VA disability law can be daunting for many eligible veterans who want to submit a VA disability claim or wish to appeal a negative disability determination. One of the main concepts that is difficult for service members to understand is which injuries or illnesses VA disability will cover. The answer is “only those disabilities that the applicant can prove are service connected.”¹

What Is Considered a Service Connected Injury?

During my experience representing disabled veterans, it has become apparent to me that many VA disability claims are denied because the VA has determined the injury or illness is not service connected. Service connected means “an injury or illness that was incurred or aggravated during active military service.”² In VA decision letters language similar to the following is often used:

To establish direct service connection for a claimed injury or illness, objective evidence must show a diagnosis of a current disability that is related to a disease or injury incurred in or aggravated during active service; or that manifested itself to a compensable degree within one year from the date of discharge.³ The VA examiner will determine that a claimed injury or illness is service connected if the examiner opines that the disability is at least as likely as not (50% probability or greater) caused by or a result of active military service.

Hypothetical Example

The following hypothetical scenario may be helpful to illustrate the true significance of the term service connected injury. Let’s say that Veteran Smith served eight years on active duty in the army. Smith had a history of seeing military doctors occasionally for various minor injuries and illnesses. One day, Smith damaged his right knee while executing a parachute jump during his service. Upon leaving the military, his right knee became much worse.  He is now required to wear a knee brace on occasion and has stopped running due to pain in his right knee.

Smith also has other injuries or illnesses that could be the result of military service. When he left the Army, Smith considered himself healthy so he did not apply for VA disability. However, recently Smith’s injuries have made performing his job much more difficult, and he is not sure he can continue working in his current physical condition. Smith’s additional health problems include difficulty sleeping, lower back pain, and ringing in his ears (tinnitus). He is considering applying for VA benefits yet is unsure which benefits may be service connected.

As a first principle, Smith should apply for VA disability for all current injuries or illnesses that he believes could be related to military service. Under this hypothetical, Smith can apply for disability based on four conditions: right knee pain, sleep difficulty, lower back pain, and tinnitus. After applying for VA disability benefits, Smith will be scheduled for examination by a VA doctor in order to confirm current diagnoses. It is the VA examiner’s duty to determine which are service connected.

Smith’s right knee pain should be found as service connected based upon the fact that he was injured in the parachute jump and military medical records should support that claim. Regarding sleep disfunction, the VA would likely want Smith to engage in a sleep study to confirm that this is currently an issue. Based upon our hypothetical, it is questionable whether Smith’s lower back pain is related to military service. Parachute jumping is obviously a dangerous activity which may cause many problems such as lower back pain. However, is there evidence that Smith suffered any lower back pain during his time on active duty? There will likely be sufficient evidence to support tinnitus as service connected if Smith was exposed to loud noise as a result of his military service. Most military service members are exposed to loud noise during their time in service and recent litigation has highlighted the problem. ⁴

How Can I support My Claim for a Service Connected Disability?

The best support for a service connection disability is a record of treatment while on active duty for an issue related to the claimed injury or illness. In Smith’s case, that is the service connection of the parachute accident in which he injured his right knee. The most difficult claim for him to establish as service connected in the above scenario would be his difficulty in sleeping, especially if he was never seen by a military medical provider for that complaint during his time on active duty and can produce no military medical documentation as evidence. Veterans may also use affidavits of knowledge provided by someone that has direct knowledge of the veteran’s medical issues based on serving or interacting together to provide lay evidence of current injury or illness or the first occurrence of the injury or illness.

Can I Apply for Service Connected Disability Benefits After I Am Discharged?

Earlier in this article I referred to language that is typical in a VA decision letter. It is pertinent to note that the VA requires objective evidence that shows a current disability is related to a disease or injury that occurred during or was aggravated by active service  or that presented itself within one year from the date of discharge. Thus, military service members who are nearing the completion of their time in service should strongly consider a full medical examination within one year of the completion of their service. If this examination shows a current injury or illness that is connected to military service, such a diagnosis may provide support for the applicant to apply for VA disability. Veterans may apply for VA disability at any time. There is no statute of limitations for VA disability. Additionally, veterans that are denied disability claims may reopen the denied claim by submitting new and material evidence to the VA. ⁵

If you need help in filing a service connected disability claim or want to appeal a negative disability determination, call Cole Law Military Attorney Paul Tennison at 615-490-6020 for a consultation regarding your potential VA disability case. ____________________________

¹ See https://www.va.gov/opa/publications/benefits_book/benefits_chap02.asp

² Id.

³ See 38 CFR §§ 3.303, 3.304, 3.400.

⁴ See https://taskandpurpose.com/news/3m-earplug-defective

⁵ 38 CFR § 3.156 – New evidence.

