What is Direct Service Connection for VA Disability Compensation?
Direct service connection means that a current disability or disease is directly linked to incurrence during active duty service of a disease, injury or aggravation that led to the current condition.
Having met the eligibility requirements for the veterans benefit, there are three additional requirements for establishing direct service connection for a claim:
- Evidence of an injury, exposure, disease or aggravation that was incurred while serving in the Armed Forces.
- Evidence of a current disabling illness or condition that is suspected to have been caused by the in-service incurrence.
- A direct link between the current disability or disease and the illness, injury, exposure or aggravation that was incurred in service.
1. Incurrence in Service
Direct service-connected claims require that the veteran or the survivor on behalf of the veteran must provide evidence that a particular injury, exposure, or disease resulting in a current disability or disease was incurred while serving in the Armed Forces OR if that condition was pre-existing to entry in the service, it was aggravated through service. These claims do not require any specific amount of duty time as do the presumptive service connected claims.
Service Induction Examination – Presumption of Soundness
The veteran is presumed to be in sound condition after the induction examination except when defects, infirmities or disorders were noted in the records at entrance into service. Nevertheless, even though pre-existing conditions are not noted at entrance, VA still must provide clear and unmistakable evidence that the disease or injury did not exist prior to service and was not aggravated by service.
For those conditions that were known at entry, the Regional Office will establish a baseline for determining whether the pre-existing condition was aggravated by service based on the veteran's entire history of service medical records for that condition.
Accident, Injury or Illness as a Matter of Record – Personnel or Service Treatment Records STR
The Regional Office must review the evidence of record to include personnel and medical records, or as they are called "Service Treatment Records" (STR's), to ensure the injury occurred during service and in the line of duty. If the record does not exist, corroborative evidence can be used if it is consistent with the conditions that would have caused the accident injury or illness. Perhaps the veteran was treated for the injury or illness at a civilian location. If these records can be found, this can also provide the proper evidence. A sworn statement by the veteran is usually not acceptable unless other evidence can corroborate the sworn statement.
Unreported Accident, Injury or Illness
A discharge medical evaluation may uncover unreported accidents injuries or illnesses. It is not unreasonable to assume that the rigors of military service for certain assignments would result in back injuries, muscle injuries or other joint injuries. For various reasons, these injuries might go unreported. Perhaps illnesses are also unreported that could have a chronic effect many years after discharge.
Where any evidence from service records is lacking, it is up to the claimant to try and come up with enough evidence to provide a reasonable assumption that the existing disability was due to an unreported accident, injury or illness. This is a large burden of proof and it may not always be possible to win these kinds of claims. A sworn statement by the veteran alone without other evidence, is typically not acceptable unless accompanied by documents such as personnel records, squadron or battalion duty records showing temporary duty due to injury or illness or other medical records that might point to complications caused by the unreported accident, injury or illness even though medical records for the primary injury do not exist.
Exposure to Hazards or Stressors Resulting in Post Service Disability
Some exposures are already covered under presumptive service connection. These would include ionizing radiation, tropical diseases, prisoner of war, Agent Orange and other herbicide exposures, and to some degree posttraumatic stress syndrome which is not presumptive but in some respects is often acknowledged as occurring in service because of combat stress or the fear of imminent danger. Other exposures such as asbestos, loud noises, fumes, fuels and solvents, vibration, extreme heat, extreme cold and so forth are not considered presumptive.
On the other hand, when it can be shown that a current disabling condition is at least as likely as not the result of one of these kinds of exposures and that the claimant was indeed exposed because of duty assignment, these kinds of disability conditions are much easier to get acknowledged as incurred in service.
A sworn statement by the veteran is usually not acceptable by itself unless accompanied by other evidence. One example of this is a veteran who develops cancer due to exposure to carbon tetrachloride found in cleaning solvents used for various purposes by the armed forces. The cancer would have to be a known type caused by this carcinogen. If the veteran can provide lay statements as to working with the carbon tetrachloride – for example cleaning engine parts as the duty assignment of a diesel mechanic – and personnel records can back up this claim, that is likely enough evidence, along with a doctor's opinion for service connection, to result in a claim.
Another example of exposure to hazards is a hearing loss claim. There are numerous assignments in the military where exposure to noise or sudden pressure change could over time result in hearing loss. Matching the duty assignment to the probability of hearing loss is a huge step in getting a hearing loss claim even if medical records for treatment in service don't exist because the hearing loss was not manifest at the time.
Illnesses, conditions or injuries that are incurred in combat are generally treated in a more liberal manner as far as evidence of incurrence in service. Scars may be used as evidence of wounds, but they may not always be due to combat and thus corroborating evidence is necessary.
