that VA conduct an examination. The threshold for obtaining a VA examination is rather low under the law. And so if a veteran lays out perhaps on a lay statement that they’re having this symptom, they have this condition, and they request an examination, VA, typically, as part of the veteran’s claim, will obtain an examination. And hopefully the veteran can receive a diagnosis as part of that process.

Jenna: Yes. And we have– we’ve done other Facebook Lives, and we have other blogs that kind of go into more detail about VA’s duty to assist parents. And then also what those examinations once VA orders one, what those examinations are like, and why they’re so important. And so we’ll link that as well on the comments. There is a lot going on here. So we’re just going to kind of do the surface level for service connection. And then if you have any– want to dig deeper, we’ll provide you guys that information in the comments.

So that’s the first element of service connection. You need to have a current disability not necessarily a diagnosis, but something that is impairing your earning capacity.

So, let’s move on to the second element. And that’s in-service event, injury, or illness. Mike, can you give us an example of what in-event injury or disease in service would be?

Mike: Sure. So, some common examples that we see here in our practice involve anything ranging from a veteran who may injure their ankle or back lifting something or moving during service. If it’s a psychiatric disability claim, a stressor. So perhaps, the veteran is incumbent though he or she doesn’t necessarily have to be. But perhaps, there’s some stressful instance or occurrence within service. That’s an in-service occurrence for the psychiatric condition. In addition to that, there is exposure. So, exposure to herbicide agents and Agent Orange is a very common example of an incurrence or in-service event.

Jenna: Good. And I think we have some other information about exposures that we’ll link to as well. Because exposure– it’s a whole other–

Mike: It’s a whole–

Jenna: — presentation.

Mike: Yes. It’s a whole topic unto itself.

Jenna: So, you mentioned that sometimes veteran could be in combat and that injury or event could be related to combat. But Alyse, does it necessarily have to be in combat? What if a veteran is just serving on active duty? He’s on base playing some basketball with his fellow servicemen?

Alyse: Yes. So, it doesn’t have to relate to your military service. You just have to be in active duty when it happens. So, the basketball example is a great example of it. You’re serving active duty. You’re playing basketball. You hurt your knee. And now, you have chronic knee problems. That is something that could be service connected even though it doesn’t relate to your actual military duties. You are on active duty. You have to be active duty. But you were on active duty and that counts. Another thing is if you have a disease that you develop while you’re in service. Even if it’s not necessarily related to your military exposure or anything but you happened to develop it in service while you’re active duty, again, that can be considered a in-service disease.

Jenna: And that’s probably if you develop something while in service that is diagnosed as a chronic condition, that’s probably the easiest way to prove, because you have both the diagnoses and the in-service event right there. And there is really no question that it’s related to service, because it happened to you when you’re in service. But be it– doesn’t have to be– I think a lot of our veterans or even not our veterans but even family members or friends that I know are hesitant to file a claim, because they don’t think that they would get it, because they weren’t in combat. Or maybe they were just– they never deployed overseas. And so they don’t really think that they could get anything. But if you’re on active duty anywhere and you injure yourself, that is definitely something that could be an in-service event or an injury. And so it’s really important to– if you’re having trouble or you think that you want to apply for service connection but you’re not sure if you qualify, it’s really important to reach out to your service organization, a private attorney. There’s lots of people out there who can help you and kind of provide some information about whether or not you meet the elements of service connection.

So how do you show– we talked about combat stressors, herbicide exposure. We talked about just orthopedic injuries from carrying heavy loads, playing basketball. How do you document that that actually occurred in service?

Mike: So, I think maybe the most straightforward way is if your service medical records actually show that there is some type of event or injury that occurred during service. I mean that’s, now, you have your service records. It’s listed there. That’s obviously the most straightforward way I think. Oftentimes ‘though, there won’t be anything reported in the service records particularly maybe in PTSD cases or military sexual trauma cases. There won’t necessarily be a report in the records. So just because there is no actual physical evidence in the records doesn’t mean that that’s negative evidence that can be used against your claim. So what the veteran can typically do is supplement the claim with a lay statement or a buddy statement to help corroborate that this in-service event or accident or injury actually did occur.

