Service-Connected Compensation

Subject: - SERVICE-CONNECTED COMPENSATION
Date: Tue, 24 Dec 1996
The following was originated by Veterans Voice of Austin (vvoa.com) and posted to the Veterans News and Information Service (vnis.com)

Service-connected compensation is a monthly payment made by the VA to a veteran with a physical or mental disability that was incurred in or aggravated by service. The amount of the compensation is based on the level of disability suffered by the veteran, not on need or income or any other criterion. The greater a veteran's level of disability, the more compensation he or she will receive. The veteran whose knee was wounded in combat, and the veteran who injured a knee sliding into second base in a baseball game during active service, might both qualify for service connection (and possibly for the same level of compensation).

Some veterans file their own applications for benefits and turn to advocates only after their claims have been denied. Veterans are strongly advised to obtain an advocate before doing anything more than filing an informal claim (a letter to the VA asking for all benefits to which a claimant may be entitled) with the VA. Advocates are usually familiar with the pitfalls in the VA claims process and are better prepared to fill out applications and respond to requests from the VA.

The VA's compensation application asks for many different dates and facts, including the date of onset of the claimed condition, the name of the condition, and dates of treatment. Because some claims are denied on the basis of inaccurate dates or facts provided on the application, it is very important that the application contain accurate information and not be filled in from memory alone. Advocates should strongly discourage veterans from filing claims that communicate such specific facts or dates until they have had a chance to review the veteran's service records and post-service records.

To ensure that the veteran will get benefits at the earliest possible date while allowing him or her time to collect and review service and other records, the service officer should consider filing an informal claim first and submitting a complete application for compensation later. A letter identifying the veteran and the benefit sought would qualify as an informal claim.

Medical records and doctors' statements and opinions about the disability are very important in having a disability classified as service connected. VA rules permit people without a medical background to describe their symptoms or the visible symptoms of others, but not to give an opinion on issues that require medical knowledge. A medical expert, such as a doctor, is the only one who is qualified to give an opinion about the cause, the date of onset, or the severity of a disability. Many veterans will have to have a statement from a VA or a private doctor to back their claim for service connection.

If a veteran does not provide the VA at the start of a claim with enough medical evidence to make the claim plausible or probable, the VA can deny the claim as not plausible or well grounded. The VA does have a duty to assist a veteran in developing a claim-but veterans (and advocates) must realize that the veteran first has to submit a claim that is plausible.

Veterans and advocates should note that their own medical opinions do not count because they are not medical experts. Because it is often difficult to get a treating VA doctor to provide a medical opinion, a veteran may have to get one from a private physician or other type of medical expert. In many cases, the veteran will have to pay the private physician. The claimant should provide the doctor with both service records and the records of the veteran's treatment after discharge. The advocate or the veteran should ask the private doctor to note which medical records he or she reviewed when rendering the medical opinion.

Five Ways to Establish Service Connection:
There is more than one way to get a disability service connected and the VA is required to consider, at least briefly, all of the kinds of evidence a veteran could use to prove service connection. Some veterans think a disability has to be specifically noted In their service records to be compensated. That is not true. There are five general theories under which the VA can award service connection: direct service connection, service connection through aggravation, presumptive service connection, secondary service connection, and service connection for injuries caused by VA health care.

Direct Service Connection

One of the most common ways of getting service connection is for a veteran to show, through military or service medical records (SMRs), that he or she currently suffers from a disability that began during service. This is called direct service connection. For example:

Direct service connection can be proven by showing that the veteran suffers from a chronic condition (such as an ulcer or the effects of a broken bone) that began in service.

Direct service connection can also be established if the evidence shows that the veteran had symptoms of, or was diagnosed with, an acute condition that developed into a current disability. The evidence usually must show continuity of symptomatology (ongoing or regular symptoms and treatment that reveal that the acute condition is linked to the veteran's current condition).

