Many Veterans contact Berry Law to see if they are eligible for disability benefits for pre-service disabilities. The short answer is yes, Veterans can receive VA benefits for an injury that occurred prior to service. However, to receive VA disability compensation they would need to get the disability service connected. In order to obtain service connection, you need to show VA evidence that this condition worsened during your military service and that was not a result of natural progression.
Due to the physical demands placed on military servicemembers, it is possible for a pre-existing condition to become worse. If this happens, the servicemember is eligible to apply for disability benefits when they are released from service. If granted service connection, VA should award a rating for the increased amount of impairment. The primary disability could also lead to another injury, which is known as a secondary condition. Veterans who suffer from a secondary condition due to service are also entitled to disability compensation.
38 CFR §3.306 and VA regulation 38 USCS 1153 state that a preexisting injury or disease will be considered to have been aggravated by service when there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.
For example, let’s say you had a pre-existing condition of Pes Planus, or flat feet, which displayed symptoms consistent with a 10 percent disability rating. During your years of military service, you marched many miles on uneven, rocky terrain carrying a heavy rucksack in combat boots. When you left the service, your foot condition became much worse. You had painful motion and swelling of your feet, and you developed calluses. These symptoms are consistent with a 30 percent rating. Under this example you are eligible for service connection for Pes Planus with a 20 percent rating.
38 USCS 1111 states if the condition you are claiming was not recorded on your entrance examination, then VA is required to assume the presumption of soundness applies unless there is evidence showing the disorder clearly and unmistakably existed prior to enlistment. This means that if your injury was not recorded on your entrance examination, the VA must presume that the disability occurred at some point during service. However, it is important to note that the VA can utilize lay evidence from the your medical examinations to determine if a condition was preexisting.
So, if you tell the Compensation and Pension (C&P) physician you sustained any injury involving the claimed condition prior to service, the VA can deny your claim due to the condition being pre-existing, even though your entrance exam did not have record of the injury. This has happened to Berry Law clients in the past.
A Veteran was involved in an accident while in the military and sustained a serious back injury. During his comp and pen exam the doctor asked if he ever had back pain prior to joining the Marine Corps. The Veteran was very honest and said “Yes, I hurt my back in wrestling practice and had to put ice on it.” The VA denied his claim saying this condition clearly and unmistakably was a pre-existing condition.
If your pre-existing condition results in a secondary injury, that secondary injury can also be claimed for disability benefits. Service connection on a secondary basis requires showing the disability is proximately due to, or the result of, a service-connected condition.
Berry Law has helped thousands of Veterans successfully appeal their VA claim. If you were denied disability benefits for a condition that got worse or a secondary condition that was caused by military service, you have the right to appeal. Let the experienced attorneys at Berry Law help you get the disability compensation you deserve. Contact Berry Law today to schedule a free case evaluation.
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