|
One
of the first things the VA will look for in your disability claim meet three basic elements:
First,
you must produce medical evidence of a present disabling problem -
physical, mental or a combination of the two. Some doctor, VA or private,
has to say in writing that you have a problem now. Your statements count
for zilch here. It has to be evidence from a medical professional usually
in the form of an examination or treatment report. When I say you must
“produce” it, either give VA a copy or tell them where it is and they
can get it. It’s better to give them a copy and keep a copy for
yourself. It is a very good practice to keep copies of absolutely
everything you send to VA as files and documents do get lost. Better safe
than sorry.
Secondly,
you must show that you had risk factors for virus transmission while in
active military service - The easiest way to
prove an in-service problem is through service medical records (SMRs).
These are records that VA will automatically attempt to compile when you
file your claim. If they haven’t been lost or burned up in the St. Louis
records center fire or otherwise misplaced, and, if they were created in
the first place, your SMRs may well show that you had “service incurrence” which led to your current disability. Medial
and dental procedures, inoculations (shot records), exposure to blood
and blood products...
more info
For
now, your chore is demonstrating to VA that something bad happened to you
while in uniform. And it is a real chore absent those SMRs because
generally VA is not going to take your word for it. They want it in the
SMRs or other records. There is an exception for combat veterans, however.
Congress realized that under combat conditions records could not be and were
not always kept so they carved out a law which basically requires VA to take
a combat vet’s word for service incurrence. Unfortunately, there is a whole
lot of rigmarole which muddies up what is combat and how you prove combat
and some other issues With a current disability (step one) and service
incurrence (step two) safely in hand, let’s move to the part which
prevents most claimants from establishing their claim --
linking one and two together or the infamous nexus dilemma.
Thirdly,
comes nexus between the
in-service problem and the current one. You have to
prove a medical link or nexus or relationship between the bad thing which
happened in-service and the present disability. No problem, right? Wrong! VA requires medical evidence which positively links
the two. Some doctor has to state in writing that based on her examination,
only one of three phrases accepted by the VA...
-
is due to" (100% sure
hat the in-service injury/exposure and today’s problem are connected)
-
more likely than not" (greater
than 50%)
-
at least as likely as not"
(equal to or greater than 50%)
-
not at least as likely as not"
(less than 50%)
-
is not due to" (0%)
...that the in-service
injury/exposure and today’s problem are connected.
Here is the VA formula of phrase = % of
probability as near as we can ascertain: Most likely=80%. More likely than
not=70%, More likely than less likely=60%, At least as likely as not=55%.
The evidence is equipoise=50% (38 USC 5107 or 38 CFR 3.102)
Physicians, as a group, are not
known to be prone to speculation. They like hard, scientific evidence. So,
nexus has become the stumbling block for countless veterans. Are there ways to attack the nexus problem? Yep.
How To Handle The "Doctor Letter"
When Filing A Claim
Example of Nexus letters
Must you
get that Doc's statement before filing your claim? Not necessarily. There
are two main considerations here. First, the effective date of your VA claim
is whenever VA receives the first written notification from you that you
want to file a claim. Establishing that effective date is truly important
because if and when your claim is granted VA owes you money from the
effective date forward.
On the other hand, as soon as your claim is officially filed one of
the first decisions VA will make it is whether your claim passes the three
tests. If that Doc's opinion about nexus is not then a part of your
claim you will be notified that you have 30 days or lose. So, you may want to have that medical evidence in file from the
get-go to avoid that crunch.
Do
you have to pay for your medical exam? A lot of veterans do and consider
it a good investment. A totally disabled vet with no dependents gets over
$2600 a month -- tax free. But you might get a free exam at a VA hospital
because after you file your claim VA can schedule you for a Compensation
& Pension exam with one of their Doc's to see if there is nexus. The
problem is they can do this. There is no requirement that it be done so if
they don't and you don't then there is no medical evidence of a nexus and
you lose.
There
are a few exceptions to having to have a Doc's opinion on nexus. Indeed,
in VA disability law there are exceptions to almost every rule.
If you have your SMRs and need help with a nexus, contact
HCVets@aol.com
"Ask NOD" help
and Information for filing a claim |
Home