Veterans applying for VA disability benefits often face many problems as they attempt to get their disability service connected. Many of our clients have expressed how difficult it was to get their claim approved. In this article, we are going to look at the three components of a disability claim:
You must obtain a current medical diagnosis of the physical or mental condition which was acquired during military service. The disability must be one that still impacts your life. It could be anything, such as musculoskeletal injuries, disease, or psychiatric disabilities. It could be secondary to an already service-connected disability. For example, if you are service connected for diabetes and you find that it causes you neuropathy in your extremities or an eye condition, those would be valid claims.
This may be shown by your service treatment records, showing the cause of the condition which began in active service. If you came into service with the disability, the Secretary of the VA must show by clear and unmistakable evidence that your service did not exacerbate the condition and the condition was caused by the normal course of that disability. For example, if you came into service with flat feet with no symptoms but are now facing additional problems due to the boots you wore and the weight you carried along with ruck marches during service, the VA has the burden to show it was the normal course of flat feet that caused the disability.
For the reserves or national guard, it must have occurred during a time when you were called into active duty service or during active duty for training.
The disability can be verified and proven through submission of evidence. For example, statements made by buddies, family member, newspaper articles of the event, letters you sent home about the event and other evidence could solidify your claim. This does not require proof beyond a reasonable doubt, rather what is needed is that it is more likely than not. If the evidence shows that there is only a 50% chance that something occurred and a 50% chance that it did not occur, this is called equipoise and the Veteran always receives the benefit of the doubt in favor of service connection.
The nexus is a connection between what happened in service and the present disability. This requirement can be shown by continuous treatment since service for the disability. Other times, it can be shown by a presumption of service connection such as exposure to agent orange and subsequent ischemic heart disease or diabetes. If it is a presumed disability (such as Agent Orange related conditions), the Veteran need not prove it happened but will be service connected automatically.
It also may be shown by a credible report from a physician who has read your medical history and concludes that the disability is “more likely than not” caused by your service. The expert must give a rationale as to how he or she came to that conclusion, it must be based on competent medical evidence. It cannot be given by mere speculation or does not address medical or other evidence that appears to be against the claim.
Once you file your disability claim you may be called in for a compensation and pension (C&P) exam. We cannot stress enough the importance of attending this examination. It is required to enable the VA to decide your case. Without it, the VA does not have the evidence it needs to make a decision and a denial will most certainly follow. If you have good cause for not going to the exam, reschedule it with the VA immediately. If not, the VA will base their decision on what evidence they have which may not be enough. The exam also helps the VA to evaluate the severity of your claim and rate of compensation.
If you have a past decision that was not appealed in the amount of time allotted and you wish to have the VA review it, you must submit new and relevant evidence to get the old decision re-opened for adjudication. This may involve a new independent medical opinion or other evidence the VA did not have in its first decision and it must be relevant to your case.
In many instances, the VA may routinely call you in for a C&P examination to see if there has been improvement in your disability. This is called “a proposal to reduce.” You have 30 days to request a hearing on their proposal and up to 60 days to add evidence that your disability level has not changed. If the VA doesn’t hear from you, they will follow up and reduce your rating. If you request a hearing on the proposal to reduce, the VA may not reduce your pay until you have had the opportunity to be heard.
If you are unhappy with the rating decision from the VA you have the right to appeal. As long as you continue to appeal unfavorable decisions, the VA will be required to pay you back to the date your claim was initially filed once you win. It pays to continue to appeal the decision as you will be accruing a retroactive payment from the date of your claim or from the date you filed an intent to file, whichever is earlier.
If you have been denied disability benefits from the VA or given an unfavorable rating, we can help. Our team of skilled disability lawyers understand the appeals process and can help you file an effective appeal. Contact Berry Law today to schedule a free case evaluation.
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