5 Ways to Establish VA Service Connection
Maura: Hello everyone. Happy Thursday. Thank you for joining us today on our Facebook Live discussion. We are here at Chisholm Chisholm & Kilpatrick. My name is Maura Clancy. I’m here with Mike Lostritto and Kayla D’Onofrio. And today, we’re going to be talking about 5 Ways to Establish Service Connection for a Disability for VA Purposes. Before we get started into the topics that we have prepared, we just want to make a note as we always do that if you have any questions or comments that you would like to communicate to us during the broadcast, please feel free to post those in the comments feed next to this video. We do try to get back to comments and questions to the best of our ability and that includes by posting additional references and sending links to additional blog posts or articles that we think would be helpful and responsive to your question. So definitely feel free to utilize that. We also have a number of resources on our website at cck-law.com. We’ve talked about service connection a lot. It’s a very crucial component of what we do here and how veterans can obtain disability benefits. So I know there are a number of resources, videos, blog posts, etcetera, things like that on the website. So definitely feel free to check those out.
So we’re going to get started first by talking about what service connection is generally. So if anyone’s watching with any VA disability benefits claims experience or if you’re a disabled veteran yourself, you probably are familiar with what service connection means but just to be sure that we’re all on the same page, service connection is the way that VA recognizes that a disability is related to military service in some way and once service connection is granted, then a veteran can become eligible to receive benefits for that disability. So, service connection, generally speaking, requires you to fulfill three elements. There’s three things that are needed to prove entitlement to service connection.
Generally speaking, the first is a current disability. We’re going to talk more about what that entails but there needs to be a current issue that you’re having that VA can look at and determine whether it’s related to service, so that’s the first element. The second is that there needs to be some kind of in-service illness, injury, event, incurrence – something that would have prompted or affected the current disability that you have. And then the third element is that there needs to be some kind of nexus between your current disability and the in-service event or incurrence or in-service notation of a problem. So basically, a current problem, a problem in service and a link between the two. We’re gonna break those down a little bit as we talk about the different ways to get service connection.
So let’s start with probably the most simple avenue for service connection and I’m gonna start with you Kayla, direct service connection. How do you establish direct service connection and when you talk about that, can you also talk about a little more about what the current disability element means?
Kayla: Yeah. Like you said, direct service connection does require you to meet those three elements. The current disability, the in-service event or occurrence of whatever may have caused disability as well as the medical nexus linking the two. So a current disability for VA purposes is an injury or a disease that is a result of your military service or what’s occurred in the line of duty. It’s worth noting that you don’t actually have to have diagnosis of a disability for service connection to be granted. It’s definitely the easiest way to get service connection, it’s the most straightforward and it’s something that VA will most easily recognize but there are certain ways to get around that so to speak. The first way is through Gulf War illnesses, so under 38 CFR 3.317, you can have an undiagnosed illness related to exposures if you served in the Persian Gulf War. Another way you can do it is through chronic pain, there’s a new case law, it’s been the last couple of year that came out, it’s called Saunders which basically says you can have chronic pain and as long as that pain results in some sort of functional limitation and it causes you to have some sort of a decrease in your earning capacity, you can get that disability service-connected as well.
Maura: All really good points. And I just want to add before we get into the in-service element part of service connection, Kayla brings up a good point that the easiest way to get or the easiest way to prove the current disability element is definitely if you have a diagnosis. If you are consulting with a doctor about a medical issue that you’re having, it is helpful to ask if you can be diagnosed with something if you’re planning on seeking benefits for that condition because the ways that you can get service connection without a diagnosis by just showing that you have a current disability, VA doesn’t always get those right and they commonly misunderstand them. The Saunders case that Kayla mentioned is a case that says that pain alone can be potentially a disability for VA purposes benefits even if it’s undiagnosed but that case is relatively recent and VA hasn’t really enhanced the sophistication of all of their adjudications to reflect that understanding. We still see denials plainly that say if pain isn’t diagnosed, it can’t be service-connected and that’s just plain wrong pursuant to that case. And then also, the Gulf War illnesses, we’ve talked about this in other videos, that’s another legal area that’s pretty tricky so prone to VA mistakes. But yeah, that’s definitely something to keep in mind, diagnosis is the best but it’s not the end of the story if you don’t have one.
Kayla: Yeah. It’s not 100% necessary.
Kayla: There’s also some disabilities that you can’t get service-connected. So if you have a congenital or a hereditary defect, that’s not something you’re able to get service-connected unfortunately, personality disorders are another thing that you can’t get service-connected under VA’s rules. Alternatively, if you had an isolated incident in service, maybe you fell and hurt your knee but it resolved and you don’t have any residual pain or any residual effects of that condition, it’s not something that’s able to get service-connected. So it has to be occurring and chronic. It’s not something that, common cold again for example, that something that resolved in service is not gonna be able to get service-connected.
Maura: And we have cases where there are some illnesses that occur in service but resolved and sometimes, depending on when the claim was filed, VA might grant service connection. We’ve seen some cases where a person might be service-connected for something like malaria but there are no residual. So eventually, even though VA will grant service connection, they’re just gonna reduce the rating to 0 and it won’t really be very impactful when you take into account the whole disability picture.