Jenna: Great. So, I guess it makes sense. So, are there any situations where you don’t have to prove that that injury or event incurred? Are there any situations kind of I guess where the second element is assumed to have occurred without you having to prove it?

Alyse: Yes. So, we touched upon it briefly. Exposures are one of them if there’s a presumption related to your exposure. So, a common example is someone who is a boots-on-the-ground veteran who served in Vietnam. They’re presumed to have been exposed to Agent Orange. Your exposure to Agent Orange is your in-service occurrence. So just by showing that you served in that particular place at that particular time, they’re going to presume that you’re exposed to that chemical.

Jenna: Great. And Mike, you mentioned before, sometimes, there are not going to be records about personal assaults or military sexual assault, because there is a stigma about reporting things that happen like that right after they happened. And so even if– besides lay statements, are there any other markers that a veteran could point to to demonstrate that even though it’s not clearly stated that this happened in service, there may be some things like indicate that something might have gone wrong?

Mike: Sure. So we see this pretty frequently, because, as you said, oftentimes, veterans won’t report for a number of reasons. And so if there is an indication that the performance of the veteran during service fluctuated– so say the veteran was stellar up into a certain point and then their performance suddenly kind of dropped off a cliff or in a reverse even– all of a sudden, they became kind of a model soldier I suppose for lack of a better word, that change in behavior can really show or indicate that something happened. And so you don’t necessarily need to show that the assault was actually documented. But changes in behavior can help lead to us being able to show or the veteran being able to show that that actually did occur.

Jenna: Yes. And I think it’s important to remember VA always has to apply the benefit of the doubt in these situations. And so just because there isn’t a smoking gun, something that clearly states that something occurred in service, VA needs to consider all of those surrounding markers and things like that.

Mike: And another thing that we can do is supplement the record with buddy statements or with statements from maybe the veteran’s spouse. And these statements can just detail this is what the veteran was like prior to service. This is what the veteran is like having returned from service. And that just goes again to the change in behavior. And it can help us establish that element of service connection.

Jenna: Great. So we have a question from our Facebook Live audience. This is from Roman. He asks, “What if I get hurt while on active duty. But I was on leave?” I think that this is almost similar to our basketball playing example earlier. If you are on active duty, anything that happens during that time is related to service. I think we’ve had cases where a veteran will be on active duty and he has come home for leave. That’s kind of when his or her symptoms kind of start manifesting, because they’re home from leave. And they kind of have time to take a breath and decompress and then realize that something is wrong with them. And so it’s different if you are on active duty for a two-year period. And then you separate from service. And then while you separate, something happens. That would not be an active duty. And so that wouldn’t satisfy the second element of an in-service event or injury. But Mike, do you agree that if you’re on active duty, you’re on active duty?

Mike: Yes. And I think generally speaking if you’re on the base or if you are off the base, those things typically don’t matter to veterans on active duty. Then whatever occurs is fair game in terms of service connection.

Alyse: Yes. It’s definitely something that you might run into some roadblocks. And as I mentioned before, that’s why it’s really important to have experience, people helping you with your claims whether those are accredited service organizations or attorneys. But it’s just something that you really want to make sure you’re laying up the history of and when exactly, if you do remember when exactly it happened to demonstrate that it happened on active duty.

Jenna: So that was from Roman. Thank you so much. And then he actually has a follow-up question. So, Mike, do you– or Alyse, either one of you. I think Mike has been talking for a while. Alyse, do statements need to be certified or notarized or anything?

