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In a claim for VA service connected
compensation benefits perhaps the most important element you need is the nexus. Unless, you are only seeking an increase in
your present benefits then the nexus issue is the most important issue and most times the focus of what you are trying to
prove in most cases. What does the VA mean by the term nexus? This is a term used to describe the connection between one's
in-service injury disease or incident and one's present disability. There are several ways in which service connection can
be found. I will briefly describe each one below. You are always welcome to call me at 1-877-527-5529 with any
questions about VA service connection.
VA Case Evaluation
Direct VA Service Connection
The first of these that I will discuss is direct service connection. Direct
service connection is when your in-service injury, disease or incident is shown to have directly caused your present medical
disability. A simple example of this is a veteran who lost an arm in service and is making a claim for loss of use of his
arm in a VA claim. However, many times it is not as easy as this to make the connection. You can show direct service connection
if you can show present medical evidence that details your present medical condition. You must also be able to show, by medical
evidence or possibly lay evidence an injury, disease or incident in service. And lastly, that your current medical disability
is connected to the in-service injury, disease or incident by the use of medical evidence. Oftentimes, the key to showing
direct service connection is what is often called a nexus letter from a doctor. How and under what circumstances this letter
is written is extremely important because if it is not done properly the VA may simply ignore this letter. Two of the more
common reasons why these letters are not given proper weight by the VA will now be discussed.
If
the doctor who wrote the letter did not review the veterans file and service medical records and state that he or she reviewed
the file in his/her report than the VA will often disregard the letter. It is best if the doctor actually
refers to evidence in the record. Another common reason a doctor's nexus letter would be rejected by the VA would be if
the doctor when describing the nexus between the current disability and the in-service injury, disease or incident does not
use the "proper" language recognized by the VA. Because the VA is supposed to give the veteran the benefit of the
doubt the standard of proof is that it must be at least 50% likely that the in-service injury, disease or incident caused
the present medical disability. This means that if the doctor's opinion is that it is 50% likely then the doctor should
use the words "as likely as not" when describing the connection. If the doctor is more than 50% sure than he or
she should use the words "more likely than not". Lastly, if the doctor is less than 50% sure of the connection then
the words used by the VA is "less likely than not". In other words, if the nexus letter states either that it is
"as likely as not" or states that it is "more likely than not" that the veterans present disability is
connected to an in-service injury, disease or incident, than the doctor's opinion is stating the condition is service-connected.
Even
if you do not have a nexus letter you can still show direct service connection. If you were treated for a medical condition
considered by the VA to be chronic in service. In many chronic conditions there may be periods and sometimes
long periods of no symptoms or treatment. You can still be service-connected if your medical condition was considered chronic
in-service and later (even many years after service) your symptoms and condition occur again. As long as your present symptoms
and medical condition are not clearly attributable to an intervening cause you can be found directly service connected. For
example, if you hurt your back on a job after service, the VA may find your present medical condition is the result of your
injury on the job and not from your chronic in-service back problems. If this is the case, you would need
an opinion from a doctor (nexus letter) showing that your present medical condition is "at least as likely as not"
a result of your in service medical condition. It should also be noted there is a list of medical conditions the VA considers
to be chronic. If your medical condition is not on this list it does not mean you cannot prove service connection by chronicity
if you can still show using medical evidence that the condition is chronic. Many claims are denied because the VA says your
medical condition is not on the list of chronic conditions. If this pertains to your case, take it upon yourself or find a
lawyer or representative to help you show by medical evidence that the condition is chronic. You
can also show direct service connection if the medical records show a pattern of treatment for a medical condition that started
in service and you continue to get treatment for it after you left service and to the present day. This is called continuity
of symptomatology. An example of this, would be a veteran who while in service was treated for pain in his back and he continued
to get treatment for back pain after service and is still presently being treated for the same back condition. It is important
to note here that if your in-service medical condition is considered chronic you do not have to show "continuity of symptomatology"
this is only required when your in service medical condition is not shown to be a chronic condition.