Maura: So it’s a good point. Can we move now, Kayla to talking a little bit more about what is meant by that second element of direct service connection which talks about the in-service event or injury?
Kayla: Yeah. So the second part is showing VA that something happened to you in service that caused a disability. So the easiest way that you can prove that is through your service records if you received treatment for that disability in service and there are medical records to support that, that’s the most straightforward way. Personal records can also be helpful if they maybe show that you were involved in a certain type of training where you’re more prone to a different sort of injury. So personal records or sometimes, they note like restricted duties or even note that you were injured, maybe fell doing something during a training exercise. Service record, in general, are probably the easiest way that you’re gonna be able to show the in-service occurrence. But if that’s not available or doesn’t exist, lay evidence can also be helpful so if you can testify to something that happened but also if there’s another service member who witnessed whatever happened to you that can sort of testify on your behalf and say that they witnessed this happen, that can be convincing evidence as well.
Maura: Great. And VA has a duty to assist veterans in preparing and gathering evidence in support of their claims.
Maura: So, is there any way that the duty to assist might help a veteran who’s trying to substantiate an in-service event?
Kayla: Mm-hmm. If a veteran recognizes and identifies to VA that there are some records that are not already of record or not already part of their file and they tell VA that they need those records to be able to substantiate their claim, VA’s duty is to assist the veteran in obtaining them so they should make reasonable effort to obtain those record on the veteran’s behalf and if they’re not available or they can’t get them, they do have to let the veteran know so that they can also make the necessary attempts to get them.
Maura: Okay, great. And how would a veteran go about getting VA to fulfill its duty to assist? Is that as simple as just telling VA, “I don’t have my service records in front of me but you should get them and look through them and try to figure what’s documented in there”?
Kayla: It can be. It’s not always as straightforward but that is probably the easiest way to do it.
Maura: Okay. So it’s helpful to just ask VA to look through certain records, maybe identify what you think might be included in those records and at least sort of force them into starting to work on the case.
Kayla: Yeah. You should always ask, it never hurts to ask.
Maura: Great. And finally, can you talk a little bit about the third element of service connection which is that link between the current disability and the in-service event, we call it a medical nexus. Can you talk about what a nexus is and how veterans can and should go about getting evidence to support that part of the process?
Kayla: Yeah. So there’s a number of different ways a veteran can go about doing this. They can get an opinion from their treating doctor and basically, this medical nexus is saying this condition is at least as likely as not caused by the veteran service or something that happened to them in service. So going to treating a doctor and seeing if they can provide that opinion, maybe they’re familiar with the veteran disability, they’re familiar with the veteran’s service and they can provide that sort of opinion. Alternatively, you could get an outside expert who is very familiar with that sort of condition or maybe is familiar with certain types of exposures for example who can link certain conditions to different sort of chemicals that you may have been exposed to in service. If those are not available, you can try to obtain a VA exam or you can ask VA to evaluate you through a compensation and pension examination.
Maura: In under what circumstances is VA required to give you a compensation and pension exam? So if a veteran can’t get medical nexus evidence on their own but things that they should at least be seen by a VA examiner, to see if that would be helpful for their claim, how should they go about approaching that?
Kayla: It should be pretty straightforward. So, getting an examination is part of VA’s duty to assist but there are certain things that need to happen before VA is actually required to fulfill that duty to assist. So, the veteran does have to show that they have a current disability that can’t just kind of pull something out of thin air and say, “I have this. I want it related to service, I want an exam.” So there has to be medical evidence of the disability exists. There also has to be evidence that something happened to them in service, so again, having those service records or sometimes lay testimony explaining what happened to them in service or what they have been exposed to and some indication that the two are linked. Indication is supposed to be a pretty low threshold for VA to actually be triggered to do this. Sometimes it’s not, according to VA. But basically, there’s a number of ways that you can do this depending on what type of disability you’re claiming and how you’re claiming it’s related to service. Sometimes, just continuous treatment in the record from the time that you were treated in service until present day can be enough to show an indication that they’re related. Other times, it’s not as straightforward, you can try to get medical articles, look for journals that may link the condition to something that happened to you in service. So there’s a number of ways that you can kind of go about reaching that indication threshold.
Maura: Great. That’s all really helpful because as Kayla said, VA does not always appreciate the low standard that needs to be met to get a VA exam. So sometimes, if a veteran simply requests a VA exam, VA will get one. And in other cases, a veteran might provide some information, even more context and VA might say, “Well, that’s not enough to show that there’s any indication of a relationship and therefore, we’re not gonna expand our resources and then get an exam.” So as Kayla said, anything that you can think to cite to, explain, contextualize why you think the current condition that you have is related to service is very helpful if you’re trying to get VA to give you an exam.
Maura: And are there situations where medical evidence is not required to prove a nexus?
Kayla: Yes. One of the other types of service connection which we’re gonna dive into a little bit more is presumptive service connection and for those, VA will presume that your condition is related to something that happened in service depending on the type of presumption that you’re claiming. And in those cases, you don’t need the medical evidence– the medical nexus linking the two.
Maura: Okay. Great. So, Mike, let’s turn to you to talk about what presumptive service connection is and the circumstances under which there’s a presumption that certain conditions are related to service that removes that medical nexus element of the claim for a veteran. Can you explain just generally what presumptions are and why they were established under certain circumstances in VA law?