Alyse: So lay statements don’t need to be. They can even just be in the form of a letter sent into the VA. If you are going to file what’s called an affidavit which is a sworn statement, that needs to be notarized. But you don’t need to do that. You can just send in a lay statement or have somebody who knows you, somebody who has seen your symptoms who can observe your symptoms. They can submit in a lay statement. It’s really just a letter explaining what’s going on. You don’t need any type of notarization.

Jenna: Yes. And I think we actually do have a whole Facebook Live and some blog posts about evidence and what types of evidence are required. And we touched on that. So sometimes, veterans do want to submit an affidavit, because they think that it holds a little bit more weight, because it’s a sworn statement. And that’s definitely your prerogative. But VA doesn’t require anything like that.

Alyse: Right. VA has to consider all lay statements. And there’s nothing in the rules that say an affidavit is necessarily more probative than a general lay statement.

Jenna: So we’ve been talking actually a lot about evidence. And this actually is a good transition. And I think we mentioned a little bit before in relation to exams. But Mike, what is VA’s responsibility in helping you kind of find evidence that would meet the second element of in-service event?

Mike: So generally speaking, VA has what’s known as a duty to assist. And this really requires at least in the Legacy system, the old system for adjudicating claims, VA has a wide duty to make reasonable efforts to help assist the veteran in obtaining the evidence necessary to support the claim. And so that means that if a veteran identifies certain medical records or request an examination, in many instances, VA has a duty to obtain those records or provide an adequate examination to evaluate the veteran’s condition. And so going back to the elements here of service connection, as we were speaking about previously, say that the veteran identifies service records that were not previously associated with the veteran’s file that could shed some light into maybe an in-service accident or injury that occurred, VA should, under the duty to assist, go out and obtain those records. And as we were speaking about the first element previously obtaining a diagnosis for disability if the veteran lays out in a statement some of the symptoms that he or she is experiencing and requests that an examination be scheduled to evaluate the condition and perhaps provide a diagnosis, then VA using it’s duty to assist will go out and hopefully obtain an adequate examination to evaluate the condition.

Jenna: Great. So, we have another question from our audience. This is very exciting. Thank you everyone. So, John asks, “Is there any presumption for certain jobs for service connection such as if you are an Airborne Infantry with bad knees that would happen much sooner in life than would normally happen?” So Alyse, do you want to touch on that?

Alyse: As far as I know, most presumptions really have to do more with what you’re exposed to certain chemicals–

Jenna: Or chronic conditions.

Alyse: — or chronic conditions. But they’re not really related to your jobs within the military at least. I don’t know of any–

Mike: No. I believe that to be true.

Alyse: But that’s also– that’s a type of evidence that even though there’s no presumption, aside from the evidence that you want to submit, that is favorable to your claim. And so if you– we’re going to talk about medical nexus in a second. And I think that’s a really great transition. Because if you get a medical doctor to say that the reason why your knees are so much worse when you’re younger than they should be, it’s because that you were jumping out of [inaudible] all the time. That’s perfect. So VA needs to consider your duties and service, your MLS, and consider whether or not– whatever you were doing in service has now contributed to your current disabilities. So unfortunately, there’s no presumption. But it is really good evidence that you can use to try to get service connection.

 

Jenna: So yes. Let’s move on to medical nexus. So, we talked about a current disability. We’ve talked about an in-service event. So, what’s the final piece of this puzzle? Alyse, what’s medical nexus?

 

Alyse: So, nexus is really your link. It’s your link between your current disability and what’s going on with you right now and your in-service event. Basically, what was going on when you were serving?

Jenna: Okay. And I think we’ve touched on this a little bit but Mike, where can we get a medical nexus?

Mike: There are a few different places. If a veteran has requested or has had a Compensation and Pension examination, which is basically just VA examination, it’s possible that the VA could on its own, provide a nexus between the current disability and the in-service event, although likely, at least what I’ve seen in my practice is that’s not typically the case. So, really, it’s incumbent upon the veteran to go out and be able to provide kind of supplemental opinions in the form of either a treating physician or if the represented by some type of representation or maybe on their own, some type of expert opinion. And really, the idea is to, as Alyse said, provide a link, a medical link between what occurred in service and kind of current disability that the veterans experiencing now.