The veteran does not have to show that he or she has constantly suffered from the condition since service to prove continuity of symptomatology. He has only to show that it recurred fairly regularly after service and that it is currently a problem. Treatment need not have been provided by a doctor, although that is probably preferable the veteran could claim that he treated the condition himself, at home. The VA must consider a veteran's testimony or the testimony of the veteran's friends and family members about the veteran's symptoms.

Therefore, the veteran's testimony, supported by the statements of friends and family members, may be enough to establish continuity of symptomatology.

Three things are necessary for a good claim for direct service connection:

The veteran has to have some disability at the time of filing the claim. A recent diagnosis of the disability or disease from a doctor would generally prove the existence of the condition.

The veteran has to cite some incident (some injury, illness, or exposure) in service that could have caused the disability. The best proof is a diagnosis of the condition in service medical records.

There has to be some connection between the veteran's current disability and the incident in service. The VA usually requires some proof that the incident in service caused the current disability.

Usually, veterans have little difficulty establishing service connection for the effects of a broken bone or gunshot wound suffered in service (as long as the veteran's service records show the injury). In some instances, however, a doctor's medical opinion is needed to make the claim plausible.

For example, assume that a veteran is claiming service connection for a right knee condition. His service records show that he injured the knee while falling out of a jeep in 1972. After discharge he began experiencing knee problems. In 1994, he had a right knee operation that was reported to the VA. In this case there was an incident in service (the knee injury) and there is medical evidence of a current knee condition. What the veteran has not done so far, however, is link the current knee condition to the injury in service. This would require a medical opinion from a doctor or evidence of continuity of symptomatology. The doctor need not state with absolute certainty that the veteran's knee problem arose from the fall for the veteran to obtain compensation benefits. Because the VA must give veterans the benefit of the doubt when there is an equal amount of positive and negative evidence on a claim, a doctor really only needs to say that it is at least as likely as not that the condition is related to service. Of course, the doctor should give the reasons for his or her medical opinion and refer to the medical records he or she received.

Advocates can help veterans by identifying cases in which the veteran is likely to need a supporting medical opinion. Sometimes a family doctor who has been treating the veteran can provide a medical opinion. Some veterans might prefer to get another doctor, perhaps a specialist. The veteran should be sure to provide the doctor with all prior medical records and a full medical history so that the doctor can give an informed opinion as to whether it is as least as likely as not that the veteran's condition began in service. Of course, if the doctor can conclude that it is probable, highly likely, or certain that the condition began in service, it would be even more helpful to the veteran.

Service Connection Through Aggravation

A veteran can get service connection for a disability that existed before service but was aggravated in service. The veteran will usually be compensated only for the amount by which the disability worsened while in service and not for the entire disability, unless the condition is evaluated as 100 percent disabling.

Generally, unless the veteran's entrance examination indicates otherwise, the VA must presume that the veteran was in sound condition when the veteran entered the service. If the entrance examination did not reveal a disability, then the burden of proof is on the VA to show that the condition preexisted service. The assumption that the veteran was in sound condition when he or she entered the service is called the presumption of soundness.

If the VA determines that aggravation was caused by the natural progression of the disease or disability (meaning that the disability would have increased to the same level of severity even if the veteran had not been in service), then service connection will be denied. If, however, the stress of military service caused the disability to get worse faster than it normally would have, the veteran may be able to get service connection based on aggravation.

As with direct service connection, a claim of service connection based on aggravation is best supported by a medical opinion from a doctor. Lay statements that a condition became worse in service, or that the worsening of a condition was caused by service and not by the natural progression of the disease, are not enough. Although a veteran can testify that his or her symptoms worsened, a doctor may have to provide an opinion as to whether the condition actually got worse during service. Note that only a medical expert can give the opinion that the aggravation was caused by service, not by the natural progression of the disease.

Presumptive Service Connection

Some diseases can be presumptively service connected-that is, if they appear within a certain period of time after service (called the presumptive period), the VA will assume that the disease is service connected. As long as a veteran can show that the disease was severe enough to warrant a compensable disability evaluation (10 percent or higher) within that period, he or she should get service connection. Generally, to be eligible under a presumption, the veteran must have served on active duty for at least 90 continuous days. Presumptive periods under VA rules range from one year to at any time after service.