If the veteran participates in the Separation History and Physical Examination Program (SHPE), through the Department of Defense Separation Retirement, combat injuries or illnesses may show up in this evaluation. In the absence of any Service Treatment Records or discharge evaluations, lay statements from the veteran or other individuals corroborating the statements will be accepted that an injury or disease was incurred.
Lay statements also apply to conditions aggravated in combat, if the evidence is consistent with circumstances, conditions, or hardships of such service even though there is no official record of such incurrence or aggravation. For conditions incurred in combat, lay evidence should be sufficient by itself if it is consistent and plausible and not refuted by clear and convincing evidence to the contrary. In the case of combat, as long as there is a consistency in the lay statements and personnel assignments that the condition was incurred in combat, medical evidence is generally not required.
Aggravation of an Existing Condition during Service
Aggravation is covered under 38 CFR 3.306 and 38 CFR 3.307. Service Treatment Records must indicate an aggravation during the period of service. Temporary or intermittent flare ups of pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition has worsened. Rehabilitation from surgery shall not be considered as an aggravation. For a veteran entering the service with a hereditary disease, aggravation and thus service connection can be established if the disease manifests itself after entry on duty. A genetic disease such as Huntington's Disease that is predisposed for development is not service-connected.
2. Evidence of a Current Disabling Illness or Condition
Medical evidence is required for proving existence of a current disabling illness or condition that is suspected or known to be caused from active duty service. The Regional Office will usually want to see the VA healthcare medical file or the current private medical file of the claimant pertaining to the disabling illness or condition that is being claimed. You should be aware that the Regional Office does not want to see medical records that are not pertinent. They are useless and end up bogging down the decision process. It is important that the condition be persistent or long-lasting and not temporary in nature. VA will want to see evidence of the continuity of the symptoms of the disability or the condition from discharge or reasons why that is not the case.
Your current medical records pertaining to the disability may not actually identify a disability associated with your illness or other condition. In other words, your doctors may devote a great deal of information pertaining to diagnosis, treatment and prognosis but not even mention disability. This is also not always useful information as it requires VA to infer from the records that there may be a disability or there may not be.
On the other hand, such conditions as stage IV cancer or congestive heart failure or other debilitating conditions, carry with them an inferred disability and it is not necessary to know the symptoms resulting from these conditions as long as the specific treatment is listed which will be used for assigning a disability rating.
For most rating decisions, the rater has to determine a level of disability in percentage amounts. Many of the disability rating tables identify certain symptoms that relate to a level of disability such as 40%, 60% or 100%. In order to do the rating for certain conditions, the rating authority in the regional needs a listing of symptoms or what VA calls symptomology.
As a general rule, if medical records cannot establish the continuity and the nature of and chronicity of symptoms, the Regional Office will order a medical examination to produce an assessment of the condition or illness. The examiners are required to use forms for these assessments called Disability Benefit Questionnaires.(DBQ's) There are 69 of these forms, each corresponding to different types of diseases, illnesses or disabilities. The claimant also can submit his or her own DBQ's from treating doctors avoiding the need for VA to order an exam for this purpose.
3. A Direct Link between the Current Disability or Disease and the Illness, Injury, Exposure or Aggravation That Was Incurred in Service.
You are not eligible for benefits if you are not currently suffering from disability or a condition that is inferred to produce disability.
All Disability Compensation claims require a rating, but without disabling symptoms or treatments that infer disability, the rating will be 0%. As an example, most hearing loss awards without significant hearing loss and without tinnitus are rated at 0%. Or a presumptive condition for Agent Orange exposure, type II diabetes will receive a 0% rating if the diabetes is under control through exercise and proper diet. Don't make application if your condition is acute (temporary) or is not principally chronic – meaning that it persists over a long period of time. Your medical records or the medical assessment must reflect the ongoing continuity of your condition.
It is important to note that if you have a disabling condition that can be rated at 0%, you should definitely make application, as you have established service connection even though you will receive no money. This service connection could be very valuable later if your condition gets worse or causes a secondary disability that could be ratable and result in an award. It saves your going back and establishing service connection.
Establishing Direct Service Connection
Because direct service connection is not presumptive, a direct nexus or link between the current disability and any injury or illness or exposure in service that is claimed as the cause of the current disability must be established. There is no required time in service for receiving an award through direct service connection.
