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.

Many service members understand the frustration of being wrongfully denied disability compensation from the Veterans Administration. In my experience I have observed veterans who became frustrated with the process and ultimately gave up. This is most unfortunate. If you have suffered an injury or illness due to your military service, you should be compensated under federal law. However, the failure of many service members to understand the VA system can cause self-inflicted problems.

I recommend the following five best ways to present persuasive disability evidence as an effective strategy:

1. Recognize your mission and ensure that everything you submit helps further your mission.
2. Tie your evidence to your military service.
3. Use the power of narrative to paint a compelling picture.
4. Understand the role of the VA claims examiner.
5. Use overwhelming firepower by finding multiple sources to support each of your claims.

Recognize Your Mission

Preparing for a VA case is like preparing for a military mission. The most junior soldiers have simple tasks in preparing for a mission, usually checking that they have all assigned equipment and that their weapons are functional and their vehicles are operational. At the strategic level, there is immense planning that occurs before military operations are conducted. The logistical and personnel challenges to move an army into a theater of operations is immense. Yet the individual soldier does not have to be concerned with all of that; he just focuses on his role to accomplish the mission. The military decision-making process starts with Step 1: Receive the Mission.

Now if you are a veteran applying for VA disability, your mission is to achieve the highest disability rating that your case warrants. You are not expected to know what disability percentages your disabilities warrant when first applying for VA disability. Instead, you should focus on applying for disability for every illness or injury that you are currently suffering from that was caused or aggravated during your time in service.

Tie Evidence to Your Military Service

The most persuasive disability evidence is that which is clearly tied to your military service. Let’s say, for example, that you were a paratrooper, injured your knee during a jump, and had no previous history of knee pain before entering the military. However, after the jump your military medical records documented time at sick call, surgeries, physical therapy, etc. These medical records are solid evidence that your injury was service connected.

Use the Power of Narrative

Do not forget the power of narrative. Storytelling is essential to the human experience. Write your VA injury statements in a way that tells a story. For example, “I was training for the Army 10 miler team in Germany and running significant miles each week. After the race, I suffered from runners’ knee in my right knee for several weeks and went to sick call.” This short narrative paints a picture of what happened and will help the VA examiner visualize the humanity in what occurred.

Recognize the Role of the Claims Examiner

Another important doctrine when preparing for military operations is to think like the enemy. This is so central to army doctrine that one of the primary staff positions is intelligence, where the primary focus during the planning cycle is to help the commanders and staffs understand the tactics, capabilities, and vulnerabilities of the enemy forces.

An understanding of what the VA examiners do is of similar value. VA examiners look at hundreds of applications each week. They see some that are poorly worded or illogical. They can be overwhelmed with their caseload. Many of them are patriotic, hard working Americans that take their role very seriously. Most of them do not have a significant science or medical background. Thus, if your disability is unusual, you will want to ensure you frame your medical evidence in a way that you think a layperson will understand.   

Use Overwhelming Firepower And Present Multiple Sources to Support Each Claim

Overwhelming firepower is a key component of many military operations. In the field artillery, we focus on massing indirect fire at critical points to destroy, neutralize, or suppress the enemy. The most effective modern military attacks include direct fire, indirect fire, close air support, naval gunfire, and whatever other weapons are available.

You can use a similar strategy to ensure that your evidence supports your disability claim. For example, suppose you are claiming PTSD. You should gather medical evidence from a treating physician to prove you have been injured and the extent to which that injury impacts your life. You could support this medical evidence with affidavits of knowledge from family or coworkers that testify to their observations of the impact your PTSD has on you. You can further support your claim by having your treating physician fill out a VA survey regarding your PTSD. Now, instead of a single piece of evidence regarding your disability claim, you have five data sources that all show  you should be given a high disability rating percentage.

In Conclusion:  The Road to Success

Keep these “5 Best Ways to Present Persuasive Disability Evidence” in mind as you work with the VA claims process, and you will give yourself the best chance of success. If you feel you are in beyond your depth and need some help, reach out! There are many organizations that volunteer to help veterans with VA cases.

Military Law Attorney Paul E. Tennison has over fourteen years of military experience, including time spent as a commissioned officer in Korea, Germany, and Poland. Paul understands the struggles that service members and veterans face when dealing with the VA. He has been personally involved in many cases where the VA ignored relevant evidence at the regional office level, and those are issues that Paul focuses on in VA appeals where he provides significant value to veterans. If you have been dealing with a difficult VA case, contact Paul at Cole Law Group in Nashville 615-490-6020 to learn how he can help you.

