Common Secondary VA Disabilities
Video Transcription:
Christian McTarnaghan: Good afternoon, everyone and welcome to another edition of CCK live. Today, we are going to be talking about common secondary VA disability. My name is Christian McTarnaghan. And today, I am joined by Alec Saxe, Alyse Galoski, and let us just jump right into it. To understand the secondary service connection, I think an important place to start is to understand first what direct service connection is and to understand what service connection is in general.
Christian: Direct service connection, a veteran can get direct service connection when he or she has a disability in service or has an in-service incident something happens to them in service. The common example is maybe jumping off a truck and hurting your knee that would be an in-service instance. Then they would need to have a current disability. Sometimes those disabilities are diagnosed. Sometimes there is not.
Christian: Then the third element of what we call direct service connection is nexus or some sort of link between what happened to you in service. Then your current disability or your currently diagnosed disability. But that is not the only way to get service-connected. Right, Alyse? So could you maybe explain to people what secondary service connection is?
Alyse Galoski: Yeah, secondary service connection as you pointed out, it is an alternative way of getting service connection. Essentially, it is a way that you can get a service connection when you are relating your current disability to a disability that is already service-connected.
Alyse: You can do that in two ways: You can either show that you are already service-connected disability either caused or aggravated the new disability that you are trying to get service-connected. Causation is basically what it sounds like, if disability A causes disability B, therefore because disability A service-connected disability B, it should also be service-connected.
Alyse: Aggravation is a little bit more complicated. It is essentially when disability A aggravates disability B the reason why it is more complicated is because it does not require causation. It just has to make that disability worse in some way but the case law shows that it does not have to be the only aggravating disability. Your disability could have been caught, a disability could have been caused by other factors, multiple other factors, or even aggravated by all the factors.
Alyse: So long as you can show that disability A is somehow aggravating, then in theory you are entitled to service connection. It is as if it is more difficult than if you can just show causation, which is much more straightforward. It is something that you should know because a lot of times the court or the board, in particular, will not necessarily see this as a way and it is a good way to get a court remand.
Christian: Absolutely. You mean to say you have to be aggravated or maybe worse. Is it a lot worse? Is it a little worse? Is there any standard that we know of that we can let our viewers know about to try to use to help their claims?
Alyse: The case law basically says any worsening. One thing that I can say is that there are not that many solid standards, but we know now that it is not permanent worsening. Permanent worsening is a different standard for a different type of aggravation so that is not required in secondary service connection.
Christian: So Alec, what are some common ways that a secondary condition might manifest from a service-connected condition?
Alec Saxe: I will get into greater detail on this later. To preview some of the ways in which secondary disabilities arise, there are for instance conditions that as we discuss develop from already service-connected conditions. Some good examples I will discuss are complications from diabetes such as peripheral neuropathy, kidney-related diseases, or vascular diseases.
Alec: Other common secondary conditions are orthopedic conditions that might be caused or aggravated by other already service-connected orthopedic conditions. You see that pretty commonly. For example, service-connected feet or ankle or knee disabilities can give rise to hip or back conditions and then there are also physical disabilities that cause pain and from that pain, develop any number of psychiatric conditions.
Alec: Depression from the pain that you are in all day. There are also medications that you might be taking for your service-connected condition that can cause or aggravate another condition. Medications that might make you lethargic, can lead to sleep disorders or cause gastrointestinal type issues can be service-connected for the secondary GI disability that might result from the medication you take for the service-connected disability.
Alec: The last one that I do not think we will get into too much discussion about and we have other CCK lives on this is obesity as an intermediate step. It is a little more attenuated and complicated but essentially obesity can act as an intermediate step between an already service-connected condition and the condition for which you are seeking secondary service connection.
Alec: Most commonly, orthopedic conditions that might make it difficult to exercise or even impossible to exercise which can then lead to weight gain and obesity which in turn might lead to sleep apneas which is probably the most common.
Alec: Any wide range of conditions that might be related to obesity if they can be routed back to that initially service-connected one. But again, I encourage you to peruse our website and check out the other CCK live we have on that. I think it has a little more in-depth discussion about it.
Christian: I also think we have a blog post on that as well. That is just the tip of the iceberg on that issue for sure. Something that I talked about when I was talking about direct service connection also applies when we are talking about secondary service connections and the type of evidence that you need that a veteran needs to prove entitlements and secondary service connection on like you were talking about Alyse, all the causation or an aggravation basis.
Christian: A great piece of evidence that you can get is a Nexus opinion that links your service-connected condition to the non-service-connected condition that you want to be service-connected, secondary to your service-connected disabilities. And so like Alec said, you have a psychological disability, you take medication that causes the gastrointestinal problem. If you had medical evidence that says definitively that you take this with these meds for your mental health disability. It causes gastrointestinal disability. That would be good evidence to support a secondary service connection claim.