Mike: Sure. Basically, a presumption is a legal concept where VA will assume that certain elements of service connection, as Kayla just outlined, have been met and satisfied even if the veteran otherwise can’t really establish that those elements have been met to the submission of evidence. And so VA will presume that certain elements are met to satisfy service connection and then grant the claim based on that alone. The idea behind creating presumptions falls in line with VA’s overall, I guess, directive to create a veteran-friendly system. And so, I think it’s a recognition that sometimes it’s not possible, it’s simply not possible for the veteran to obtain the type of information that would be needed to prove certain elements of certain types of claims. And so, presumptions in certain situations have been established to assist veterans in making it easier to prove those particular types of claims.
Maura: Okay. Can you give us some examples when we talk about what presumptions are in place? Can you tell us a couple that maybe you have in mind where VA has affirmatively created that presumption to relieve the burden of proof that a veteran has to fulfill to be successful in getting service connection?
Mike: Sure. I think we can think of it in terms of the different elements that a veteran would ordinarily have to satisfy and how a presumption might work into satisfying that or those elements is that particularly with respect to the nexus element and the in-service occurrence elements. In certain situations, VA will presume that those elements are met. And so an example of a presumption of an in-service occurrence would be the presumption of exposure and this routinely comes up and maybe the most common example is veterans who served in the Republic of Vietnam. And so, for veterans who served in the Republic of Vietnam as just one example, they will be presumed if they stepped foot in country, that they were exposed to certain herbicide agents. And so that element, that in-service element of the claim does not need to be shown in that situation because VA will presume that the veteran was exposed to herbicide agents and therefore satisfied the in-service occurrence element of proving service connection.
Another example of maybe a different type of presumption would be a presumption regarding nexus. And so, to kind of continue on with our example for Vietnam veterans, there are certain conditions that if the veteran can show that they were exposed to herbicide agents, VA will presume essentially that that condition that they currently have is linked to their in-service occurrence or their in-service exposure. They won’t have to show through the submission of medical evidence that their condition was actually linked to any type of exposure. So, a common example is a veteran is diagnosed with diabetes and they served in Vietnam. And so, in that scenario, there are two presumptions really that kind of work together to help a veteran more easily establish service connection. Number one, because they served [inaudible] in Vietnam, they’ll be subject to the presumption of in-service exposure to herbicide agents and also because diabetes is on the list of presumed conditions linked to exposure to herbicide agents, VA will presume that the nexus is there as well. They still have to show that they have a current disability but the other two elements of service of connection will be presumed for purposes of establishing service connection.
Maura: Great. That’s really helpful to explain the difference between the types of presumptions that VA uses. So as Mike explained, there’s the presumption of exposure that arises in some cases and that’s helpful for the second element of service connection but then there’s also the separate presumption of service connection which takes the place of the nexus element which we referred to as the third element. So, it can get a little bit technical but I think the overarching point is that the presumption is really a good thing because it reduces the ability or takes away the requirement that the veteran provide proof of certain thing that’s an issue, so that’s always a good thing if that can be applicable in a claim.
Mike: Yeah, absolutely. It’s a really powerful tool really to use as a shortcut if you will. I think of it as that, to help veterans prove their case even if they might not have the underlying evidence to otherwise prove their case. Another example I know, we talked about Vietnam a lot but Persian Gulf war veterans. There’s a presumption for veterans who served in the Southwest Asia theater of war from August 2, 1990, up and through to the present day. They will be presumed to have been exposed to certain environmental toxins just by their service in those locations. And so, that is something that veterans who served during that specific time frame and for veterans who served in those particular places, they won’t have to go about proving necessarily that they were exposed to environmental toxins. It’ll already be established in their claim.
Mike: And then there are number of other ones. We could go on, there are presumptions in place that don’t even deal with exposure to herbicide agents or other environmental toxins. If a veteran has a chronic disability listed under 38 section– I think it’s 307. Certain chronic disabilities as VA is listed them, they can be presumed to be related to service if the veteran has the disability, it manifested to a 10% or greater rating within 1 year of service. So arthritis is an example if a veteran has arthritis and it’s manifested to a 10% rating or greater within one year from discharge because arthritis is characterized as a chronic disability under VA regulations; VA will presume that the condition is related to the veteran service even if the veteran has no underlying evidence to submit to actually prove that link. So it’s a really powerful tool that you should think about using and see if it applies in your particular case.
Maura: Something that comes to mind when we talk about the presumptions too is that– I agree with Mike that they are very powerful tools for veterans who don’t maybe have the medical evidence to prove this link. It takes away their burden to do that. But on the flip side, a common mistake that we see from VA is that they proceed with adjudicating the claim as if the only way to get service connection is by fulfilling the presumptive elements. So for instance, there’s a presumption that if multiple sclerosis, MS, arises within 7 years of discharge is presumptively related to service and there’s no need to provide any additional nexus evidence. But sometimes, VA’s adjudications of service connection for MS claims will say there’s no evidence within the 7-year presumptive period, so there’s no service connection. That isn’t true if you can otherwise prove service connection on a direct basis. So although the presumption is available and helpful, if you don’t meet the presumptive criteria, that doesn’t mean that you can never get service-connected or that you can’t proceed with that claim. It’s just that you’ve got to revert to another way of getting service connection. So as Kayla was talking about before, if you don’t have presence of the presumption to help you, you’re just gonna have to go back in default to the three elements of service connection which are current disability, in-service event or illness and the medical nexus evidence. I’m sure you guys can speak to seeing the same errors as well.
