An in-service injury or disease means that it generally must be documented in the veteran’s service treatment records (STR’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 independent medical opinion 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 four 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 a medical opinion stating 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 medical opinion establishing the nexus or "link" between the two . Another example of where a medical opinion 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 STR’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 a medical opinion 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 treatment records (VA will concede that the disability/disease was incurred while on active duty). 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.
To file a claim for disability compensation, simply fill out the VAF 21-526ez below and attach a copy of your DD214, any medical records since your discharge, to the form and submit it to VA.
A note on the above VAF 21-526ez; if are able to submit all needed evidence with this form, then you'll want to mark the box "Fully developed claim" in item 1 on page 8. If you do not have all of the evidence to substantiate your claim upfront and will be sending this material after submitting this form, then mark the box "Standard claims process" in item 1 on page 8.
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 so this simply fill out the above VAF 21-526ez 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 through the development phase. 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 either file a supplemental claim with "new and relevant" evidence, file a higher level review (HLR), or file an appeal (a Notice of Disagreement) with the BVA.
Supplemental claim (having VA re-adjudicate 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 expired, or you're still within the one year of the rating decision and you have "New and Relevant" evidence, you can request to have that claim be re-adjudicated. However, in order to do so, you must submit “New and relevant” evidence with the claim. This means evidence which is “new," or was not previously before the decision maker when they made their previous decision, and “relevant,” which is evidence "that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed." Once you have submitted “new and relevant” evidence VA will send out a rating decision as they would like an orginal claim or claim for an increase noted above. Keep in mind that by simply submitting "new and relevant" 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 have VA re-adjudicate a previously denied claim with "new and relevant" evidence simply fill out VAF 20-0995 and attach the "new and relevant" evidence to the form and send both to VA.
Misc. topics concerning disability compensation:
Adding your dependents to your disability compensation:
If you have a 30% evaluation or higher you should have your dependents added to your disability compensation. To do so, simply fill out VAF 21-686c and attach copies of your marriage certificate, copies of any divorce decrees nullifying any previous marriages from you and your spouse, and copies of any birth certificates of your minor children. You should also use this form to notify VA of any change in your dependency as well i.e. divorce or death of your spouse, marriage of a dependent child, or a school-age child no longer attending school.
If your dependent child turns 18 and subsequently attends a secondary school, you can have them re-added to your running award until they turn 23 or stop attending school, which ever occurs first. To add your school-aged child to your compensation simply fill out the VAF 21-674 and submit it to VA.
If your school-aged child is attending a foreign school, you'll need to submit an affidavit from the Governing authority of the school (not the school itself!) stating that the school in question is indeed accredited by them to offer the course, or courses, being taken by the school-aged child. If you are unable to obatin such a statement from the Governing authority of the school, you should contact the U.S. Embassy or Consulate in the country where the school is located and they may be able to assist in this statement.
The Compensation and Pension exam (C&P):
When you file an original claim for disability compensation, claim for an increase in evaluation, or sumbit "new and relevant" evidence for a supplmental claim, and VA determines they need to evaluate your claimed disabilities, they may schedule you for what's called a Compensation and Pension exam (known sometimes as a "C&P exam) with one of their physicians or a contractor.
These exams are designed to obtain the needed information required to evaluate the disability in question correctly according to the 1945 Rating schedule by the RVSR (Rating Veteran Service Representative). They are not for medical treatment! These exams generally either take place at the local VAMC or out-patient Clinic nearest the veteran's residence, or through a contract company (VES-Veterans Evaluation Services or LHI). When the VAMC or VES/LHI contacts you to schedule any needed exams, ensure you move heaven and earth to attend the scheduled exam(s)! If at all possible do NOT try and re-schedule any exam(s). Many times the VAMC or VES will say it isn't a problem and will tell you they will call you back with another appointment date, but then turn around and notify VA's regional office who requested the exam that you were a "no-show"! Then VA makes decision based on the evidence of record without the exam, which in many cases results in a denial of benefits because you failed to report for that scheduled exam! If this does happen you just can't call the VAMC or contractor to re-schedule the exam. You'll have to file a supplemental claim and have VA re-adjudicate it on that basis (i.e. the willingness to attend the needed exam as the needed "new and relevant" evidence). They will, generally, re-adjudicate the claim on the basis of your willingness to attend their exam and re-authorize the exam with the VAMC or contractor. Then the VAMC or contractor will again contact you to re-schedule the needed exam(s). To avoid this hassle and major headache, just attend the first scheduled exam.
When you go to these exams do not over exaggerate your condion! These examiners have been doing this for awhile now and can see right through it! Just ensure you portray your disabilities accurately, and ensure the examiner is aware of all your current symptoms. Remember, VA evaluates, or assigns, the disability percentage based on your current symptoms. So it is essential that VA is aware of all of your current symptoms. If you have any private treatment records outside of VA, you can bring these with you to the exam. However, be aware that the examiner is not obligated to look at them. They are there to make their own objective, independent, findings. If you want VA to consider your private treatment records when they make their decision, then simply submit them to VA as evidence.
If you're undergoing a C&P exam for any orthopedic condition, then make sure that when the doctor has you do any range of motion of the joint in question, you stop that movement at the point any pain, weakness, and/or fatigue starts, not after you cannot move the joint anymore! VA evaluates most orthopedic disabilities based on the objective limited range of motion of the joint at the point where pain, weakness, and/or fatigue starts (called the DeLuca criteria at VA) in degrees. You may be able to flex and extend your knee all the way with pain, but that is not what VA needs to know; they need to know at what point in this movement any pain, weakness, and/or fatigue starts! Although the C&P examiners are suppose to be trained to know this and to know at what point to measure any limited range of motion, many still do not and simply take any measurements at the point where the veteran cannot move the joint anymore because of the pain, weakness, and/or fatigue. To ensure your range of motion is recorded accurately make sure you follow this, so the RVSR can make an accurate evaluation on your claimed disability.
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 can 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 were 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 cannot form 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 accurately portrayed the current overall limited range of motion.
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 appeal that decision by choosing of the options noted above.
Pyramiding is the prohibition of assigning more than one evaluation per disability 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 only be 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 multiple 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.
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 your inability 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 your inability obtain and maintain any substantial occupation.
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 STR’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;”
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.