Jenna: I think it’s important, so at the standard of standard proof is as likely as not. That’s kind of what the medical nexus is supposed to be geared towards. If you get a VA examination the examiner is going to say, “Well, it’s as likely as not that the veterans, let’s take John’s example, the veterans parachute jumping, contributed or to his current disability.” Sometimes the VA examiners like Mike said, won’t give a favorable opinion. They’ll say you know it, it’s not as likely as not. Maybe they’ll say, “He has– his knee disabilities are related to normal age like wear and tear aging.” If that’s the case if you don’t have a favorable opinion from the VA physician, at least what is a veteran’s kind of recourse there?

Alyse: You have a couple of options. You can decide to go and get a second opinion from a private Doctor or clinician. Usually, it’s really important that when you are going to a private physician if you can try and figure out what that negative nexus said, that so they can maybe even address some of those, some of the gaps, and potentially help you when you actually do submit that evidence to the VA. Another thing that you can do is you can challenge the VA exam that you were given the compensation pension exam as being inadequate for some way. You can challenge it for having an inadequate rationale, or maybe they got some facts wrong, and that’s not, unfortunately, that does happen. You can challenge that let the VA know that you need a new exam and point to specific inadequacies with that original exam that you got.

Jenna: Yeah, and I think this dovetails really nicely with another question from Roman, who asks, “How do you know what the examiner wrote in the notes?” Obviously, in order to challenge a VA examiner’s negative opinion, you need to know what he or she wrote. How do we go about getting that?

Mike: This is a really great question because a veteran can request to obtain a copy of the CMP examination, and I really encourage them to do so. That way they can take a look at what exactly was provided as the CMP examiners opinion. They can see if the information that they relayed was accurately, jotted down on to the CMP form or the opinion, and as Alyse said, I would strongly recommend that if they see something that they find inadequate to point it out to the VA, send in a piece of correspondence detailing why they think that the CMP opinion doesn’t really capture what the current state of their condition is. You’re more than able to bring that examination with you say if you’re treating physician will provide an opinion for you to have them review it, or an expert opinion for the expert to review it, so that they can not only provide an opinion but address any inadequacies that were provided by VB examiner.

Jenna: I think it’s really important because if you get your own examination, that examiner can kind of really go point by point if it’s more helpful for an examiner to do that then for a veteran in certain situations. If a VA examiner is saying that you served the wrong dates, or that you didn’t have any treatment or didn’t have any pain for a certain amount of time, and that’s factually wrong, then you as a veteran are competent to say that that’s wrong and the VA shouldn’t rely on it. But if it gets into the more medical expertise about why a certain condition developed, then that’s why it’s really important to have your own expert who can refute that and I think that’s going to carry a lot more weight for VA than if you were to just say, “I don’t think this examiner who presumably went to medical school or nursing school or some sort of professional training is right.”

That brings us to our next question, which is from Alexa. Thank you, Alexa. “Can you define what kind of doctor would qualify as an expert?” Going back to what I was mentioning, these doctors have specific training. Presumably, audiologist, doctor who specializes in hearing loss probably wouldn’t be the best expert to apply it on whether or not your knees are related to surface, right? Alyse, you want to talk about that a little?

Alyse: Yeah. I think if there’s not really one definition for it. I think it really does depend on what the condition you have is, right? So, just to use Jenna’s example, if you are trying to get an orthopedic condition, for example, service connected, more likely than not, you don’t want to go to your psychologist for an opinion on that. That’s just not their field of study. But if you might be able to, in a lot of cases go to your general practitioner because they have a wider scope of areas that they might have knowledge in. I think it’s always, of course, better especially with issues like psych and more specialized issues to see if you do especially go to a specialist to get an opinion from them, you’re really more going to run though into problems less likely if you’re going to a GP, and more likely, if you’re going to somebody who specializes in a totally different type of field than what your injury is.