The U.S. Department of Veterans Affairs administers disability compensation that veterans have for illnesses or injuries which were caused by, or have been made worse during, active military service. The compensation may include financial support and other benefits such as health care.  Click here for more information on eligibility requirements for VA disability.

If you believe you are eligible for Veterans Affairs disability, the first step is to gather any supporting documentation for your claim. You will need evidence such as military records related to the injury or illness at issue, your medical treatment records, and your DD214 or other separation documents. Fill out your claim form completely and include all the relevant evidence. Today, you have several options for how you can file a claim:

1. You can file online at https://www.va.gov/disability/how-to-file-claim/.
2. Mail the claim form in.
3. Apply in person.
4. Consult with a trained professional.

After filing the claim, you do not need to take any further action unless you receive follow up communication from the VA. According to the VA’s website 111.5 days is the average number of days it took the VA to complete disability-related claims in April 2019.

The Disability Decision Letter

The VA’s disability decision letter is organized in a format that has four major sections: 1) an introduction, 2) a decision, 3) a listing of evidence considered, and 4) reasons for the decision. When examining the decision letter you receive, the first thing you should do is read the letter to determine if there have been any mistakes made either by you in not including all relevant information, or by the VA in overlooking something that was included. For example, are the records correct in the introduction section that show the time you served in the military?  Or, what was the date you filed your original claim?

When reading the decision section, note the reasons the VA claims for their decision. Here the letter will describe if each claimed disability was granted, and if granted, the percentage awarded from 10% to 100% in increments of 10, or if the claimed disability was denied. The decision section is short, and only gives one sentence for each claimed disability.

When examining the evidence section, think long and hard about whether you have in your possession or believe other documents might exist that could help your case. Helpful evidentiary documents include your service treatment records, your VA screenings completed by a company contracted by the VA, VA forms that may apply (such as VA Form 21-series in support of filing for certain types of disabilities), your private medical records, X-rays, records of injury or illness while on active duty (such as reports from treatment at a troop medical center), physical profile information, or other military medical records.

The VA can only decide your disability claim based on the evidence they find and you find. Thus, if you were injured during a parachute jump in 2005, yet there is no record of this injury listed in the evidence section, then the VA has no way of knowing that such injury is service connected and will thus deny the disability claim(s) that were related to that parachute incident.

Reasons for Decision

The Reasons for Decision section is the longest portion of the letter from the VA. When reading that section, look for the regulations (CFR) that support the actions the VA takes. For example, the letter might have a section stating, “When an intent to file is properly submitted, and a substantially complete application for disability compensation and related compensation benefits is received within one year of the intent to file, the claim is considered filed as of the date we received the intent to file (38 CFR 3.400).” Thus, to understand where that provision comes from, you could read 38 CFR 3.400 which should state something similar to what is claimed in the letter. Read your evaluation percentages and determine if you agree with the findings of the VA. When the VA grants a disability rating, they explain the percentage granted and state what that finding is based on. They will then cite to the portion of the CFR that describes the criteria for that % of disability evaluation. They may state that a higher rating is not warranted because the evidence did not show that you had more serious symptoms.

A common reason many VA disability claims are denied is because the VA determines the injury is not service connected. They may use language such as, “No evidence shows this injury occurred while on active duty, and the post separation file is silent for those type of complains as well.” For the VA to award disability, you must show a nexus, or link between your claimed issue and an event, injury, or disease which occurred while in the service. Your treatment records during your time in service or within a year of completing the service should show a complaint, treatment, or diagnosis related to the disability for which you are applying. Importantly, even if your claim is denied, the VA will include favorable findings identified in this decision. These favorable findings could show that you do in fact have a diagnosis for the injury or illness for which you applied.

Systematic Approach for Appeal

Overall, the VA disability benefits decision letter may be difficult for many or most veterans to understand. However, by taking a systematic approach and breaking down the information that is provided in each section, you can better understand why the decisions were made the way they were in your letter and what you could do to best succeed on your appeal. As a military officer myself, I analogize this process to the Military Decision-Making Process (MDMP). During MDMP, one of the most important steps is mission analysis. This is where the team reads the mission that the higher headquarters has established, and they begin to dissect all the parts of the operation within the scope of their roles. Treat reading the VA letter as mission analysis. Find out if there is anything that should be included in your application that has not already been included. Find out if the VA made a mistake by overlooking an important piece of evidence. Perhaps you need to go to a civilian or VA doctor to be treated and can include this next visit in your appeal. If you disagree with the VA’s decision, consult with a close friend or an attorney experienced in VA disability appeals and brainstorm your plan of attack. Just as many military operations were not successful until numerous hours of planning before the attack, so too your VA disability appeal may require some strategic thinking before filing the appeal. This process begins by reading and understanding your VA disability claim decision letter.