One of the more common reasons for denials of musculoskeletal claims is a lack of evidence of the disability/injury occurring in service. Any time a Veteran enters a claim for service connection, the VA will review the Veteran’s Service Treatment Records (STRs). These are the Veteran’s medical records from service. To be clear, these are not the treatment records from the VA or a private health care after service. These are the records from when the Veteran was seen at a medical facility on base during active duty service.
The most common issue with these claims is the Veteran sought medical attention from the unit medic or corpsman, meaning the Veteran did not go to the medical clinic for treatment. Inherently, the unit medical professional might have offered a generic assessment of the pain and issued an anti-inflammatory such as Motrin (Ibuprofen). Almost every Veteran can relate to a scenario like the following:
“Hey Doc, my back hurts” or “Hey Doc, I have this pain in my knee.” Then the response is, “Here. Take Motrin and drink some water.”
The Veteran then takes the 800mg pills and goes back to work. The Medic may then never actually go find the Veteran’s medical file and record that the Veteran was treated for: Knee pain, Back pain, Elbow pain, Shoulder pain, etc.
This bring us to this point: If this is the scenario for the Veteran, how does the Veteran “prove” they sought treatment in service?
The answer is: The Veteran needs to make a statement to this fact.
The Veteran needs to submit a statement on a VA Form 21-4138 (Statement in Support of Claim Form) explaining when they were injured in service and what medical attention they sought about the issue. This statement alone will not grant service connection, but it will give needed context to the lack of medical treatment in service.
If the VA does not see medical treatment in service, the VA will not only not order an examination for the claimed disability, but they will ultimately deny the claim because they don’t have a medical opinion or nexus letter linking the condition to service. On the rating decision, the Veteran will read a statement such as:
If the VA says this, it means that a review of the Service Treatment Records did not shows the claimed condition. Each Veteran’s medical record is different, with some consisting of thousands of pages. Other records may be handwritten and difficult to read. Some records may contain short hand, for example: LBP for Low Back Pain.
If the Veteran claimed Back pain and the VA does a review for Back, but misses LBP handwritten in the margins, the claim could get denied for No Event in Service, No Treatment in Service. Again, this is why a detailed statement is so important. If the Veteran utilizes VA Form 21- 4138 (Statement in Support of Claim Form) and writes, “I was seen for my Back around August or September 1988. I was also seen for my ankle.” The VA can then target the search to records during that timeframe. Even if the Veteran is not making an ankle claim, the VA might see an entry for ankles, which is not abbreviated, and then find the entry of LBP next to it.
The Veteran’s statement can also be used to address “lack of” treatment if the Veteran gives context. For example, “While on a training mission I injured my knee. I saw treatment from the medic and was given Motrin and a brace. The training was 3 weeks long and I could not get pulled from the training without getting dropped from the exercise. After the exercise, I continued to ice and take over-the-counter medicine. My injury was nagging and never healed, but I did not want to be kicked out of the unit. I had to remain 100% mission ready.” Again, this statement will not grant service connection; however, it might be enough to get the VA to order an examination.
The VA must have an examination that gives a medical opinion linking the claimed disability to service. If the Veteran’s statement triggers the VA to order an examination and the medical examiner gives a medical opinion that the claimed condition is just as likely as not due to service, the Veteran stands a much better chance of getting service connection.
In closing, musculoskeletal disability claims are routinely denied due to a lack of evidence. Veteran’s will not have documented treatment in service because operational tempo or fear of being classified as injured or non-deployable will have prevented such documentation from occurring. The bridge to help with service connection is the Veteran’s ability to communicate the circumstances of their disability to the VA in order to get a medical opinion.
If you have been denied disability benefits related to musculoskeletal disabilities, we can help you appeal. Contact Berry Law today to get a free case evaluation and see if we can assist you with your claim.
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