You may be pondering: “Is it possible for VA disability claims to lack evidence?”
The concise response is negative.
Because in the absence of evidence or proof, your VA claim will face denial.
Furthermore, you need to navigate through various obstacles to qualify for VA benefits.
Initially, you must fulfill the two prerequisites for VA benefits eligibility, which encompass (#1) an “Honorable” Discharge and (#2) time served on active duty military orders.
Subsequently, you are required to substantiate four crucial elements to the VA, based on a legal standard known as “at least as likely as not” – a burden of proof even lower than “preponderance of the evidence.”
In the event of a tie (50/50), the veteran emerges victorious.
What Disabilities Can the VA Not Prove?
Absolutely not – every VA disability claim must be substantiated.
In reality, all VA claims require proof on an “at least as likely as not” basis.
Without evidence or proof, your VA claim is destined for denial.
Moreover, you must first establish your eligibility for VA disability benefits according to the law.
In general, veterans must fulfill several criteria, including (1) an “Honorable” Discharge, (2) time served on active duty military orders, (3) a diagnosis of a current disability in a medical record, (4) evidence of an in-service event, injury, disease, or aggravation, (5) a “Nexus” or link between #3 and #4 via competent medical evidence, and (6) the severity of symptoms in terms of frequency, severity, and duration.
1. Honorable Discharge
Primarily, you must obtain an “Honorable” Discharge from the military.
In the case of receiving a Discharge of “Other Than Honorable,” “Bad Conduct,” or “Dishonorable,” it is imperative to upgrade your discharge characterization in order to access VA benefits.
For those uncertain about their status, verification of discharge characterization can be done through the DD 214.
Alternatively, veterans can opt to apply for VA benefits initially and request the VA to conduct a Character of Discharge Determination (COD). However, this typically requires demonstrating a “mental defect” at the time of discharge.
2. Time Served on Active Duty
Secondly, you must meet the criteria of being recognized as a “veteran,” having served on active duty orders, active duty for training, or inactive duty training.
Your eligibility for VA benefits is predominantly determined by the VA through a “Veteran Status” evaluation, taking into consideration factors like length of service, service commitment, and the duration of active duty orders.
3. Current Disability Diagnosis
In the third step, it’s crucial to possess a medical diagnosis confirming a current disability documented in a medical record.
This diagnosis can be found in service treatment records, VA medical records, or private medical records, including a DBQ or Nexus Letter.
For instance, if you submit a claim for PTSD without a prior diagnosis, your VA claim is likely to face denial.
If you lack a diagnosis for the specific disability you’re filing for, it’s advisable to consult your primary care provider or another specialist before initiating the application for VA benefits.
4. An Event Happens During Service
Fourthly, it is imperative to present evidence of an in-service event, injury, disease, or aggravation that either caused your disability or exacerbated its severity.
Consider this as a quick litmus test: Do you possess medical evidence?
If not, it is advisable to secure such evidence, whether from VA medical records or private treatment records, before initiating a VA claim.
While your DD 214, a credible Buddy Letter, and/or a Statement in Support of a Claim can contribute to supporting your case, the essential requirement remains medical evidence confirming a current disability.
Once again, emphasize the connection or link between factors #4 and #5.
For instance, enduring constant rocket and mortar attacks in Afghanistan may have instilled a fear for your life, subsequently leading to PTSD.
Alternatively, sustaining an injury during a training accident on active duty could result in shoulder and neck pain.
It’s also plausible that entering the military with flat feet, compounded by military service, worsened the condition beyond its natural progression.
5. Nexus or Link Between 3 and 4
Fifthly, a crucial element is the existence of a “Nexus” establishing service connection between factors #3 and #4 mentioned earlier.
Failing to demonstrate a clear link or connection between your disability and your military service increases the likelihood of being denied VA disability benefits.
There are five types of service connection recognized under the law.
#1. Direct Service Connection
This is the most prevalent method of establishing service connection for VA disability compensation benefits.
In this scenario, you inform the VA that your current disability condition directly stems from your active duty military service.
It could be attributed to a training incident, car accident, combat deployment, job-related stress, or any other in-service incident, injury, event, or disease that directly caused or exacerbated your current disability condition.
For instance, combat-related PTSD resulting from an IED attack in Iraq is an example where the PTSD is directly linked to the combat deployment, establishing a clear connection to military service.
#2. Secondary Service Connection
As per 38 CFR § 3.310, a current disability condition that is directly caused by or is the result of a service-connected disease or injury is also eligible for service connection.
For instance, suppose you developed ringing in your ears, known as “Tinnitus,” during your time in service. Today, although you are no longer in active duty, that service-connected tinnitus might be contributing to migraine headaches, anxiety, and/or depression.
Establishing service connection on a secondary basis necessitates a demonstration of causation.
Instead of proving a direct service connection for your disability, you are required to show that it is either caused by or made worse by a different disability that is already service-connected.
#3. Presumptive Service Connection
When your disability condition aligns with specific criteria outlined by Congress, it will be automatically presumed to have been caused by service.
Instances of such presumptive service connection encompass certain chronic debilitating diseases, diseases linked to radiation exposure, conditions associated with herbicide agents (including Blue Water Veterans), Persian Gulf War Veterans and Burn Pit Exposures, and Camp Lejeune Veterans.
For a more comprehensive understanding of diseases subject to presumptive service connection, refer to 38 CFR § 3.309.
#4. Service Connection by Aggravation
On occasions, military service exacerbates a pre-existing condition.
Consider this scenario: a veteran might have had flat feet before enlisting, but the combination of wearing military boots and prolonged standing worsened the flat feet, resulting in a painful disability known as plantar fasciitis. This condition is eligible for compensation under the law.
Moreover, if a veteran has a service-connected knee condition that aggravates a non-service-connected back condition, they could establish service connection for their back based on aggravation—provided they can demonstrate that their condition was worsened beyond its natural progression due to military service.
#5. Service Connection by 38 U.S.C 1151
This pertains to disabilities or death arising from “hospital care, medical or surgical treatment, or examination” conducted by a VA medical professional or facility, or as a consequence of participation in a vocational rehabilitation program.
In our observations, instances falling under this category are infrequent.
6. The severity of Symptoms and Other Factors
The sixth and final element is termed “Severity of Symptoms,” assessed in terms of frequency, severity, and duration.
Frequency denotes how often your disability manifests (never, sometimes, always).
Severity gauges the extent to which the disability impacts you (not severe, sometimes severe, always severe).
Duration pertains to the length of time the disability symptoms persist (not long, sometimes long, always long).
It’s crucial to recognize that the VA disability compensation system offers veterans tax-free monetary relief based on the average impairment of earnings capacity.
This approach is logical – if your disability has minimal impact, the VA won’t provide compensation for that condition.
Conversely, if your disability is severe and frequently affects you, the VA is likely to compensate you for that condition, often at a higher disability percentage.
The VA Rater determines the disability percentage evaluation by considering a “preponderance of the symptoms.”
Overall, an attorney can often help you with your VA claim, no matter what state of “proof” you may currently be in.