Mike: It’s very common error. I mean, I think VA sometimes falls into the trap of seeing these things and looking for presumptions and if it’s not there, they’ll deny the claim.
Maura: Give up.
Mike: Yeah. As you said, that analysis doesn’t go far enough and the presumption’s there to help you, it’s not there to hurt you. And so, they shouldn’t be using it to limit the scope of your claim. They should be using only where it would benefit your claim. And I think just one more important point in this topic if a presumption applies to a particular element of service connection, that’s great but it doesn’t– the veteran still has to prove the other elements of the claim to get service-connected. So you know, I think we really wanna be thinking about presumptions in terms of meeting certain elements of service connection rather than just service connection generally speaking.
Maura: It’s a great point because as you’ve said before, even if you have the presumption of say for example, exposure in nexus, you still have to have the current disability element satisfied so you constantly wanna be making sure that you’re, generally speaking, meeting those three elements. And for more detail about presumptions because there are so many that we can’t talk about today, definitely feel free to visit our website at cck-law.com. As Mike mentioned before, the best regulations that I would recommend to look out for, the rules about how presumptions apply would be in 38 CFR 3.307 and 3.309. We reference those a lot when we’re looking at the presumptive list, what VA considers to be chronic conditions, how much time between service and the onset qualifies for the presumptive period, so those are helpful resources also. Kayla, I’m gonna come back to you because we wanna talk about a third avenue for getting service connection which is secondary service connection. Can you explain to us what that is and what you need to show to be successful in proving secondary service connection?
Kayla: Yeah. So secondary service connection is when you have service-connected disability and that service-connected disability caused or aggravated a second disability that’s not related to service. That non-service connected second disability can then be granted service connection. So like I said, there’s two different ways to go about it, there’s sort of that direct causation but there’s also the aggravation route. We’re gonna get into aggravation a little bit more in detail later but there two ways to get secondary service connection. The way that you would prove it is again, by showing that you have a second disability so you do still need that diagnosis or the evidence that that second disability exists and again, you do need that medical nexus. So meeting those two criteria that you need for any service connection are still necessary for secondary service connection.
Maura: Okay. What are common examples, if you can think of any, of how this might play out in a fact pattern? What are some examples that we see a lot for secondary service connection relationships between conditions and things like that?
Kayla: Yeah. I think some of the most common examples we see, we see like neuropathy secondary to diabetes or retinopathy secondary to diabetes. Diabetes has a whole host of secondary conditions that do tend to evolve or manifest due to diabetes. Other common ones might include radiculopathies of the lower extremity based on back conditions or if the upper extremities if you have a neck condition. So those can all be granted service connection on a secondary basis.
Maura: Okay. So I think the most important thing to remember about secondary service connection is that instead of an in-service event, we are trying to latch onto an already service-connected condition.
Maura: So generally speaking, the elements are that you have to have a current disability, you have to already have a service-connected disability and then you have to have some proof a link between the two.
Maura: So for instance, if you’re service-connected for a back condition, the back condition causes depression due to back condition limitations, occupational impairment, maybe social impairment given the severity of the back condition, then you’re looking at the medical nexus between the service-connected back condition and the claimed depression.
Kayla: Yes. Go ahead.
Maura: No, no. You go.
Kayla: Okay. I was just gonna say, there’s also maybe less direct ways to get it than just having you know, radiculopathy secondary to a back condition. If you are getting a treatment or taking medication for a certain conditions like certain pain medications for back condition for example, those can also cause secondary problems. Some medications will cause cognitive issues, they may also cause GI issues or if you’re receiving chemotherapy, that might have some long term residual effects. So there are other ways to get it other than just, you know, like an actual direct relationship between a back condition causing radicular pain into the lower extremities. You can also get it based on wear and tear if you have for example, service-connected knee disabilities and you walk with a limb or an altered gait, you may be overcompensating on your hips so you can get a hip condition secondary to your knee condition just based on the wear and tear of that, that service-connected disability is causing on your body.
Maura: And how do you go about filing a claim or asking for benefits in a scenario where you’re claiming secondary service connection?
Kayla: You would file a claim the same way you would for any service-connected condition or any condition that you’re claiming service connection for. So you would do it using the VA form, the 526ez or if you have previously filed a claim for that condition and it’s been denied by VA, you might need to file a supplemental claim with you and relevant evidence. So the same way that you would go about any other claim that you’re filing.
Maura: Great. And your point earlier about how a service-connected condition might require a veteran to take a certain type of medication that has its own side effects. Sometimes, filing a claim for secondary service connection for those effects might not be the only way to get compensation so another thing that we try to do would think about the viability of doing is raising those symptoms as part of the underlying rating for the conditions.
Maura: So for instance, if a veteran has back disability and takes very strong pain medications that cause things like dizziness and nausea, we might wanna file a claim for secondary service connection for the dizziness and the nausea that results from the medications required to treat the back condition. But we might also argue and you might also think about raising this, that when VA rates your back condition, they should also be taking into account either through separate ratings or maybe even an extra scheduler rating that they should be compensating those side effects since they’re clearly linked to your back disability.