Jenna: I think a lot of times, veterans will challenge VA examinations that are conducted by people who aren’t doctors. So, Mike, can you talk a little bit about that?

Mike: Sure. And I think where this question really goes to is what makes an opinion strong and probative in VA’s eyes. I think really when we look to an expert’s opinion or a VA examiner’s opinion, we like to see that there is fully supporting rationale to support the conclusion that’s ultimately drawn in the case. So really what that means is that either the VA examiner or maybe the treating physician that’s providing an opinion doesn’t just state the conclusion, they have several reasons. Maybe they’ve reviewed, hopefully, they reviewed the entire record or at least the pertinent parts of the record, and that as Alyse said, that they have some background experience in that particular area. Doesn’t necessarily have to be a doctor or even someone necessarily in the same field, but they do have to have some type of core competencies or education level that really underlies the opinion and therefore gives it probative value in VA’s eyes.

Jenna: For example, nurse practitioners, licensed clinical social worker sometimes depending on the issue, things like that. Even though they’re not medical doctors, they are still competent and still have expertise in a certain field, and so VA will often use those types of experts.

Mike: Sometimes it’s not a matter of– you might have two different opinions. One’s a VA opinion that’s a negative opinion in your case, unfortunately, and an opinion from maybe a private physician. Oftentimes it comes down to showing that the opinion that you’ve obtained, that you’ve submitted is more reliable, is more probative than the VA opinion that’s been obtained in the case. Maybe you do that by showing that your treating doctor has seen you for 20 years and knows your medical history. Maybe they’re a specialist in this area, whereas the VA examiner, despite the fact that they may be competent to opine in this area is not as reliable because they don’t have the specialty that your opinion has, or that the doctor that provided your opinion has. In a lot of cases, it comes down to kind of a battle of the VA opinions or V opinions.

Jenna: Great. We have another question from Roman and it’s, “Are CMP doctors subject experts?”

Alyse: Not always.

Alyse: That’s something that you should look into because sometimes VA doesn’t match you with the perfect doctor. That is something that you can challenge for certain, even as absurd as the example I gave before going to wanting to need disability service connected and there’s a psychologist that’s opining on your condition, that happens. You should, you can see right on the bottom of that CMP exam what kind of doctor, what their qualifications are. You should look into that. That might be something that’s worth exploring.

Jenna: Yeah. We’ve actually had cases where we have asked for a doctor’s qualifications. That’s something VA is required to provide via the Freedom of Information Act. If you have a representative either an accredited rep or an attorney, and there’s a suggestion that the doctor that performed your examination does not have any subject matter expertise in this particular disability, then that’s definitely something you want to pursue. Ask a VA for the doctor’s resume, his CV, what kind of education and training that doctor has had because if they haven’t ever had any training on, for example, traumatic brain injuries, they’ve only ever done orthopedic conditions, they’re probably not supposed to be giving an opinion on whether or not your TBI is related to service.

Mike: Yeah. I think just another thing, I think that we should drive home and you mentioned it earlier, is the legal standard, and it’s at least as likely as not. What that really means is that all the veteran is required to show is that the condition is at least as likely as not related to service, meaning 50/50. This isn’t a, at ponderance of the evidence standard that’s used in other legal disputes where a veteran may have to or the claim may have to show that they’re entitled based on 51% or more. It’s this is really 50/50 and I think in formulating any opinion, the medical examiner should use that standard and rely on that standard. If they don’t or the VA examiner doesn’t, then I think it’s incumbent upon the veteran or the veteran’s representative to point that out as being inadequate.

Jenna: Great. We have another question from Alexa. The question is, “Who would win out then if you have multiple experts once that says something that has– that requires like a highly specialized area versus a VA doctor or a PA?” That’s a good question. A lot of times we have physician’s office assistants, rendering these opinions. Alyse, you want to take that?