The VA lists 41 diseases that are presumptively service connected:

Anemia, primary;
Arteriosclerosis;
Arthritis;
Atrophy, progressive muscular;
Brain hemorrhage;
Brain thrombosis;
Bronchiectasis;
. Calculi of the kidney, bladder, or gallbladder;
. Cardiovascular-renal disease, including hypertension;
. Cirrhosis of the liver;
. Coccidioidomycosis;
. Diabetes mellitus;
. Encephalitis lethargica residuals;
. Endocarditis (all forms of valvular heart disease);
. Endocrinopathies;
. Epilepsies;
Hansen's disease;
Hodgkin's disease;
. Leukemia;
. Lupus erythematosus, systemic;
Myasthenia gravis;
. Myelitis;
Myocarditis;
. Nephritis;
. Other organic diseases of the nervous system;
. Osteitis deformans (Paget's disease);
. Osteomalacia;
. Palsy, bulbar;
. Paralysis agitans;
. Psychoses;
. Purpura idiopathic, hemorrhagic;
. Raynaud's disease;
. Sarcoidosis;
. Scleroderma;
. Sclerosis, amyotrophic lateral;
. Sclerosis, multiple;
. Syringomyelia;
. Thromboangiitis obliterans (Buerger's disease);
. Tuberculosis, active;
. Tumors, malignant, or of the brain or spinal cord or peripheral nerves; and
. Ulcers, peptic (gastric or duodenal).
Any eligible veteran can claim service connection for one of these diseases as long as there is some evidence that the disease appeared within the presumptive period. Other presumptively service-connected diseases apply only to veterans with certain service experiences; for example, veterans who served in the tropics can get presumptive service connection for certain tropical diseases, and Vietnam veterans can obtain presumptive service connection for certain diseases, mostly cancers, that the VA assumes were caused by exposure to the herbicide Agent Orange.

The VA will also grant presumptive service connection to veterans who, it determines, were exposed to radiation in service and who develop any of a number of cancers. There are also provisions for veterans who were part of the occupying forces in Hiroshima or Nagasaki or who took part in certain nuclear tests and later develop some types of cancer. Claims for compensation based on radiation exposure can be surprisingly difficult to win and should be referred to an accredited service officer.

Presumptive Periods

The presumptive period for some diseases caused by certain types of military experience is open ended. Veterans who were prisoners of war (POWs), who were exposed to mustard gas while testing protective clothing or equipment during World War II, who were exposed to radiation in service, and some veterans of Vietnam, are entitled to presumptive service connection for certain diseases if they appear at any time after discharge. For example, a former POW who begins to suffer from an anxiety condition 40 years after discharge should be service connected for the anxiety condition.

It may be fairly easy to get presumptive service connection when a veteran has received a clear medical diagnosis of a disease within the presumptive period. If not, the veteran will need both lay and medical evidence to support the claim. He or she will need lay statements from friends, family, or coworkers stating that they observed certain symptoms. These lay statement may be able to support a conclusion by a medical expert that the condition existed to a disabling degree of 10 percent during the presumptive period, He or she will also need statements from doctors that the symptoms the veteran experienced are those of the disease, and that it is more likely than not that the veteran had the disease within the presumptive period.

Secondary Service Connection

Any disability that is caused by a service-connected disability can be service connected. For example, a mood disorder such as depression can be service connected if it is caused by or related to a service-connected physical disability. Also, a physical condition that is caused by a service-connected mental condition can be service connected. The secondary disability need not appear until years after the original service-connected disability.

If a veteran thinks that a service-connected disability has caused some other physical or mental problem, he or she should try to get a statement to that effect from a doctor. A veteran's statement that a service-connected shoulder condition caused a neck problem is not enough for the VA to grant service connection because the veteran is not a medical expert. In fact, the VA may decide that this claim is not plausible or well grounded.