Kayla: And it doesn’t always require you to file a claim either. So if you do attend a compensation and pension exam, again, we can use the example of a back condition and on that exam, they do find that you have radiculopathy, they can grant it based off of the exam so you don’t actually have to file that claim if it is found in your medical records that you do have those secondary issues.
Maura: Mm-hmm. Makes me think about how sometimes, VA will prompt you to file a new claim after you’ve already been arguing that the exam is supportive and they should just grant it.
Maura: In accordance with your back condition and so that puts people in a top spot sometimes because they just wanna follow instructions and file the claim that VA is telling them to file but sometimes is not always necessary.
Maura: There’s just– we could go on all day with all kinds of mere things that happen along the way. But–
Maura: –that’s really good to know that there’s a lot of different ways to at least raise the issue.
Mike: Yes. It’s a good point. Because VA really, when they’re deciding a claim for increase, they’re supposed to consider every avenue, really, that would maximize the veteran’s benefit for that particular rating. And so that would include signing separate ratings for any common residuals that result from, say, diabetes. Say, from a spine condition. So really, filing a separate claim isn’t, at least in my opinion, always necessary as we’ve discussed. VA really has a duty to kind of look at the condition in totality and determine how can they maximize the veteran’s ratings. And that may include rating for condition that wasn’t maybe specifically claimed but is a common residual of what the condition that was claimed is.
Maura: Great point.
Maura: And I want to go back to you, Kayla, just for one more thing.
Maura: While we’re talking about ratings, if VA grants secondary service connection, are there any nuances in the way that they rate that secondary condition? Because it’s not linked to service. It’s linked to a service-connected disability. So is there any change in the way that VA rates a condition?
Kayla: It depends how it’s secondary to the condition. So if it’s sort of just that direct condition A caused condition B, they’re going to be rating it under the same diagnostic code, they’re going to be rated at the same rate that you would as if it were a service-connected and it will be factored into your combined rating the same way. However, if you are granted secondary service connection on the aggravation route, it does get a little bit more complicated. What VA will do at that point is, they’ll try to establish what’s called the baseline level of severity before it was aggravated, or what it was pre-existing before the service-connected disability works on it beyond its natural progression. And then they’ll see how severe it is now that they have the service-connected disability that did aggravate it and then they’ll sort of do a little bit of Math to subtract it. So the rating will in essence sometimes be a little bit lower if it is based on aggravation versus the direct degree.
Maura: Okay. Great. And any topic that involves VA doing Math requires some additional explanation.
Maura: So Mike, we’ve been talking about aggravation, let’s talk about how you can get service-connected for a condition through the aggravation theory. I think there’s– the way that I think of it, and you can fill in the gaps because this is very general, but the way that I think of it is that sometimes it’s a disability that pre-existed service and is aggravated by service. And so you can try to file benefits for a condition on the basis that it was aggravated when you were in service. But sometimes it’s that after service, you have a service-connected condition that aggravates another, and then VA can grant service connection on that basis. So there’s so many tangents, and weird things going on. So can you talk about both of those different scenarios and what those claims look like and what they require in terms of evidence?
Mike: Sure. Yes. This is kind of a complicated area, but an important area because– and in my experience, VA loves to deny service connection on the basis that well, your condition pre-existed service. And they leave it at that. But really, that analysis does not go even remotely close enough to what is supposed to happen in these cases. So generally speaking, as you said, service connection for aggravation, it’s another avenue for veterans to seek service connection for a condition. Or I think primarily dealing with the situation where a veteran has a condition that pre-existed their service, or as you said, pre-existed another service-connected condition, and now, they’re seeking service connection for that condition.
So let’s first take the situation where the veteran’s condition pre-existed service. Really, there are two things that a veteran needs to consider and VA should consider when evaluating these types of claims. Number one, did the veteran service increase the disability, or increase the severity of the disability that existed prior to service? And number two, was that increase due to the veteran service or was it due to just kind of the natural progression of the disease or the injury, or whatever the condition may be? So those are the two kind of broad prongs or topics if you will that VA and, we should all consider when we’re thinking about these types of claims.
I think the same can be said, generally speaking, about the second scenario which you raised, which is a veteran has a condition that pre-existed. Maybe it’s difficult to show that the condition was the direct result of something that happened in service. But the condition pre-existed, an already service-connected condition, and that service-connected condition in some way increased the severity of the none service-connected condition. So again, we want to take a look at, in that scenario, whether the service-connected condition was the cause of the increase and whether the increase was due to that service-connected condition? Or was it due to just kind of a natural progression of what the condition would be.
So, I think there are a couple legal concepts that really factor into this. Something called the presumption of soundness is really critical in these types of cases to let us know which avenue we’re going down and how are we going to approach these cases. It’s a little complicated but essentially what the presumption of soundness is, is that it’s a legal concept that says veterans are presumed to enter service in sound condition, without any defect, unless there’s something noted on their entrance exam with respect to that condition. And if there’s something noted– well, let me take a step back. If there’s nothing noted on a veteran’s entrance exam, then they’re entitled to the presumption of soundness, and despite the fact that they may have something prior to service, really the presumption of soundness applies, unless VA can rebut that presumption. And VA can rebut the presumption by doing two things or they must do two things. They must show by clear and unmistakable evidence that the disability that we’re talking about actually did pre-exist service, and this is important, even if they can show that, they still have to nevertheless show that the condition was not otherwise aggravated by the veteran’s service. And this kind of place into the aggravation angle that we’re talking about here.