Alyse: Yeah. I think there’s a couple of things to point out in this question. The first thing is at the end of the day, it’s going to depend on who the– what the issue is, but also what the VA finds. There’s not going to be really necessarily a straight up answer to this question. It’s up to the VA, whether it’s the regional office or the Board to make that fact-finding, to make that probative decision. But some things that can help you certainly if you have a more specialized doctor, and if it’s a certain condition that requires a specialized doctor, but also is the rationale. If you have a specialized doctor, he could be the best doctor in the world but if he or she says, “She has PTSD, and that’s it.” That’s just not going to– frankly, it’s not going to get you anywhere. The Board or the regional office will say, “There’s no rationale and we have a rationale from a VA examiner here that says they don’t have PTSD.” So really what you need in that case is a well thought out rationale. A doctor who knows you, who has seen you for a while. A doctor who can explain why they think you have the condition that you have. That’s really reverting back to your service records, to your personal records and to your current medical records. So as far as your specialty, it’s definitely important element, but it’s not the only element.

Jenna: Yeah. I think that’s a really good takeaway is that expertise is important, but it only gets you so far. Alyse mentioned that there are some conditions that do require a certain expert. I mentioned TBI earlier. VA requires certain doctors with specific titles and specific training to make opinions on that, but for your run of the mill, orthopedic conditions, VA is going to use nurse practitioners or going to use physician’s assistants. You could have the chief of orthopedic surgery give you an opinion but if it’s not– doesn’t have a rationale, then at the end of the day, VA is probably going to go with its opinion.

Mike: Yep, that’s a great point.

Alyse: Yeah. Then we do we have a Facebook Live on CMP examinations. But I think one very important thing about examinations is private or CMP, they need to contain enough information for the Board to make a judgment without having to go back to their own medical judgment. They need to be very informative. They need to give the Board enough information so that they’re not making assumptions or making their own medical jumps.

Jenna: We have another question now from Chris. Thanks, Chris. “What if for six years VA has denied your condition, denied service connection, and now they approve that same condition. How can I go back and ask for back pay for the other denials?” This is a little bit going to depend on some other facts, but essentially, we do have I think some Facebook Lives and some blogs about effective dates, and kind of how pending claims work. I think six years is enough time that it could be the same claim. You could file a claim six years ago, have gotten a rating decision, have gotten a statement the case and finally have gotten to the Board at now, and the Board awards the claim. In that situation would go all the way back that six years. But, if he is kept denying you over and over again and you never appealed it, then that decision becomes final and there’s a little bit of a difference in effective dates and retroactive benefits. Does anybody else have anything to add?

Mike: No. I think that hits it nicely. It’s kind of a whole topic onto its own but the only thing that I would just say is if you get a decision that grants service connection and grants an effective date that you disagree with, appeal the decision and specifically state that you disagree with the effective date that’s been assigned. You want to keep the claim open as long as possible. Otherwise, if it’s finalized decision, your option becomes much more limited in how you can go about trying to get the original effective date that you deserve.

Jenna: Yeah. I think you hit on it when you said, “Be sure to you disagree specifically with the effective date assigned.” Assuming everything goes well, and you prove all these claims, and you actually do get service connection, the next step is to get a rating. I think Alyse mentioned this earlier, ratings are based on your impairment and earning capacity. Once you get service connection, VA is going to assign you an effective date, and they’re also going to assign you a rating. If you disagree with either of those things, you need to be very specific about that you’re disagreeing with both because they’re two separate elements, and so VA treats them differently. You can’t just send off a very general notice of disagreement. They’re probably going to think that you just want a higher rating and you want to make sure that you’re telling them what exactly you want in that notice of disagreement.

Mike: Yes.

Alyse: Yeah, that’s a good point.