Secondary service connection can also be granted if a service-connected disability makes a non-service-connected disability worse. For example, suppose a veteran has both a service-connected anxiety condition and non-service-connected hypertension (high blood pressure). If the service-connected anxiety condition aggravates the hypertension, the increase in the hypertension can be service connected. If the hypertension then causes a heart condition, the heart condition can be service connected. If the heart condition eventually causes the veteran's death, his or her survivors may be eligible for service- connected death benefits.

Another form of secondary service connection applies to certain "paired organs" and extremities. If a veteran has a service-connected disability of one of these paired organs or extremities and a non-service-connected disability of the other, the non-service-connected disability will be treated as if it were service connected as long as it is not the result of the veteran's willful misconduct. The qualifying disabilities of paired organs or extremities are:

Blindness in one eye that is service connected and blindness in the non-service-connected eye;
Loss or failure of one service-connected kidney and the involvement of the other kidney as the result of non-service-connected disability;
Total service-connected deafness in one ear and total non-service-connected deafness in the other ear;
. Service-connected loss, or loss of use, of one hand or foot and the loss, or loss of use, of the other hand or foot because of a non-service-connected disability; and
Permanent service-connected disability of one lung evaluated as 50 percent disabling or more, in combination with a non-service-connected disability of the other lung.
Service Connection Based on VA Medical Care

An injury or aggravation of an injury caused by VA hospitalization, VA medical or surgical treatment, VA exams, or VA vocational rehabilitation can be service connected.

Eligible survivors can also receive certain VA benefits if a veteran dies because of VA health care. These benefits are called section 1151 benefits because the law that provides for them is found in section 1151 of title 38 of the United States Code (federal law).

Veterans or survivors of veterans may also be able to file a claim and then sue the government under the Federal Tort Claims Act (FTCA). Under the FTCA, a person who has been injured or the estate of a person who has died because of the actions of a U.S. government employee can sometimes recover money damages for that injury or death.

Section 1151 Claims

Until recently, VA rules stated that the injury or disability had to have been caused by the negligence (carelessness) of the VA or its employees. However, the Supreme Court of the United States held in Brown v. Gardner (115 S.Ct. 552 (1994)) that the law does not require VA negligence for section 1151 benefits. Veterans who were denied section 1151 benefits under the old rule may now be eligible for those benefits. Veterans with section 1151 claims that were denied because a regional office found that the VA had not been negligent should re-file their claims.

In section 1151 claims, the first issue is whether the veteran suffered an injury. A person who is not happy with his or her medical care has not necessarily suffered injury (or disability). A section 1151 claim requires an increase in prior disability, a new physical ailment, or a mental condition caused by the VA medical treatment. Usually, the injury or aggravation is evaluated and assigned a percentage rating; then the veteran is paid com- pensation benefits as though the disability had been incurred or aggravated in active service.

Once an injury has been identified, the claimant must establish that the VA treatment caused the injury. There are three possible ways to show causation:

If the veteran did not give (or was not asked to give) informed consent to the treatment and its necessary consequences. Informed consent generally means freely given consent that follows a careful explanation of the proposed treatment, made by a doctor to the patient (or to the patient's representative). The doctor should also describe the risks, complications, or side effects of the treatment.

If the injury was not a "necessary consequence" of the treatment. A necessary consequence is a consequence of treatment that is certain or intended to result from the treatment. Compensation will not be paid for the necessary consequences of VA medical treatment that is properly administered. For example, if the VA had to amputate a veteran's foot to save his life, the veteran could not obtain section 1151 benefits because the loss of the foot was the intended result of the medical procedure. If, however, an attempt to treat a veteran's back, caused damaged nerves in his or her right leg, then section 1151 benefits could be paid for the injury to the right leg. The idea here is that section 1151 benefits can be paid for the risks of the VA medical procedure-but not for the intended results.