So, take a scenario where a veteran either clearly documented on the entrance exam, or VA in some way can provide clear and unmistakable evidence that the condition pre-existed service. VA still needs to be able to show that the condition was not aggravated by service, in this place into what we were talking about before. You know, did the disability increase during service? Was it due to the natural progression of the disease, or was it due to the actual time in service? So it’s kind of a lot of information there about a kind of a complicated topic, but I think it’s important to note. Because if the presumption of soundness applies, if nothing was documented or recorded or noted, as they say, on the veteran’s entrance exam, then the veteran’s going to be in a much better position, typically speaking to be able to show service connection. But even if it’s not, they still have an aggravation angle that they should argue unless VA in some way is able to show that their condition was aggravated by service.
Maura: And I think that is a very good explanation of only one of the aggravation topics. And I only say that because Mike is right. This is really complex, this particular area of VA law. Just because the presumption of soundness is kind of strange in that even if a condition did pre-exist service, there still needs to be evidence produced by the government that shows that it was not aggravated by service. And that gets really tricky to understand conceptually. I know it took me a while to catch on to that. But–
Mike: And that’s a really important point. Because oftentimes we see a situation where VA will try to show, or maybe they do show that there is clear and unmistakable evidence, which is a high standard. But maybe they can show that the condition did pre-exist service. But that doesn’t get them off the hook with denying your claim for service connection because they still, nevertheless, have to show that the condition was not otherwise aggravated by your time in service.
Maura: And I think that it’s a little bit easier to understand aggravation in the context of a service-connected condition. So now, we’re beyond service. You already have service connection for something, and that’s aggravating something else that you want to file benefits for. So, I’ll use the same example I used earlier. The back condition that contributes to depression, either as Kayla was talking about secondary service connection before, either the back condition is the cause of the depression, but even if it’s not, you can still get service connection for the depression if it was not caused directly by the back condition, but it is aggravated by the back condition and the functional limitations that come up due to the back condition and things like that. So that’s a little bit easier to understand. The presumptions do not apply that stage like they do with the pre-service disabilities. So when we talk about the presumption of soundness and the presumption of aggravation, that applies to the question of whether a disability that was present prior to service was aggravated by service with all of those elements that you have to prove.
Mike: Yes. And the key there is really looking to the entrance exam, the veteran’s entrance exam, and seeing whether the condition at issue was noted on the entrance exam.
Maura: Exactly. But I do want to ask, and Kayla mentioned this before, how VA rates conditions that are aggravated by either service or service-connected condition. I think the concept there stays, generally speaking, the same. And as Kayla was saying, where you have to start is, you have to come up with a baseline, and then you have to come up with the current severity of the disability and then do some Math to figure out what the rating should be. So can you walk us through that process? Because that’s particularly confusing. And also as you can imagine, another point where we see a lot of VA errors and mistakes in getting this right.
Mike: Yes, absolutely. So as you both have said, VA will try to determine what the rating would have been prior to any aggravation due to a service-connected condition or due to service. And then after the condition have been service-connected and they assign a rating based on what the new severity is, they will take the difference between those two, and they will say, well this is the severity that’s accounted for or due to either a service-connected condition, or due to service. Now, what portion of the condition is attributed to the aggravation essentially?
So an example of this would be, say a veteran is seeking service connection for sleep apnea. And they’ve been diagnosed with sleep apnea, they can’t for whatever reason, link it directly to service. But they’ve also previously been diagnosed with PTSD. And there’s some evidence out there that suggests that sleep apnea can be caused by or exacerbated by PTSD. So, maybe the veteran has a diagnosis of sleep apnea prior to the time of their diagnosis for PTSD. But after they’ve been diagnosed with PTSD, the PTSD really causes an increase in severity in terms of the severity of their sleep apnea. And so now their sleep apnea, as a result of the PTSD is much more severe now. Maybe they need or require a CPAT machine, so VA will take a look at the condition or the severity of the sleep apnea prior to the time with PTSD factored into the overall rating. And then we’ll take a look at the severity of sleep apnea post-PTSD, and they will subtract the two to determine what portion of the increased severity was really attributed to the aggravation by the service-connected PTSD.
So it’s a bit complicated, but I think, just keeping in mind that VA is really trying to rate the difference between the two. And that’s what they want to award service connection and a rating for. You know, this could be in theory to a condition becoming service-connected, but then ultimately, not really resulting in any additional compensation for a veteran. Because perhaps the condition was so severe to begin with that it didn’t aggravate maybe a service-connected condition, or service didn’t aggravate the condition to a point where now they’re entitled to more compensation.
