There are three types of service-connection 1) Direct 2) Presumptive and 3) Secondary service-connection.
There are three requirements to establish direct service-connection for residuals of injuries and diseases;
1) In-service documentation of an injury or disease.
2) A current a medical diagnosis.
3) and a medical nexus connecting 1 and 2.
An in-service injury or disease means that it generally must be documented in the veteran’s service medical records (SMR’s). A medical diagnosis means that the claimed condition has to show current residuals from that in-service-injury, and it must have a current medical diagnosis from a physician. Many times the diagnosis can be obtained from the VA C&P exam. If the VA sees that your condition was “chronic” while in the service, or that you have medical documentation of continuity of treatment since discharge, more often than not they will schedule the veteran for a C&P exam to obtain the needed diagnosis and current disabling effects of the claimed disability.
Something connecting the two (or sometimes called "nexus"), means either continuity of treatment of the claimed disability from time of discharge to the present, or, if this is not the case, then a statement will be needed from a physician to establish the link between the two. A lot of times a medical statement, or medical opinion (IMO), is a critical part of the veteran's claim. An IMO can sway the benefit of the doubt in the veteran’s favor if the claim is borderline, or it can flat out prove service-connection in some claims! For example, by borderline I mean let’s say that a veteran was seen for lower back pain once while on active duty over a period of a five year enlistment. And now it is ten years since his discharge and the veteran hasn’t been treated for the lower back until recently, or only had one episode of back pain within those ten years since getting out of the military. The veteran would need an IMO stating something to the effect that his current lower back condition is some how related to the episode while on active duty. If the RVSR (Rating Veteran Service Representative, or “Rating Specialist”) is very liberal in applying the regulation, he/she may award service-connection without the IMO. However, if the RVSR is “by the book,” then he/she may deny service-connection in the absence of a good IMO establishing the nexus or "link" between the two . Another example of where an IMO can establish service-connection would be where a veteran was seen one time for a knee condition while on active duty and this incident is noted in his SMR’s. Ten years later the veteran is experiencing pain in that same knee but didn’t have any type of treatment since his discharge, he would need an IMO to establish that his current disability is somehow related to the in-service episode.
Presumptive service-connection is when certain disabilities have manifest themselves to at least 10% disabling within the prescribed time limits after leaving military service. These disabilities and diseases do not need to be annotated in the veteran's service medical records. Hence it is presumed that the disability or disease occurred while on active duty. The presumptive disabilities and diseases and their periods of manifestations can be found under 38 C.F.R. §3.307, §3.308, and §3.309.
Secondary service-connection is when an already service-connected disability has caused another disability. For example, a common one would be lower extremity radiculopathy due to a herniated lumbar disc. The majority of secondary service-connection claims require a medical opinion from a physician as stated above to establish service-connection on a secondary basis. Secondary disabilities are awarded service-connection and evaluated and rated just as directly service-connected and presumptive disabilities and diseases are.
Misc. topics concerning disability compensation:
Applying for an increased evaluation:
If you are already receiving disability compensation from VA and your disability has gotten worse since the last rating decision, you can request an increase in evaluation from VA. To do this simply fill out VAF 21-526b and attach any treatment records pertaining to your service-connected disability(ies) since your last C&P exam and rating decision. Once the VA receives your request for an increase, it will go to the Pre-Determination Team and go through the development phase in which you’ll receive the VCAA letter (or known to some as the “Duty to Assist” letter). After your claim is “Ready to Rate,” it will go to the rating activity for a decision just like a normal claim would. Once the RVSR has made a decision, the rating goes to the Post-Determination team to be promulgated. If you disagree with the RVSR’s decision, you can appeal that decision just as any other rating decision by VA.
Re-opening a previously denied claim:
If you have previously been denied a claim for disability compensation and that decision has become final, meaning the one year appeals period has run out, you can request to have that claim be "re-opened." In order to re-open a previously denied claim, you must submit “New and Material” evidence. This means evidence which is “new," or was not previously before the decision maker when they made their previous decision, and “material,” which is evidence that bare directly on the fact as to why the previous claim was denied. Once you have submitted “new and material” evidence and VA re-opens your claim, they again have a “Duty to Assist,” and your claim will go to the Pre-Determination Team for development, then to the Rating activity, and Post Determination Team, just as a claim for increase or an initial claim would. Keep in mind that by simply submitting "new and Material" evidence doesn't mean that your claim will actually be granted. It just means that there is enough prima facia evidence to warrant another look by the VA! To re-open a previously denied claim with "new and material" evidence simply fill out VAF 21-526b and attach the "new and material" evidence to the form and send both to your regional office.
