What are some Examples of Typical Veterans Compensation Claims?
We include here some examples to help you understand various types of Disability Compensation claims. They include presumptive service connection, direct service connection and secondary service connection claims.
Example of Direct Service Connection with Continuity of Symptoms
Let’s go over with you a hypothetical application for direct service connection where a medical opinion would likely not be required. This is because the claim is related to being in combat which does not usually require medical records from service. There is also evidence of the continuity of symptoms from discharge that can be tied directly to the combat in service. It is unlikely that VA would want a medical opinion to establish service connection as that can be inferred from the evidence. On the other hand, with this case VA will order a medical examination to complete a number of DBQ’s related to the claim and it is becoming common practice for the adjudicator to also request an opinion as part of that examination. Let’s go over the case.
A combat veteran from the conflict in Afghanistan is claiming 4 different disability events. The first is a cervical spine injury due to whiplash from a vehicular accident in service, the second is a lumbar spinal injury incurred while moving a wounded comrade out of harms way, the third is PTSD and the fourth is a result of the other 3 – a claim for individual unemployability. Except for the accident, none of the other incidents are included in medical records from the service.
Each of these events has numerous additional disability issues. The cervical spine injury has resulted in limited motion of the head, static pain, numbness, pain and weakness in the right arm. The lumbar spinal injury has resulted in limited motion from back pain, myofascial pain in the buttocks and down the back of the legs and weakness in the legs. PTSD was a result of a stressor in combat. And finally individual unemployability is a result of not being able to maintain gainful employment because of all of the other issues combined. These combat related disabilities do not require medical evidence from service as long as the lay statement is consistent. This is an exception in the rules for combat veterans only. In this case, we will use 4 different VA 21-4138’s for each event. There are at least 8 or 9 individual disability issues. Please note from the illustration shown here, that when you apply you will not list the issues on the 21-526 EZ, but instead use our method of forcing VA to read a more thorough description in order to force the adjudicator to consider all of the elements of the claim.
Direct Service Connection Established by Secondary Service Connection Later in Life
This is an important hypothetical case study as it illustrates the crucial role of a lay testimony in establishing the claim. In this example, the veteran never made claim for direct service connection as he never felt he was disabled enough. On the other hand, his service-connected injury resulted in secondary disability which has become disabling. Under the regulations, VA does not require the veteran to first establish direct service connection and then establish secondary service connection. The secondary service connection automatically establishes the direct service connection even though it was never filed. Here is a summary of the veteran’s lay testimony which in this case is crucial to establishing the claim.
I injured my foot severely when I was in the service in 1975 at Fort Benning, Georgia. This required surgery to repair the foot, but it did not heal properly and over the years I have not been able to walk properly because of the foot injury. I am furnishing the service medical records from that incident. The inability to walk properly has put undue pressure on my left hip and my orthopedic doctor tells me that my hip is deteriorating because of this foot injury. He also tells me that this hip deterioration is a direct result of the foot injury that happened while I was in the service. He has provided a letter stating this fact that the foot injury and the hip deterioration are service-connected and detailing my hip condition and the causes of it. I also include my current medical records relating to the foot injury and the hip condition. I also include the pertinent Disability Benefit Questionnaire for hip condition filled out by my orthopedic doctor.
Again, notice what we have done in identifying the claimed disability on VA form 21-526 EZ. We again have used our method of forcing the adjudicator to read this more detailed description on an attached VA form 21-4138 so as to make sure that the claim is not denied. Without the veterans statement establishing a potential claim for direct service connection, the meager 76 characters allowed on the form 21-526 EZ would probably not have been sufficient for VA to understand this claim and it likely would have been denied.
Establishing Service Connection with Scant Evidence of Incurrence in Service
There is a category of claims where there is no direct evidence of any injury, illness or aggravation in service but symptoms can occur many years after discharge that can be linked to military service. These are typically claims for hazardous exposure where the initial exposure produced no symptoms but over the years eventually resulted in cancer, organ problems, debilitating illnesses or diseases or direct disabilities such as hearing loss. Hazardous exposure could include such issues as harmful sounds, vibrations, pressure changes, hazardous chemicals, harmful smoke or vapors, asbestos, extreme heat or cold, radical environmental exposure, radiation, toxins, carcinogens and other possible agents that could result in development of disease or disability.
Many of the presumptive service connection claims are of these type. However, we are addressing here direct service connection claims where we need to prove a Nexus between the current condition and what was allegedly incurred in service.
Hearing loss is a good example of this type of claim. As of 2017 – out of a total of 4,552,224 veterans on claim for Compensation – 2,944,565 veterans were receiving benefits for hearing loss or tinnitus or both. This represents 64.7% of all veterans on claim for Compensation. Hearing loss due to noise exposure or sudden pressure changes, very rarely shows up during service and often shows up later in life for elderly veterans.
Late-development hearing loss due to noise exposure requires evidence of an assignment in service that could have resulted in the hazardous exposure and an opinion from a licensed medical professional that the current hearing loss is service-connected to noise or pressure change exposure experienced in service.