Maura: Right. And something that does come up sometimes is, what if VA is unable to determine that first figure? So in the Math equation that you walked us through, VA first has to figure out what the severity of the condition was before service, or the service-connected condition being involved. And then they’ve got to take the current severity, rate that, and then as you said, get the difference. But what if they can’t come up with that first number? What if the condition wasn’t treated? It really wasn’t bothering the veteran, so it wasn’t causing a lot of functional impairment, wasn’t getting them to go to the doctors because it wasn’t an issue. There might not be a lot of evidence to determine what that baseline is. Or what that first number is, the pre-service severity, so to speak. So how does VA handle cases in that instance?
Mike: Yes. So I think it’s really important for veterans to do what they can to try to provide medical evidence or maybe if they could get an expert opinion to really set the baseline and set what the current level of the severity is. I think if a veteran’s treating for the condition, that can be a good method to obtain that evidence to show what the current severity is, versus what the severity was at the time. Because VA really is going to, like you said, subtract the two out. And so anything that a veteran can do to establish that would be helpful to their case.
Maura: Okay. I think we’ve seen cases where– I agree with all of that. But I think there are some instances where all of those efforts are futile. And so, if VA can’t come up with a baseline and you can’t produce any evidence that would have shown what your baseline was, I think it’s worth arguing that VA has to assume that the baseline was zero. Especially in the absence of evidence. They love to use that against veterans. They like to say, “Well there’s no evidence of treatment, so it must mean that the condition isn’t there or it’s not really bothering you.” I would say there’s no evidence that the condition is there, so it was at a zero percent level. It was–
Mike: That’s a great point. Yes.
Maura: It wasn’t a problem.
Mike: Yes. That’s a great point. You know? If there’s a lack of evidence, then I think that’s definitely worth arguing. And then I think you want to submit evidence to show the current severity, to show that the condition actually has aggravated now. It’s not still at or worth a non-compensable rating.
Maura: And although this does involve medical questions for the most part, I do think that lay evidence can play a role if there’s any uncertainty as to what the severity of your condition was before service. If you’re in a position like that where you’re trying to deal with that issue to try to get the appropriate rating for an aggravated disability, I would consider putting something in writing and sending it to the VA that if it’s the case for you, maybe that explains, “This was not bothering me until I was in service, or until this happened to me in service,” or whatever. Because it’s tricky when there’s not a lot to work with, there’s mistakes that are made. There’s mistakes that are made when there is a lot to work with. But especially when you know, there is some uncertainty, try to do what you can to control the narrative, I would say. And guide VA on that right path. And provide the evidence and the facts that are not in the record as it exists. Do you guys have anything else to add about that?
Kayla: You mentioned getting a statement from a veteran, I would also just say getting statement from people who have experienced the veteran’s disability and seen that worsening or that aggravation of the condition can also be extremely helpful in these cases.
Maura: Perfect. I agree. We’re going to go with the last avenue for service connection. So we’ve talked about five today, I think. We’ve talked about direct service connection, we’ve talked about presumptive service connection. We’ve talked about secondary service connection, aggravation, and now we’re going to talk about 1151 claims. Another nuance area. We got lucky today with all the complicated stuff. But I want to talk to Kayla about this particular topic. This one’s a little weird, because service connection based on 1151, and when we say 1151, we’re referring to 38 USC 1151, which is a statute that lays out this type of option for service connection. But it’s not service connection for a condition that arose in service or arose due to service. It’s service connection for a condition that arose due to the circumstances of VA care. So Kayla, can you talk to us about what you need to file to get benefits for a claim like this, how this claims work generally speaking, what the difference is from typical service connection that we’ve talked about earlier.
Kayla: Yes. So, step one, like you said, filing a claim, it’s again sort of that same process as you would for filing any other compensation claim. You would use the 526ez or a supplemental claim form if new and relevant evidence depending on your claim history. The main difference like Maura had said, is that, an 1151 condition is not directly a result of the veteran service. So instead for these types of claims, you have to show that the treatment or the care that you received at a VA facility was negligent or lacking in proper skill in some way that caused you to have this now disability.
Keep in mind that it has to be a disability that’s not reasonably foreseen based on this care. So if you enter into a surgery that you have a lot of known associated risks and then something does arise from that surgery that is pretty common, pretty typical, that’s not going to be enough to get you an 1151 claim. You are going to have to show that someone in VA’s facility or something happened during your care that was wrong. It shouldn’t have happened and it was the result of negligence, lack of proper skill or a mistake was made.
Another way that you can file an 1151 claim and prevail would be to show that you were injured while participating in a vocational rehab or a compensated work therapy program. These are a little bit different, and that you don’t actually have to show that there was any negligence at the fault of VA. I mean, it’s just something that happened to you while you were participating in one of these programs. But going back to the VA care side of this, medical evidence is extremely important in these cases. They are very hard to prove, and you really do need that medical evidence from the time of your treatment, as well as a nexus opinion in these cases showing that something happened during your treatment that was wrong and then linking that wrongdoing to your current disability.
Maura: Mike, what do you want to add about either proving these cases or any helpful tips just to kind of contextualize how these cases kind of play out?
Mike: Yes. These really are difficult cases in a lot of ways. I think Kayla’s spot on in saying that these cases really require medical proof, medical expert proof. Because what we’re really doing is, you know, we’re saying it was a current disability, but we’re really having to show that there was some negligence on behalf of a VA hospital, or a VA medical practitioner, or something that happened during an examination or treatment. So that medical evidence needs to kind of set what the standard of care would be and how the VA employee or the VA facility kind of deviated from that standard of care. And those are things that a layperson or a veteran just can’t say on their own. It’s not a legal argument that you can make, it’s something that requires expert proof.