Appealing an issue with VA;
When you receive your rating decision from the VA, look over it carefully. Make sure all of the evidence you sent them is listed in the ‘evidence” section of the rating decision. In the “Decision” section will be what VA decided. In the “Reasons and Bases” section will be VA’s rational for their decision. If you disagree with VA’s rating decision, you can appeal that decision.
In any type of appeal, the first step is submitting a Notice of Disagreement (NOD) with your regional office telling them what issue you disagree with and why you disagree with that decision. There is now an official form for this, which is the VAF 21-0958. You have one year from the date of the letter informing you of the rating decision to submit your NOD. On the VAF 21-0958 you should also specify which way you want your appeal handled i.e. the traditional way (Board of Veterans Appeals, or “BVA”), or through a DRO review. If you don't tell the VA which one, they will send you a letter asking which route you want. You then have 60 days from the date of that letter to choose. If you don't answer the letter, the VA automatically process the appeal through the traditional process. Also in the NOD you should state if you want a hearing or not.
A DRO review is where a Decision Review Officer, hence DRO, who is a senior rater with many years of experience and works in the "Appeals Team" at local regional office (RO) will completely review your claims folder and NOD and decide whether or not he/she can grant the benefit the claimant is seeking. If the DRO grants the appeal in full, he/she will produce a rating decision telling the claimant of the percentages ect... just like the Rating activity would on a normal claim. If the DRO cannot grant the appeal in full, then he/she will issue a Statement of the Case (SOC) explaining the actual laws and rational which pertain to the denial. Even if the DRO is able to grant a partial appeal, they still must send out a SOC. For example, let's say you are appealing a PTSD rating of 50%. The DRO grants an increase to 70%, but since the DRO didn't/couldn't grant the highest possible award pertaining to the disability, they must still produce a SOC. In this scenario, the DRO would send out a rating decision with the grant in increase from 50% to 70%, and a SOC stating why he/she couldn't grant the full benefit allowable i.e. the 100% rate. Once a claimant receives a SOC, they have 60 days from the date of the SOC to either "perfect' their appeal by submitting VAF 9, which will prompt the RO to send the appeal to the BVA, or submit 'New" evidence that wasn't before the decision maker when he/she made their prior determination. When the claimant submits "new" evidence, the VA will evaluate the new evidence and either grant the benefit sought on a appeal or issue a Supplemental Statement of the Case (SSOC) outlining why the new evidence was unable to be used to grant the appeal. A SSOC will only address the new evidence the claimant submitted. From the date of the SSOC the claimant again has 60 days to either "perfect" the appeal by submitting VAF 9, or again submitting "new" evidence. If the claimant submits new evidence again, then the process of either a grant in benefits sought or a SSOC will repeat itself until the claimant "perfects" their appeal.
The traditional appeals process is where the claimant wants to skip the DRO review and appeal directly to the BVA. In this case, the claimant still must send a NOD to the VA. The VA, more specifically the rating activity that made the prior decision, will send out a SOC. Once the claimant receives the SOC the process afterwards is the same as when the DRO issues a SOC. You either can submit "new" evidence and have the Rating activity reconsider their previous decision, which will either prompt them to grant the benefit sought on appeal or they will send you a SSOC, or you can "perfect" your appeal by sending in VAF 9. Once the VAF 9 is sent in, the regional office then prepares your claims folder for the BVA where it gets put on the docket. Remember you only have 60 days from the date of the SOC or SSOC to submit the VAF 9!
Clear and Unmistakable Error (CUE):
The phrase "clear and unmistakable error" is a very misunderstood phrase by veterans when dealing with VA. When used by VA it is a legal phrase which does not necessarily mean what a simple reading of the words would mean to the average layperson. When VA says that there has not been a clear and unmistakable error committed, they aren't saying that there was no error; there might have been. What it means is that there wasn’t an error that rises to the level of the legal definition of this phrase as applied by VA in VA law. The phrase "clear and unmistakable error" means something entirely different in its legal context than simply saying whether or not VA made an error. Many veterans have the understanding that CUE is something which can appear to be erroneous and yet not be a CUE. To most people using logical thinking an error is an error. However, to qualify as a CUE, the error must not involve judgment on the part of the decision maker (most decisions by RVSR’s involve some type of judgment). That is the key element that confuses many veterans. In order to be a CUE the decision maker must have reached a decision based on the incorrect application of a regulation or law without judgment being involved, or the decision must be based on an incorrect statement of the facts as they are known at the time. This doesn’t mean that the decision maker simply stated something that was not accurate, but that the decision itself turned on an erroneous statement of fact as was known at the time of the decision. A CUE must be based on the laws and regulations in effect at the time of the decision. A CUE is the means by which VA can go back and correct an error in a decision that would otherwise be considered final and not subject to correction. The VA has one of the most, if not the most, liberalizing appeals time frames there is in the disability compensation industry, so if there is an error in bad judgment, the veteran has every opportunity to appeal that decision.
