Cole Law Group Blog
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.