service-connected disability compensation - purple … · vets entitled to compensation for...

Service-Connected Disability Compensation

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Vets entitled to compensation for disabilities incurred in or aggravated during active military, naval, or air service

Service Department findings are binding on VA

Service records authoritative of whether individual served & dates of service

Entitlement to Compensation: General Requirements

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2 Major VA Disability Benefits

Service-connected (“SC”) compensation

Needs-based, non-SC pension


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5 Elements of Disability Compensation Claim

Veteran Status

Existence of current disability

Connection between service & disability

Degree of disability

Effective Date of benefits


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Record must contain diagnosis by medical professional

Claimant must have the disability at time of filing or during pendency of claim

Disability may resolve prior to adjudication

VA has duty to assist – may be obligated to provide free VA exam

First of Three Requirements: Evidence of Current Disability

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Great weight on vet’s military personnel, medical records

VA must consider lay evidence

No requirement that injury be confirmed in military records

Lack of medical records corroborating lay evidence may be a factor weighed against the lay evidence, but absence of medical records alone does not make competent lay evidence not credible.

See Buchanan v. Nicholson, 451 F.3d 1331, 1335-1337 (Fed. Cir. 2006).

Second of Three Requirements: Evidence of Incident, Injury, or Event

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Relaxed evidentiary standard for combat vets –

See 38 U.S.C. § 1154(b).

Advocacy advice:

Check DD-214 for receipt of Purple Heart Medal, Combat Infantryman Badge (CIB), Combat Action Ribbon (CAR).

Check elsewhere in service personnel records for participation in campaigns/expeditions – not determinative of combat, but must be considered by VA.

See VA Gen. Coun. Prec. Op. 12-99 (Oct. 18, 1999).

Second of Three Requirements: Evidence of Incident, Injury, or Event

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VA must consider all 5 theories when adjudicating claim for SC

38 U.S.C. § 5103A – VA must make reasonable efforts to assist in development

Unless no reasonable possibility assistance would aid in substantiating claim

Five Ways to Establish Service Connection

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Direct Service Connection

Aggravation

Statutory Presumption

Secondarily

Caused by VA Medical Treatment or Vocational Rehabilitation

The Five Theories

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38 C.F.R. § 3.303 – General provisions related to direct SC

To establish direct SC, you need:

1. Medical evidence of a current disability; and

2. Lay or medical evidence of a in-service incurrence of a disease, injury, or event; and

3. Medical evidence linking the current disability to the precipitating disease, injury, or event in service.

1st Theory: Direct SC

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Service Treatment Records (STRs) may show manifestation or diagnosis of condition in service

Or, a medical opinion may demonstrate that

The incident in service caused vet to eventually suffer from disability, OR

That the disability otherwise was incurred in service


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Delayed Direct SC

SC established if event in service caused vet to suffer disability/disease years later

Even if there was no actual manifestation in service

Usually requires medical opinion linking incident in service to current disability

See 38 C.F.R. § 3.303(d)


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Chronicity and Continuity

Chronic Conditions –

If condition shown in service determined "chronic" (lasting, of long duration) …..

Subsequent manifestations of same at any later date are SC unless clearly attributable to intervening causes


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Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)

Chronicity (and continuity of symptomatology) are limited to those chronic conditions listed in 38 C.F.R. § 3.309(a).


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Chronicity and Continuity Continuity of Symptoms (COS) – only required where

condition is not chronic In other words, if the condition was noted during service (or in

presumptive period), but is not a chronic condition, then you can use COS to establish SC

This is an alternative path to SC

Where condition is one “as to which a lay person’s observation is competent,” medical evidence of “noting” not necessarily required


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Where condition noted during service is considered "acute"

(having short course) and not chronic… In most cases claimant needs medical evidence linking current

condition to acute service condition


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Look to:

38 C.F.R. § 3.304(b) (for disabilities resulting from a period of war or service after 1/1/47), and

38 C.F.R. § 3.306.

If vet shows worsening of condition that pre-existed service, then “presumption of aggravation” applies

2nd Theory: Aggravation

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If presumption of aggravation applies, then VA must show no actual aggravation

By showing “increase in disability due to natural progress of disease”

VA needs clear and unmistakable evidence required to rebut presumption of aggravation


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Presumption of Soundness - Unless entry exam indicates otherwise, VA required to presume vet in sound condition when entered service

Rebutting Presumption of Soundness: VA must show clear and unmistakable evidence that:

1. Condition pre-existed service AND

2. Not aggravated during service


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Chronic and Tropical Diseases:

Must manifest to a degree of 10% within 1 year of discharge

Lay evidence can be sufficient to show manifestation within 1 year

Does not require medical diagnosis within 1 year of discharge

Chronic diseases – arthritis, psychosis, some cancers, and others (§ 3.309(a))

Tropical diseases – malaria and others (§ 3.309(b)).