Some other elements besides judgment by a decision maker that also aren’t a basis for CUE are, exam protocol and accuracy of the medical reports or completeness of the medical reports (A CUE is based on the accuracy of the decision made by the decision maker on the basis of whatever evidence is in front of him/her, not the accuracy of the content of that evidence, a doctor's opinion or statement), failure in the “Duty to Assist” except in the most extraordinary cases (where evidence available at the time of the decision were clearly shown that there was no doubt in any ones mind that the claim would have been decided differently if it had not been for the failure of the “Duty to Assist”), and changes in diagnosis (meaning a new medical diagnosis that “corrects” an earlier diagnosis), An example of a claim that would demonstrate a CUE; A veteran is awarded service-connection for IVDS and is awarded a 20% evaluation based on forward flexion of 20 degrees. The C&P exam and the whole medical record are silent for any duration of incapacitating episodes and any other measurements for range of motion. This would be a CUE because the rating criteria specifically states “forward flexion of the
thoracolumbar spine 30 degrees or less” would be assigned a 40% evaluation. Now if there was some other forward flexion measurements noted in the rest of the medical records, then this would not necessarily be a basis for a CUE because the RVSR may have based his/her decision on the other forward flexion measurements, which may have more accurate portrayed the current overall limited range of motion.
CUE’s are actually relatively rare, but when they do happen, the majority involves effective dates (EED). The effective date is the date VA determines when compensation payments are to begin. Generally, this is the date the veteran submits a claim.
Reduction in current awards:
If you are already receiving disability compensation from VA for a disability or disabilities and the VA wants to reduce those awards, the VA will send you a “proposal to reduce” letter showing the proposed action (Proposed rating they want to assign and the effective date of the reduction). This is just a proposal and cannot be appealed. Once you receive a “proposal to reduce,” you have 60 days from the date of that proposal to submit any additional evidence to the Regional Office stating why you think your evaluation shouldn’t be reduced. After the 60 day period is up, a RVSR will make a decision whether to actually reduce the award(s) or maintain the current rating as is. Once the RVSR makes a decision, they will send you a rating decision detailing their decision. If the RVSR decides to reduce the award(s), then the veteran has the one year period to submit a Notice of Disagreement (NOD) to start the appeals process, which is outlined above.
If you want to make the VA hold off on reducing the monetary amount on the proposed date, you can file a request for a hearing. This must be done in writing within 30 days of receiving the “Proposal to Reduce.” Once you have submitted a request for a hearing (just a simple letter as there is no prescribed form) the VA cannot reduce the evaluation on the proposed date until the hearing is held, regardless of how long it takes to have that hearing.
Pyramiding is the prohibition of assigning more than one evaluation per bodily etiology based on the same symptoms. 38 C.F.R. §4.14 states;
“The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided.”
The VA compensates a veteran for symptoms of residuals from injuries or diseases suffered to a body part while on active duty, not the number of injuries or diagnosis to a particular body area. For example, if a veteran has a lower back disability, let’s say IVDS with a scoliosis. The scoliosis would not be rated separately because it is also within the lower back. It would be “lumped” together in the rating with IVDS. Having said that, the lower spine (Lumbar and Thoracic) and upper spine (Cervical) can be rated separately, because they are two separate moving parts of the spine. Another common one that veterans seem to misunderstand is with mental disabilities. A veteran can be only compensated for one mental disability at a time. For example, if a veteran has PTSD and Depression, the VA would determine which of the two warrants the higher rating and “lump” the lesser one with the other.
There is one joint in the body that can have more that one rating without pyramiding. That’s the knee. The knee can obtain two ratings, such as limited range of motion and lateral instability as long as the second one is compensable at the 10% rate or higher. For further reference see VAOPGCPREC 23-97 and VAOPGCPREC 9-98.
Individual Unemployability (IU) or also known as Total Disability due to Individual Unemployability (TDIU) is a rating that pays veterans at the 100% rate who do not meet the 100% criteria according to the 1945 Rating schedule because they are unable to secure and maintain a substantial gainful occupation due to their service-connected disability(ies). The requirements needed to be considered for IU are spelled out in 38 C.F.R. §4.16. There it states;
“§4.16 Total disability ratings for compensation based on unemployability of the individual.
(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided, That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:
(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,
(2) Disabilities resulting from common etiology or a single accident,
(3) Disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,
(4) Multiple injuries incurred in action, or
(5) Multiple disabilities incurred as a prisoner of war.
It is provided further that the existence or degree of non service-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. (Authority: 38 U.S.C. 501(a))
(b)It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-scheduler consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.