If an injury was caused by VA negligence. If the veteran can show that the VA was negligent or careless in its treatment, and that an injury resulted, compensation can be awarded for that injury.
The VA has announced that it intends to ask Congress to change section 1151 to make it much more restrictive, thereby possibly overturning the Gardner decision. Therefore, veterans should file these claims as quickly as possible. Any previously denied section 1151 claim, even a claim that was denied 40 years ago, should be refiled now. *Note Legislation was pasted that has basically put everything back to before Gardner.

Federal Tort Claims Act

In general, the federal government cannot be forced to pay for any wrong it commits; however, the government sometimes permits claims against it. One example is the Federal Tort Claims Act, which outlines the circumstances under which a citizen can make a claim against the government (and sue if necessary) and the procedure for doing so. Basically, the FTCA provides that persons who are injured by a negligent federal government employee may recover for their injuries, under certain circumstances. A veteran filing a section 1151 claim should be encouraged to consider filing an FTCA claim too.

Note that section 1151 and FTCA are two entirely different types of actions and veterans may be entitled to substantial sums of money under both. Section 1151 benefits are a type of VA monthly benefit payment. An FTCA award is usually a lump sum awarded by a court or through an administrative settlement. A veteran can recover under the FTCA even though he or she is receiving VA benefits under section 1151. However, the law permits the VA to offset section 1151 benefits against any FTCA award-that is, a veteran who wins both benefits under section 1151 and damages under the FTCA may lose section 1151 ben-efits until the FTCA award is recouped. Prompt filing of section 1151 claims is therefore important.

Because FTCA awards are individualized, based on the pain and suffering experienced and the economic loss to the claimant, FTCA awards can result in a large lump sum payment of money. A lump sum payment is sometimes more valuable than the monthly payments awarded under section 1151 because the lump sum can be invested to produce more money. However, there is no guarantee that an FTCA action will succeed. FTCA claims involve complex legal matters and should be handled by lawyers. (It should be noted that attorneys can receive up to 25 percent of a court award in fees.) Lay advocates should advise veterans with possible section 1151 claims to seek advice from an attorney experienced in FTCA law; delay can mean that the veteran will not be able to recover. Advocates should do this as soon as the potential for an FTCA action is recognized for several reasons. For example, there is a time limit-a statute of limitations-for filing FTCA actions, and its calculation is complex. Also, an FTCA claimant must file an administrative claim with the government agency involved (for example, the VA) before beginning an FTCA action. This administrative claim is different from a section 1151 claim. Non-attorney advocates should avoid giving any specific advice or drawing any conclusions about the FTCA claim.

Compensation

One option for advocates is to make copies of the following paragraph:

You have indicated that you may have been injured by VA medical care. It is important that you know that, because of your injury, you may have the right to file a claim against (and sue if necessary) the federal government under the Federal Tort Claims Act (FTCA). Because there is a time limit to file an FTCA action, I suggest that you get immediate advice from an attorney experienced in FTCA law. If you do not know an attorney experienced in FTCA law, you can contact your local bar association. This information was provided to

(Mr/Ms.)_________________________________________________
(claimant)
on ______________________________________________________
(date)
by_______________________________________________________
(advocate's signature)

Special Combat Rule

Possession of certain awards and decorations, or mention of such awards or decorations in a veteran's military personnel records, usually indicates combat involvement. Even without such evidence, however, a special rule that applies to veterans who were engaged in combat can help these veterans secure service connection. The rule says that lay statements can be accepted as proof that a disability was incurred (or aggravated) in combat, even if there is no other proof in service records. Because detailed record keeping is not possible in combat, all that is generally needed is that statements be consistent with the circumstances, conditions, or hardships of the veteran's service. This means that combat veterans who are trying to prove service connection can use their own statements, their buddies' statements, or the statements of family members or others to show that a disability should be service connected, as long as those statements don't conflict with service records or other evidence of service. Of course, these statements have to deal with what happened during combat.

This special rule helps veterans who were in combat to prove what happened during combat. The veteran still has to show that he or she suffers from a current condition and that this condition is linked to the incident in service.

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