Aggravated Pre-existing Condition
Another way to prove service connection is ifa pre-existing condition is aggravated during
military service. There is a presumption of aggravation. This means, that if it is shown that the medical condition the veteran
had before service was made worse while in-service by the veteran then the VA must show by "clear and unmistakable evidence"
that the increase in disability is due to the natural progress of the disease. To rebut this presumption the VA has a very
difficult burden to meet. This type of service connection needs to be made when the VA is able to overcome the presumption
of soundness. Under VA law it is presumed the veteran was in sound condition when he entered service. To rebut this presumption,
the VA must show "clear and unmistakable" evidence that the condition pre-existed service. If the condition is noted
on the entrance medical exam then the presumption of soundness for that condition does not apply. The most common reasons aveteran
is found to have a pre-existing condition is if there was medical records of treatment for the condition prior to service,
or the veteran states he had the medical condition before service or it was noted in his/her entrance medical exam. In this
type of service connection, the issue is first whether there was a pre-existing condition. Second, if there was a pre-existing
condition was that condition made worse or aggravated by service. Lastly, if the condition has become worse is it due to a
natural progression of the disease. If you have a claim of this type the most important aspect is to show by medical evidence
that your condition has gotten worse in service. If you can show this, the VA has a very difficult burden to meet when having
to show that your worsening condition is the result of the natural progression of the disease. The VA will normally try to
overcome the burden by opinion evidence from the VA doctor that states your worsening of your condition is due to the natural
progression of the disease. If they have an opinion like this in your particular case it would be a good idea to get opinion
from your own doctor.
Presumptive Service Connection
The third way to be found service-connected is by statutory presumption. Over the years, statutes
were made that that find certain conditions for certain veterans to be presumed service-connected. It should be noted that
a veteran must have served a minimum of 90 days to qualify for presumptive service connection. If a chronic disease
manifests itself within the first year of leaving service it can be presumed service-connected. This presumption can be overcome
if it is shown that there was another cause for the condition between the time the veteran left service and the onset of the
disease. It should also be noted here, that certain diseases have a longer presumptive period than the one-year. One such
medical condition is multiple sclerosis if this condition manifest itself within seven years it is presumptively service-connected. There
is also statutory presumptions for POWs for certain medical conditions, Persian Gulf Veterans for certain medical conditions
or symptoms, veterans exposed to radiation for certain medical conditions, and veterans exposed to Agent Orange for certain
medical conditions. Specific discussion of all these statutory presumptions is beyond the scope of this article since each
one would require an article unto itself.
Secondary Service Connection
The fourth way a veteran can be found service-connected is called secondary service connection.
If a service-connected medical condition caused or aggravated another claimed medical condition than the claimed medical condition
is service-connected also. It must be shown by medical evidence that it is "at least as likely as not" that the
medical condition for which the veteran is seeking service connection was caused or aggravated by an already service-connected
condition. For example, if a veteran is service-connected for diabetes and as a result of the diabetes the veteran suffers
from peripheral neuropathy and the veteran can show the peripheral neuropathy is a result of his service-connected diabetes
than he would be secondarily service-connected for the peripheral neuropathy. In these types of claims, it is almost always
a good idea to get a doctor's opinion letter on the issue. These types of claims can often be quite difficult and normally
require a strong and detailed opinion letter from your doctor after he has reviewed your record and examined you.
1151 Claims and VA Federal Tort
The fifth way a veteran can be found service-connected is if the medical condition was proximately caused by VA medical
care. This is often called at 1151 claim. To be service-connected in this type of claim it must be shown that there was fault
or accident by the VA that caused the disability. It is significant to note here that if the VA acted negligently the veteran
may also want to file a Federal tort claim. These types of claims can be extremely complex. You should consider getting help
from a lawyer in this type of claim. And if you plan to file a Federal tort claim against the VA then you will almost certainly
want to hire a lawyer for that claim. Many VA lawyers do not handle Federal tort claim cases so you may have to seek two separate
lawyers in this situation. You can ask a VA lawyer and if they do not handle federal tort claims, they will probably know
a lawyer that does.
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