And so for that reason, and a lot of other reasons, they are more difficult cases to prove. Sometimes veterans could potentially have more success. If they looked into other avenues such as a personal injury claim, I mean if they feel that there’s been some type of negligence on behalf of a VA doctor or VA facility, so that’s another avenue. It’s not something that we do here necessarily. But it’s something that may be worth considering if a veteran thinks that they have an 1151 claim. It’s a complicated area, but the difference, essentially, is that under an 1151 claim, you’re really using VA’s negligence to establish service connection for a condition. And then the condition will be rated under the general rating criteria. Whereas, a civil lawsuit for malpractice, there are a lot of other damages that may come into play that may result in different type of, or different level of compensation that would not be allowed necessarily under the VA system. So they’re really talking about two different divergent systems. But I think, I just– you know, I think stressing that these claims are difficult, it is an avenue for potentially gaining service connection for a condition, but they really are going to require medical proof to establish.
Maura: I think some questions that we get about 1151 claims kind of prove how complicated they are to understand but also really work with. And a couple of things that I would add is that 1151 is not– it’s a whole different theory of getting service connection, but at the end of the day, that’s the end goal of these claims, a service connection. So it’s not an avenue to pursue other types of damages as Mike mentioned. And I think that’s important. Sometimes when the question is whether VA doctors acted outside of the standard of care, there are other issues that can arise to someone who’s suffering from that kind of situation or the residuals of that situation. But we are still just looking at what disability is related to that, and if successful, how is VA going to rate that disability within the parameters of service connection. There’s no other room for additional benefits, additional damages. It’s really just looking at what conditions did that, then cause and how can they be rated and how can a veteran be compensated, as other veterans are as if it happened to them in service.
Kayla, I’m not sure if you mentioned this, if a veteran is receiving VA care, but unfortunately passes away as a result of that care, can anyone else bring an 1151 claim on their behalf?
Kayla: Yes. A veteran’s widow or surviving spouse can file an 1151 claim. They would have to show that the veteran’s death was due to that negligent care on VA’s behalf, excuse me. So again, it’s that same sort of tricky system where you’re really going to need that strong medical evidence to show that there was some sort of negligence or deviation from standard of care that they would normally be receiving that did result in that death. But going about filing the claim, you would do the 534 Form which would allow you to file for cause of death. And then you would just have to elaborate on the theory and provide that evidence.
Mike: And a lot of times, there are other avenues available to establish service connection, in addition to 1151. So you know, if a veteran thinks that they received negligent care at a VA facility while they’re on active duty, maybe there’s an 1151 issue there, but also, they were on active duty and a condition arose in service, so maybe the more direct route would be going direct service connection. Or maybe they can otherwise link their condition as we’ve talked about here to a presumption or to, secondarily to another service-connected condition. So there might be an avenue for 1151, but I think it’s also worth really thinking about all the other avenues first and seeing if one of those apply.
Maura: Great. And 1151 is not something that can be used to dispute the findings of a VA exam either. Again, this is not a well-known area, necessarily. These don’t come up as often as other service connection claims. So there can be some confusion. But definitely important to keep in mind, there needs to be a disability that’s arising from this. So issues about how a VA exam went and how the examiner acted in those exams, things like that, those are questions that we get a lot. But that does not fit within the 1151 umbrella.
And I think that’s all that I had on this topic, and I think, the others. Is there anything that we want to close with to remind people about service connection? Evidence that they need for their claims, etcetera?
Mike: Sure. So you know, we’ve gone over five different theories today, or avenues for service connection. And I think it’s worth noting that VA really has an obligation to consider any and all reasonably raised theory of service connection. So despite the fact that the veteran may only be seeking service connection under one theory, hopefully, they haven’t limited their claim to such. But you know, if there’s evidence in the file to suggest that service connection is otherwise warranted under another theory of entitlement, VA really is obligated to consider all of those theories. And if they deny your claim, and they haven’t considered another theory that’s been raised by the record, by the evidence in the record, then they haven’t done their job, and maybe we could look at appealing, or maybe you should look at appealing that particular decision.
Kayla: I absolutely agree with everything that Mike just said.
Maura: And one thing that I would just add to remember is that the standard of proof for service connection and for really everything before the VA is whether it’s at least as likely as not that the injury or disability, or whatever, was caused by service or arose in service. So just something to keep in mind if you’re working on pending service connection issues, or even if you’re working with a representative, and you’re trying to think about what kind of proof you need, what you should submit. Think about what you need to submit to meet those three elements of service connection, current disability, something in service, and a link between the two. And also keep in mind that if VA is getting evidence and trying to develop your case, it only needs to show that it’s at least as likely as not that the benefit should be granted. VA makes mistakes on that too, we’ve talked about benefit of the doubt doctrine and Mike had mentioned the non-adversarial nature of VA. That’s the operative standard of proof. So I think that’s all that we have for today? Do we have any other questions? Perfect.
Thank you all so much for joining us, and we hope to see you next time.
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