Noise induced hearing loss almost always includes tinnitus. There is currently no medical test for tinnitus and VA must take the word of the veteran that he or she has tinnitus. Under the reasonable doubt rule found in 38 CFR 3.102, if there is no adequate evidence for or against an award decision VA must grant the award to the veteran. A claim for tinnitus results in a 10% disability rating.
Presumptive Service Connection leading to Secondary Service Connection
Secondary service-connected claims and requests for increase in rating are the most prevalent types of claims VA receives for compensation. In 2019 the department anticipates that 74% of all applications will come from veterans who are already receiving benefits. The other 26% of applications are original claims or other issues that need to get solved.
This one is an example for secondary service connection. The veteran is currently on claim for type II diabetes at 40% due to requiring insulin with a restricted diet and regulation of activities. He was stationed in the Republic of Vietnam from 1969 through 1970 and after 2 years of service he was discharged honorably.
He developed type II diabetes in 2008. In 2012 he discovered that he was entitled to Compensation due to his being presumed to have been exposed to herbicides (Agent Orange) while he was stationed in Vietnam. Type II diabetes is a presumptive condition for exposure to Agent Orange. After submitting a copy of his discharge, application for Compensation, evidence of his service in Vietnam and his current medical records to that point, he was awarded Compensation at 20% based on his management of diabetes at that time. He did not have to prove service connection. At the time, he was maintaining control of the disease with diet and oral medication.
In 2017, due to a worsening of his diabetes, he requested a reevaluation of his rating based on submission of a new claim as well as his medical records at that point. He was awarded a 40% disability rating as of 1 year previous to his effective date of this application due to his requirement for insulin injections, restriction in diet and regulation of activities. He can only go back 1 year previous to the effective date even though the new requirement for insulin occurred 2 years prior.
In 2018 he stepped barefooted on a sharp object which led to in an infection in his foot. His medical team was unable to control the infection primarily due to his diabetes. The staphylococcus infection spread to the bones in his feet resulting in chronic osteomyelitis. Unable to stop the spread of the condition, his medical staff amputated his foot above the ankle.
He is currently applying for secondary disability. Secondary disability is a non-service-connected disability proximately due to a service-connected disability – which in this case is type II diabetes. He will need to submit a new application with medical records and an opinion from his doctor that the amputation is proximately due to the diabetes. If he does not submit such an opinion, VA will order an examination to obtain that opinion.
Loss of a foot is rated at 40%. He will retain his current rating of 40% due to the diabetes and a new rating of 40% which results in a combined rating of 70%. Individual ratings are not additive so the combined rating is not 80% as you would expect. However, this new combined rating of 70% with at least one individual rating of 40% allows him to apply for individual unemployability which if granted will pay out at 100%. He can be considered unemployed even if he is retired. In addition, being paid at 100% for individual unemployability will also allow him to qualify for SMC schedule S if he is housebound as well.
Requesting an Increase in Rating
Here is an example of the second type of claim that together with claims for secondary disability, result in about 74% of all applications for compensation. This is a claim for an increase in rating.
The veteran retired in 1985 after 25 years of military service in the Air Force at the age of 44. He originally started his career in aircraft maintenance and eventually became an NCO supervisor of an Air Force aircraft maintenance squadron. In 2010 he was diagnosed with an aggressive form of prostate cancer. Over a period of a year, he received a radical prostatectomy and was treated with directed beam radiation therapy which put the cancer in remission. When he developed cancer, he submitted a claim for service-connected disability based on his exposure to aromatic hydrocarbon solvents that during his early years were used in aircraft maintenance. After 2 years of fighting VA with medical records, service personnel records, numerous lay statements and several private medical opinions he was awarded service connection for his prostate cancer.
He received an initial award and payment at 100% disability for the year of treatment. Based on a later reevaluation, his rating was reduced to a combined rating of 40% due to a 20% rating for frequent voiding and a 20% rating for incontinence due to the prostatectomy. His military retirement pay has also been reduced by the equivalent amount of VA disability pay due to the concurrent payment rule.
He was recently diagnosed with metatastic prostate bone cancer. Although the cancer was in remission, it has come back in a different form by moving to his bones. He is undergoing treatment which includes directed beam radiation and androgen hormone therapy. To increase his rating to 100%, while he is receiving treatment, he must produce medical evidence of his new condition, the treatment he is receiving and his doctors statement verifying that the prostate bone cancer is proximately due to a new manifestation of his original prostate cancer. He will also receive 100% of his military retirement pay because his new combined rating will exceed 50% and under the rules there can be no offset as when the combined rating is less than 50%.
Please refer to the table of contents in the top right column of this page for more topics on VA Disability Compensation.
TABLE OF CONTENTS
- What is Compensation
- Eligibility for Compensation
- Entitlement for Compensation
- Income Rating Levels
- Presumptive Service-Connected
- Direct Service-Connected
- Secondary Service-Connected
- Common Compensation Claims
- Claims Taking Too Long
- Shorten Claim Decisions
- Options for Bad Decisions
- Claimant Dies before Decision
- Determining Disability Ratings
- Examples of Claims
- Aid & Attendance Allowance
- Other Benefits for Claimants
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