Christian: Also, VA is supposed to look at more than just medical evidence when making these determinations. Some other evidence that might be submitted to the records to try to help a secondary service connection claim would be studies that maybe show a connection between two disorders or your service connection disorder and the disorder or disability that you are requesting secondary service connection for. Again, they are supposed to be looking at a broad spectrum of evidence, lay evidence would also potentially be helpful in your claim.
Christian: Lay evidence cannot substitute for medical evidence, that gets a little tricky. But if you have a foot condition and it causes you to walk differently and you do not look okay, right? That is something that you should be able to tell the VA about. What they refer to complementing incredible sort of report. The fact that you walk differently with a unique pace, you should be able to have the VA take a look at that.
Christian: We also wanted to know how these positions are rated because I bet a lot of people have questions about it. They are rated the same as if you were granted a direct service connection for it. Just going back to the example of the mental health disability and then taking medication, you would be service-connected for that gastrointestinal disability just as if it were caused by service. You get the same rating for the severity. Nothing really works differently there. Before we move on to the next part, anything that you guys want to add or clarify from what I just said?
Alyse: No. I think that is an important point that you made about the lay statements, Christian. I think a lot of times in the CCK lives we do emphasize how you can submit your own lay evidence. And secondary service connection it really is one of those areas that unfortunately, just laying evidence is not going to take you all the way. You really do have to have that medical knowledge to be able to link as I was using before disability A and disability B in some way. Unfortunately, the layperson is not usually confident to do that. It is not to say not to use lay evidence, it just means it will not get you all the way in this one area of the law.
Christian: Sure or it does not always, of course. Like Alec had alluded to, we are going to talk a little bit more about some of those specific examples that he noted quickly at the beginning of our talk. Alyse, you want to talk a little bit more about secondary service connection in the realm of diabetes?
Alyse: Sure. Diabetes is a big one that we see particularly because diabetes is a really common disability among veterans. It is a presumed disability based on agent orange exposure. We see it a lot. The other thing is it causes a lot of other known complications. Some examples of those complications would be diabetic neuropathy or some other type of nerve damage, kidney disease, or some type of kidney dysfunction. Retinopathy, cataracts, or some other type of eye condition. Vascular issues such as heart attack, stroke, or hypertension. Those are all known to be linked to diabetes.
Alyse: You can get secondary service-connected for those conditions based on if your service-connected for diabetes. It is also important to note that with diabetes, it is a unique rating criteria where you can also be rated under the diabetes rating criteria based on complications. All of those things that I just listed could be considered complications.
Alyse: I think it is one of those things where you really want to work with your representative to see what the best avenue is for you to take. Whether you want to try and get a secondary service connection or if you want to try and get a higher rating under your already rated diabetes based on your complications. The one thing I should note is you will not be able to get both because that would be considered pyramiding. Your symptoms or functional loss can only be contemplated and compensated once.
Alyse: There are different avenues with diabetes. It is unique and we definitely have a lot of information. We have other CCK lives on it. We have other information on our website and blog posts. But I also do encourage you to talk to your representative about it to see what the best avenue because if you know everybody’s different in that aspect.
Christian: Because if you have a 40 for your diabetes and you can get a 20 for your neuropathy, that is caused by it that might be better. If you are not going to be able to get to the hundred percent which you might be able to get with many compensable with a few compensable complications of diabetes. We do not want to get too down too far down that road. We just wanted to let people know that secondary service connection is available for these complications, but it also sometimes able to get you higher ratings for your diabetes. Moving on to our next example. Alec, you want to talk a little bit about back condition?
Alec: Yeah. Back conditions can cause a wide array of secondary disabilities. I think most commonly we see these in the realm of nerve issues. For instance, radiculopathy lower extremity radiculopathy, herniated discs, or degenerative disc disease leading to sciatica. The nerve damage can also lead to or cause erectile dysfunction or bladder incontinence.
Alec: And then as we discussed a little earlier, secondary conditions resulting from pain medications. A lot of Americans are currently on high doses of heavy pain medication that can cause liver damage and just lead to other GI conditions. Those pain conditions, pain medications they are taking for that back pain can then lead to those secondary conditions.
Alec: Again, it also can lead to psychiatric conditions as well. It is important to note not just the conditions leading to other conditions, but the medications that you are taking to treat the service-connected condition and if that can cause or aggravates a non-service connected condition.
Christian: We definitely see a lot of back conditions in our practice. Alyse, Alec, and I all work before the United States Court of Appeals for Veterans Claims. So we would be appealing file board decisions to that Court to try to help our clients. We see a lot of back conditions, but we also see, a lot of orthopedic conditions in general. Disabilities affecting feet, ankles, or knees.
Christian: One of the things that happen when you have these problems is a change in the way someone walks because the pain and sometimes the actual joints are in structural damage caused by the disability. They have what is referred to as an altered gait and that constrain other muscles and joints. Years or weeks or months of walking in a particular way that might not be anatomically natural can cause a foot disability and hurt someone’s knee or affect someone’s hip.