3rd Theory: Statutory Presumption

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Presumption of SC may be rebutted by affirmative evidence to the contrary,

or

Evidence showing the injury/disease was actually caused by post-service injury/disease


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Presumptions for POWs: diseases common among prisoners of war (POWs)

Must manifest to degree of 10%


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Examples of POW illnesses:

Psychosis,

Anxiety,

Depression,

Post-traumatic osteoarthritis,

Atherosclerotic heart disease or hypertensive vascular disease

Including myocardial infarction (heart attack), congestive heart failure, arrhythmia

Full list at 38 C.F.R. § 3.309(c)


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Gulf War presumption

See 38 C.F.R. § 3.317

Must manifest to degree of 10% before 12/31/16

Medically unexplained chronic multisymptom illness (such as CFS, fibromyalgia, functional gastrointestinal disorders) or

Chronic undiagnosed illness manifested by signs or symptoms including but not limited to, fatigue, skin problems, headache, muscle pain, joint pain, neurologic symptoms, respiratory symptoms

Infectious diseases (such as West Nile virus, visceral leishmaniasis, malaria, and others – there are 9 total)


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Gulf War presumption (continued)

Vets with service in the Southwest Asia theater of operations during the Persian Gulf War

Must have served between August 2, 1990 & present.

Vets with service in Afghanistan (after September 19, 2001) are only entitled to presumptive SC for the 9 listed infectious diseases.


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Radiation-Exposed Veterans:

SC may be granted for radiation-exposed vets suffering from diseases linked to radiation exposure

Full list of diseases is at

38 C.F.R. § 3.309(d) and

38 U.S.C. § 1112(c)


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Exposure to Herbicide Agents (Agent Orange):

SC based on presumption for vets who served in Vietnam AND

Have a listed disease AND

Meet other requirements as to onset of disease & degree of disability

Vietnam Service

Includes service in waters offshore Vietnam only if vet

Set foot on land OR

Served in brown water OR

Ship docked in Vietnam

See 38 C.F.R. §§ 3.307; 3.309(e).


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Presumptive SC for Amyotrophic Lateral Sclerosis (ALS or Lou Gehrig’s Disease)

Applies to claims received by VA on or after 9/23/08

Vet who served 90 days or more continuous active service (not “active duty training”) entitled to SC if ALS develops any time after separation

See 38 C.F.R. § 3.318


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For success on SC claims via presumption, condition must manifest, but not necessarily be diagnosed, within the presumptive period

In most cases, vet must have served on active duty for 90 continuous days to be eligible for SC under presumption

NOTE: 90-day requirement does not apply to POW presumptive conditions or herbicide-related presumptive conditions


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Vet may be awarded SC on secondary basis by demonstrating condition caused by or linked to SC condition

See 38 C.F.R. § 3.310.

4th Theory: Secondary SC

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If SC condition causes or aggravates secondary condition, secondary condition may be SC i.e., medical evidence shows that vet’s hypertension is

caused by his SC diabetes Then, hypertension can be granted SC on secondary

basis

Can also have secondary SC via aggravation See Allen v. Brown, 7 Vet.App. 439 (1995)


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Secondary SC granted via aggravation Vet compensated for % of disability over and above %

that existed prior to aggravation

Not relevant how long after service secondary

disorder manifested


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Secondary SC may be established for mental condition caused or aggravated by a SC physical condition

Example - SC for depression caused by chronic pain

Secondary SC may also be established for physical condition caused by SC mental condition


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Disability caused by VA medical care or vocational rehabilitation (“voc rehab”) may be treated “as if” the disability is SC

38 U.S.C. § 1151 requires either

Fault by VA (negligence, lack of proper skill, carelessness, error in judgment) or

Accident by VA (lack of foreseeability) or

Lack of informed consent

5th Theory: Caused by VA Medical Treatment/Voc Rehabilitation

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38 U.S.C. § 1151 (continued)

Duty to assist as provided in 38 U.S.C. § 5103A applies

Trafter v. Shinseki, 26 Vet.App. 267 (2013)


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If VA negligence is a factor, claimant can file a claim under Federal Torts Claims Act (FTCA)

Claimant should consult an attorney re FTCA claims

Pursuing both avenues simultaneously is advised


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