[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996]”
One thing to keep in mind is that if a veteran doesn’t meet the scheduler requirements stated in sub paragraph (a), there is still the possibility of obtaining IU under sub paragraph (b). However, considerations under sub paragraph (b) rarely happen because, first, the RVSR must think you are unable to obtain and maintain a substantial gainful occupation due to your service-connected disabilities, which becomes a judgmental call on their part and, second, if the RVSR thinks you can’t work because of your service-connected disabilities, he/she must submit the claim to the Director of Compensation and Pension in Washington, D.C. for extra scheduler approval.
Having said all of this, a veteran still should file the application for IU (VAF 21-8940) if they are unable to work because of their service-connected disability, regardless of their rating percentages. I say this because when a veteran submits VAF 21-8940, it also acts as a claim for an increase in evaluation. If the veteran does not meet the scheduler requirements stated in sub paragraph (a) and submits the IU application, the VA will first see if the disability(ies) warrants an increase in evaluation. If so, they will determine whether the increase then meets the scheduler requirement, and if they do, then VA will address the issue of Individual Unemployability. By submitting VA Form 21-8940 when one is unable to secure and maintain a substantial gainful occupation die to their service-connected disability(ies), regardless of their rating percentages, they protect the earliest effective date possible.
If you decide to apply for IU, there are a couple of things you can do to speed the process up a little bit. When sending in VAF 21-8940, you should have each of your former employers from the last five years fill out and sign VAF 21-4192 and then attach them to the IU application. Also, if any of your private physicians can write statements concerning you being unable to work because of your service-connected disabilities, they will help and should also be attached to the IU application.
Note: Your service-connected disability(ies) must be the sole reason for being unable to work. If there is any non service-connected disability(ies) involved, then a physician will need to make a statement as to why the non service-connected disability(ies) are a non factor in you being unable to work.
Independent Medical Opinions by your private physician:
An Independent Medical Opinion (IMO) from a treating physician is in many instances a critical part of a veteran’s disability compensation claim. An IMO may sway the “benefit of the doubt” in favor of a veteran’s claim, or it may actually be the missing ‘link’ or nexus in a claim. When a veteran asks his or her physician to compose an IMO, there are a couple of things that should be noted in it. One of most important things that should be done and mentioned in the IMO is that the medical professional has reviewed the entire medical record including the veteran’s SMR’s. The medical professional should also state his or her area of expertise and additional training. For example, if the doctor is board certified in radiology, they should state that; especially when rendering any comments in regards to radiological film studies. Also, it is very important that the physician give their rational as to why they have come to a certain conclusion. The physician, when giving his/her rational, should also cite any relevant medical literature that may support the findings. By doing all of this, the IMO becomes probative. There is also certain language the physician needs to use when opining whether or not the disability(ies) at hand is/are related to the veteran’s service. The following phrases are from the Department of Veterans Affairs “Clinician’s Guide for Disability Examination;”
"is due to" (100% sure)
"more likely than not" (greater than 50%)
"at least as likely as not" (equal to or greater than 50%)
"not at least as likely as not" (less than 50%)
"is not due to" (0%)
The phrase “at least as likely as not” is the legal phrase that is needed for VA to award service-connection for a particular disability based on the “Benefit of the Doubt” when an IMO should be the deciding factor in the evidence of record.
Note: You shouldn’t send your regional office any medical articles printed from the internet. They only pertain to the general population and aren’t afforded very much weight when they are being evaluated by the decision maker. The VA needs something from a doctor that states your disability(ies) are related to your service, not something meant for the general public.
Reasonable Doubt rule:
The Reasonable Doubt rule is one of the most important liberalizing rules that VA uses to grant veterans benefits and is defined under 38 C.F.R. §3.102. The Reasonable Doubt rule means that when there is an equal balance of evidence for and against the claimant, that the claimant be awarded their claim. This is just like in baseball as the "tie goes to the runner." Keep in mind this doesn't mean that just because there is ten pieces of evidence for your claim and 10 against that you will be granted your claim. It means that after consideration by the decision maker at VA, they have weighed the evidence and in their judgment there is an equal balance, then they must resolve reasonable doubt in the claimants favor. It also doesn't mean that if, for example, there is 5 pieces of evidence in favor of a claim and only one against, that a claim will automatically be granted because there is a preponderance of evidence (meaning more evidence in favor of the claim than against) in your favor. The decision maker must still weigh the probative value of each piece of evidence and determine the weight of each piece in relationship to each other and the claim, and then reach a decision as to whether there is a balance of evidence for the claim and against the claim based on the weight given to each of that evidence.
Note: The resolution of the Reasonable Doubt doctrine can not be the basis for a Clear and Unmistakable Error (CUE). Since the Reasonable Doubt doctrine is based on Judgment made by a decision maker, it cannot be a basis for a CUE.