Christian: That is also an avenue of secondary service connection to be whenever you walk differently or you are with disabilities causing pain in your knee, knee arthritis, or some sort of inflammation. That is something that you might be able to be your secondary service. That is not the only avenue or not the only way that one orthopedic disability can affect someone. Alyse, do you want to talk about a little bit about orthopedic disabilities that potentially can cause mental health conditions?
Alyse: Of course, any time that somebody is in severe, constant levels of pain or maybe even unpredictable pain there are results from that and one of them is mental conditions. It can cause depression because you are not able to enjoy things the way that you used to be and just frankly just being in that much pain can really weigh on a person.
Alyse: We also see issues with instability being linked to anxiety. If you have a fear of falling or falling in public and it is not even just that it has to cause those mental conditions. If you already have depression or already have anxiety, whatever it may be if your pain condition is aggravating it, then that is also a service connection.
Christian: That is a really great point. I was talking a lot about the causational elements in those orthopedic disabilities but that really bears repeating that if it just makes it work that is also what we are talking about here today. Thanks for that reminder. We have been talking a lot about orthopedic disabilities. I mean, he says there is a lot of veterans who served the country that has a severe orthopedic disability. It is something we see a lot. We see a secondary service connection in those cases a lot. That is not the only way that someone can get secondary service-connected. Do you want to talk a little bit about post-traumatic stress disorder, Alec?
Alec: Of course. PTSD can affect people in a lot of different ways and can lead to different conditions including sleep disorders, ulcers, to high blood pressure. There is especially a lot of research out there linking PTSD to secondary conditions, especially in the realm. We see a lot of sleep apnea. Insomnia or not Insomnia but sleep apnea, those types of claims.
Alec: Then hypertension, high blood pressure not just related to the physical stress that your mental condition can put on the body. But again, going back to the medications that you might be taking for your PTSD. So that is how you can link up with those other physical conditions.
Alec: Unfortunately, people who self-medicate with alcohol for PTSD can result in substance abuse that can lead obviously to other secondary conditions most commonly liver issues. As we all know, mental disabilities can really impact a person in a number of ways including the physical realm and that is what you see. I would be cognizant of that too. You are making these claims and looking for a secondary service connection.
Christian: In fact, some nuisance that I want to just know quickly is you cannot get direct service connection for alcohol abuse. But because mental health disabilities can cause substance abuse or alcohol abuse, you can get a secondary service connection for the ramifications of substance abuse. That is a really important point there.
Alec: Yes, certainly.
Christian: So we covered a lot of ground today, but something we always like to do before we end these talks is basically pulling you two and pull up about any tips that you have for veterans or any closing thoughts about secondary service connection and the secondarily service-connected disability.
Alyse: One thing I would encourage you to do is to become familiar with the rating criteria the diagnostic code that you are actually being rated under. Whatever your underlying disability is, you want to make sure that what you are trying to get service-connected is not already something that would be contemplated by that diagnostic code. For example with diabetes but another one is PTSD. Often, you might think that some of the things in PTSD are secondary conditions but they might actually just be symptoms that would warrant a higher rating.
Christian: Yeah, part of the disability or already service-connected for.
Alyse: Right. Before you determine whether you are a good candidate for secondary service connection, I would just encourage you to become familiar with what diagnostic code you are actually being rated under and see that the avenue is actually just to get a higher rating because that is going to be more simple than getting secondarily service-connected.
Christian: : Sure. That is a really great point.
Alec: Now, and I would add you know, this is not intuitive and as we discussed earlier in this area, it is especially important to have the medical, the science, the back to back these claims up, or to reasonably raise the issues. If you are not explicitly raising them and that is why the lay statements can only go so far. That being said, it is important to discuss all the issues that you have with your treating providers.
Alec: If you notice that you develop this condition or that this condition that you had has been made worse by the condition that you are already rated for. Know that it will make its way into the VA treatment notes and a lot of times for us as attorneys at the court at the appellant level.
Alec: We are looking through these VA treatment records to see notations from providers which are often based off veterans’ statements that recently raise these Nexus or calls connection between the service-connected condition and potentially other conditions. It is important to be fully transparent and articulate those problems with your doctors because that is the way that we find them all the time if you are not explicitly raising them.
Christian: Absolutely and my closing thought would be if you think that a service-connected disability is causing another disability or making a disability work, file a claim for it. VA has a duty to assist veterans at the agency level, it is obviously incredibly helpful If you have some sort of evidence to support it and they did it with your claim, maybe some medical evidence for a private provider, but that just make sure that your effective gate which is the day that you could potentially be service-connected for that could be protected. I would definitely suggest that if you have you a few things that one disability is causing making other worse you file a claim for it.
Christian: All right. Well, I think that is it for today. Thank you very much for joining us on another edition of CCK live and hope to see you again soon.