The disabling condition that the veteran is currently experiencing could have been caused by an illness, injury, or aggravation in the service. It could also have been caused by exposure to hazardous material or hazardous environment. A veteran seeking service connection for an existing condition, has several ways to prove the connection based on the place, the timing, or the circumstances of his service.
The evidence required can include lay statements, Service Treatment Records, private medical records, personnel records, naval group, squadron or battalion records, Disability Benefits Questionnaires and medical nexus opinion letters. Service medical treatment records (STRS) and personnel records are available from the National Records Center in St. Louis for providing this evidence.
As with presumptive service-connected conditions or diseases, you may also be required to show evidence of a continuity of symptoms if there is no record of those symptoms from previous years and the symptoms manifest many years after discharge – perhaps 30 or 40 years later. If there is no corroborating evidence from VA healthcare records or from private physician records, lay testimony can be very helpful here.
Medical opinions from licensed health care professionals are often needed to establish the link between a current condition or disease and the incurrence in service. The person providing the opinion will state that it is at least as likely as not that the incurrence in service directly led to the current disease or condition. A medical opinion requires not only a statement for service connection but also justification for the opinion.
We have listed below some of the various reasons as to why a medical opinion would be needed for a claim decision. Claimants can obtain their own medical decisions or allow VA to order them through a scheduled exam with a licensed health care provider. Allowing VA to order a medical opinion often results in an unfavorable decision. VA contract medical examiners are hampered by the system under which they operate and as a result their medical opinions are often inadequate, poorly written and incomplete.
When Medical Opinions Are Needed
This is not an all inclusive list but covers most of the situations where medical opinions would be needed to establish the nexus between the current condition and what was claimed to be incurred in service.
- Lack of continuous symptomology from service to present day, especially when it has been many years since discharge. Examples might be delayed development of PTSD or delayed development of musculoskeletal conditions from an in-service injury
- Indirect evidence of incurrence in service such as hazardous exposure, PTSD, sleep apnea, hearing loss or sexual assault
- When symptoms show up many years after discharge, and it is difficult to determine whether those symptoms are incident to aging or are service-connected. Such as cancer, heart disease, other diseases or hearing loss
- For any secondary service connected claim
- Work assessment or psychological assessment for PTSD or individual unemployability
- Claim for a current condition that does not appear to be service-connected to an incident in service
Adequate Verses Inadequate Medical Opinions
Based on court rulings, an inadequate medical opinion has little or no probative value for making a determination for service connection unless it is the only opinion available. Court rulings have established a standard for determining whether an opinion is adequate or inadequate. Here are the principles. If any of these principles is violated, the opinion can be considered inadequate.
- examiners need to consider lay statements describing relevant symptoms
- examiners need to provide clear conclusions with supporting data and a reasoned medical explanation concerning the service connection
- medical examiners may not decide the veracity of nonmedical facts
- a medical opinion is inadequate if it is based on inaccurate factual premises
- a medical opinion is inadequate if the examiner can't reach a conclusion
- examiners can't use an evidentiary standard greater than the reasonable doubt principle
- examiners need to address all legal theories of entitlement to service connection
It is highly unfortunate that contract examiners who provide medical opinions apparently are not aware of the rules above. We have seen a great many inadequate opinions ordered by the Regional Office which in many cases are unfavorable to service connection. Any claimant who relies on VA for a medical opinion and does not get a private opinion is at high risk for receiving a denial. Failure to meet any of the principles in the list above, gives you an advantage to challenge any medical opinion ordered through a VA medical exam. This is an extremely valuable weapon to protect you from a denial.
When you do challenge a contract examiner opinion, it is critical that you provide in writing, on a VA Form 21-4138, the reason that that opinion is inadequate. Your failure to challenge the opinion based on the elements above, will likely not allow you to prevail. It is essential that you point out the flaws – if there are any – in the VA opinion. If you cannot do this then you don't have a good case and you might want to give up your claim altogether.
Representatives from the Senior Veterans Service Alliance have experience in challenging poorly produced and inadequate medical opinions ordered by VA. It is our experience, that most examiner medical opinions ordered by VA are totally inadequate and typically result in denials.
Court Precedent Rulings on Inadequate Medical Opinions That Are Binding on VA
A medical opinion is adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)).
The opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Id. at 124. In order to fully inform the Board's decision, an opinion must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008).
An examination that merely lists facts and conclusions with no reasoned explanation connecting the two therefore lacks probative weight. Id (above)
The Principle of Reasonable Doubt
With some claims, a principal used by the rating activity in the Regional Office could come to your aid. It is called "reasonable doubt" and is found in 38 CFR 3.102.
"It is the defined and consistently applied policy of the Department Of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships."
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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