The Physical Disability Review Board was created by federal law with the passage of the Dignified Treatment of Wounded Warriors Act in 2008. The DTWWA made several significant changes to the care of wounded veterans. First, the law required the military branches to use the same disability determination rating scale as that used by the VA. Second, the law expanded the care available to injured service members after their military service. This included changes in treatment in military and civilian facilities for a variety of conditions, including Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD). Third, the new law required comprehensive plans to address TBI and PTSD. Fourth, the law directed the Secretary of the Department of Defense (DoD) to establish physical disability review boards to review disability determinations meeting certain criteria and timeline requirements. The law also addressed the quality of housing provided to patients by requiring improved standards.¹

After the law passed, the DoD issued instruction 6040.44 which “establish[ed] policies, assign[ed] responsibilities, and provide[d] procedures for PDBR operation and management as required by section 1554a of Title 10, United States Code.”² The PDBR’s mandate is to: “reassess the accuracy and fairness of the combined disability ratings assigned former service members” who meet certain criteria.³ Those criteria are summarized here:

1. Service member was separated with an original combined disability rating of 20% or less.
2. Service member separated between September 11, 2001, and December 31, 2009, due to unfitness for continued military service.
3. Service member was not originally found eligible for retirement. This includes Reserve component service members.⁴

The PDBR will review the disability determination to determine if the veteran should have been awarded a higher combined disability rating. The PDBR will look at evidence such as medical records from the veteran’s military record, medical records from civilian life before joining the military, a statement of the veteran, letters from the veteran’s military colleagues or family members discussing the veteran’s injury or illness, and a recent health screening of the veteran.

DoD Instruction 6040.44 contains several definitions which are useful for veterans considering applying to the PDBR.⁵ The section defines: “combined disability ratings; consistency reviews; construed cases; DES; PEB; physical disability; QAP; and VASRD.”

The benefits for a successful PDBR application can be substantial for qualified veterans. This includes:

1. Monthly disability retirement pay, retroactive to the date of the veteran’s discharge. The retroactive payment should be in a calculated lump sum. Then monthly pay will go forward. Please note that by law, veterans may not receive both VA disability pay and military medical retirement pay. There is a $1 for $1 trade amount by which the retirement pay is not actually collected by the veteran, but the VA disability pay is. This is still a good deal for the veteran in that VA disability pay is tax free while military retirement pay is taxable.
2. The veteran and her/his family will be eligible for DoD Tricare healthcare coverage, retroactive included. This also gives healthcare coverage to eligible dependents.
3. The veteran may choose to purchase the survivor benefits plan. This would require the veteran to pay retroactive amount to make coverage current.
4. The veteran would also have all the rights and privileges of a retired veteran, including space available travel, exchanges, commissaries, and whatever is recognized by states and private companies.

Hypothetical case A: John Doe separated from the Army in 2010 with a 20% disability rating. John was not originally eligible for military retirement. Can John apply to the PDBR? No. John may not apply because his discharge date of 2010 is after the limited timeframe of the PDBR. Note, John may be able to secure relief through other avenues such as an application to the VA for disability or a different Army review board.

Hypothetical case B: Jane Smith separated from the Navy in 2008 with a 40% disability rating. Jane was given a military medical retirement, yet she thinks it was not a high enough rating. Can Jane apply to the PDBR? No, Jane cannot apply because she was already given a military retirement. In order to dispute the rating given, Jane would have to apply to a different Navy review board. Jane also might want to apply to the VA for disability if she has not already done so. Also, even if Jane already receives VA disability, she may want to apply for other conditions if her disabilities have become worse.

Hypothetical case C: Steve Sergeant separated from the Marine Corps in 2005 with a 10% disability rating. Steve was not given a medical retirement. Can Steve apply to the PDBR? Yes, if Steve has not previously applied. The DoD interpretation of the DTWWA determined that each eligible veteran may apply to the PDBR only once. After that application, the Veteran may be able to apply to other service review boards or appeal the case to certain courts. The PDBR is required to provide a final determination letter at the end of the PDBR process that explains what recourse a dissatisfied veteran may have.

According to the PDBR fact sheet, there are an estimated 77,000 veterans that fit the PDBR eligibility criteria.⁶

See also: https://health.mil/Military-Health-Topics/Conditions-and-Treatments/Physical-Disability/Disability-Evaluation/Physical-Disability-Board-of-Review

If you think you may be an eligible veteran, I encourage you to contact me at 615-490-6020 or submit a question through our website to determine how you can get the benefits that you deserve.

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¹ https://www.congress.gov/bill/110th-congress/senate-bill/1606

² https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/604044p.pdf

³ Id.

⁴ Id.

⁵ Id.

⁶ https://health.mil/Military-Health-Topics/Conditions-and-Treatments/Physical-Disability/Disability-Evaluation/Physical-Disability-Board-of-Review