Jenna: Great. We talked a lot about medical opinions and we talked a lot about what happens when VA offers a negative nexus opinion. Why would VA examiner do that? Are there certain things that make it more difficult to establish and access? Why that would make a VA examiner kind of less likely to give you that favorable decision? Opinion?

Mike: Sure, yeah. What I see oftentimes is if the veteran entered service, having a pre-existing condition of some kind, in many instances it’s more difficult for the veteran to show that the condition is related specifically to the Veteran Service. Now, of course, it’s generally speaking, there are a lot of ways around that. In that particular instance, I would recommend that the veteran go back and obtain a copy of his or her entrance examination, take a look and see what specifically was listed on the entrance examination in terms of what disabilities were recognized or written down, as having been shown at the time of entrance. There are certain presumptions, it’s a complicated topic. We don’t– we want credit to it here. What more or less if a veteran has an entrance examination that doesn’t show that the condition is stated at the time of entry, then will be entitled to certain presumptions that the condition was actually related to service.

Jenna: Yeah, presumption is the word of the day, yeah.

Alyse: I think another example is what I’ll call an unhealthy habit or an intervening habit. For example, if a veteran is claiming a long disability based on something that they might have been exposed to during service, but they’ve also been a smoker for 20 years or so, you’re going to have a hard time proving service connection if in between the time you were exposed to that smoking. If you have some type of psychiatric disability, and you’re also– but you’ve also been an opioid user for an amount of time. We see it also with hepatitis if you were an intravenous drug user. It doesn’t always have to be unhealthy it could just be noise exposure. If you were exposed to noise in service, but you also worked on a construction site as your job after service, again, that’s intervening something that might be hard to overcome.

Jenna: Is there anything that we can do to help, that veterans can do to help show nexus in these situations where there might be potential other causes besides service?

Alyse: Well, to go back to what we were saying, we’ve been speaking of, medical opinions can really help you here if you can get, especially if you have a treating physician who knows you, who knows your history well. That can really benefit you when you have these competing illnesses or competing causes.

Mike: Yeah, and don’t forget that a veteran can have a condition related to service but then have kind of an outside non-service-related condition that maybe further contributes to that. Military service has to be the sole cause, it’s a contributing cause, and so I think it’s important to remember that. In addition, again, it’s a separate topic, but there’s a concept called secondary service connection, which basically means that if a veteran has a service-connected condition that causes or aggravates a non-service-connected condition, then that non-service-connected condition can also be linked to service. There are a few different ways that a veteran can go about trying to establish his or her claim.

Jenna: Great. I know we’ve talked about this before, we’ve mentioned earlier presumptions that the name of the game. Are there any situations where a veteran wouldn’t need this medical nexus opinion? What kind of presumptions are there in place there? Anybody want to?

Mike: Sure, so I think the common one that comes to my mind is Agent Orange exposure. For Vietnam veterans or Thailand veterans, there are certain presumptions in place that are essentially a shortcut or help establish that nexus without having to actually show specific medical evidence linking the veteran’s condition to the veteran’s exposure and service. Those presumptions exist to really provide that shortcut for the veteran.

Jenna: Yeah, I think Alyse mentioned this earlier in-service element portion, but for Agent Orange exposure, if you’re in Vietnam, and you have a certain condition, there’s a whole list of them including diabetes, CAD, which is coronary artery disease, a lot of other things. And not only proves, VA has not only conceded that you are exposed, but they have also conceded that if you have one of these conditions within a certain time period, and that’s a certain level of severity, then you also get that Nexus. That’s really helpful, I think to Vietnam veterans with certain conditions because it would be almost impossible to prove one, that they were actually exposed and then two that, whatever they were– whatever they currently have was is due to Agent Orange.

Mike:  Yes.

Jenna: Okay, great. I think that’s the end of my questions for you guys. Thank you for joining us today. Thank you to all of our people who wrote in, John and Roman and Chris and Alexa, and thank you, everyone, else for tuning in. I hope you guys tune in next week, we’ll have another interesting topic.

 

 

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