One of the first things VA will look for in your disability claim is whether it is well grounded. So, what’s that? A well grounded claim is a plausible claim with three basic elements you must prove in order to get your foot in the door. Make no mistake about it, you are still a long way away from service connection when you well ground your claim; but fail the VA well grounded test and you are out before the contest hardly begins. In fact, many VA denials are because the claims are not well grounded. On to the three 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. Okay, step one towards well grounding is a done deal with your submission of medical evidence of your current disability.

          Secondly, you must show that you had a problem while in active military service - you suffered an injury, disease, exposure to Agent Orange or radiation or toxic chemicals, a verifiable stressor and a few others. Or, a condition you had before service was aggravated while in service. The easiest way to prove an inservice 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” or “aggravation inservice”, the terms for the military problem which led to your current disability. More later about this “led to” business.

          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, but that will have to be another column or three. For now, let’s assume you’ve shown by hook or crook that there was a problem inservice so you’ve accomplished step two of your well grounded claim. 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 as well grounded -- linking one and two together or the infamous nexus dilemma.

          Thirdly, comes nexus between the inservice problem and the current one. You have to prove a medical link or nexus or relationship between the bad thing which happened inservice and the present disability. No problem, right? Any dummy can understand that the broken ankle inservice led to the weak, deformed and painful ankle which today makes it hard to do a full day’s work, right? Wrong! VA requires medical evidence which positively links the two. Some doctor has to state in writing that based on her examination of your ankle it is probable that today’s medical problem is related to that injury you sustained many years ago. 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 trying to well ground their claims. Are there ways to attack the nexus problem? Yep.

         There are three steps to well grounding your claim for VA disability benefits. The first is medical evidence of a current health problem. Secondly, you must prove that an injury or disease occurred or was aggravated while in active military service. The third is proving a nexus or link between one and two. VA turns down thousands of claims each year by saying "no nexus". What can you do to overcome this hurdle? Read on.

          It is critical to understand that your statements or testimony about any relationship between the in-service problem and today's problem count for practically nothing. Only the opinion of a doctor or other medical expert will establish that needed medical link. That's the rule--it's been upheld in court--like it or not that is the way it works.

          Here's an illustration of the nexus problem. Joe pulled a tour in Nam in 1969. While loading boxes of ammo into a jeep, he threw his back out and was laid up in a hospital for four weeks in traction where x-rays showed a fractured disc. With pain medication and rest he was able to avoid surgery, return to duty, finish his hitch, get a job back in the world and start raising a family. The back never got any better. He couldn't afford medical care so with heat pads at night and aspirin during the day he worked for another 12 years. When the back got so bad that he couldn't go anymore, he filed for social security disability and got it. He filed for VA disability (you can draw both) and was denied because no doctor had stated in writing that his present bad back was related to the back injury in-service. Joe testified under oath that his military back problem never improved and that the injury then was the problem now. VA wouldn't accept this as proof of nexus because Joe is not a doctor and no doctor had given a medical opinion that today's back disability was related to the military injury. In short, no nexus.

          Note one important point here. A VA denial on nexus doesn't have anything to do with whether they believe Joe. In fact, VA is required to believe Joe's statements at this stage of his claim. They must assume that Joe is telling the truth about the back never getting any better and to believe him when he says the back got worse over the years. But even though they believe Joe, the rule is they cannot grant benefits unless a doctor examines Joe and says that it is "likely" that or "more probable than not" that today's bad back is linked to the injury in-service.

          So, you must get a favorable doctor's opinion to draw a check. 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. So, if they get your letter saying you want to file a back claim on say March 1, 2000, and your claim is awarded March 1, 2001, they owe you 12 months of retroactive benefits. It comes in one fat check. 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 is well grounded. If that Doc's opinion about nexus is not then a part of your claim you will be notified that you have 30 days to well ground your claim or lose. So, you may want to have that medical evidence in file from the git-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 $2100 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. To find out about the exceptions to the Doc's opinion rule you'll have to tune in to next month's column. Semper Fi.

More
NEXUS 
The general rule is you must get a doctor to state in writing that today’s medical problem is linked to your military service. That is the easiest and fastest road to service connection. But, there are other ways to establish nexus although VA is traditionally reluctant to award benefits based on these exceptions to the general rule. One way is to show you have a “chronic” problem and that you had it inservice. Chronicity has to do with medical records from the service showing you had a chronic disease along with current medical reports showing you have the same disease. Some chronic conditions are listed in Title 38 of the Code of Federal Regulations (CFR) at section 3.309. Examples are multiple sclerosis and tuberculosis. This process is muddied up a bit by another regulation which sets different time periods during which these diseases must show up after service. At any rate, the regs are there to be studied and they can offer an alternative route around the problem of not having a doctor’s opinion.

Another way to show nexus is something called “continuity of symptomatology”. Since I surely don’t want to type that phrase over and over we’ll call it COS from here on. To really bone up on COS you can look at what VA has to say about it in section 3.303 of the CFR and see what the Court of Appeals for Veterans Claims thinks in the case of Savage v. Gober, 10 Vet.App. 488 (1997). I’ll try to explain COS with an example.

While serving in Nam, Ray fell hurting his back and left ankle. Service medical records (SMRs) show treatment at the time. He served out his hitch and went on with his life but the back and ankle continued to bother him. He was able to work but it took chiropractic treatments and over the counter pain pills to keep Ray going. Finally, the back got to the point he went to the nearest VA hospital for help. He also went to his family doctor. Of course, these visits generated medical records. X-rays showed a ruptured disc and arthritis in that region. Surgery wasn’t something Ray was ready for so he filed for disability with both Social Security and VA. The Social Security folks have different rules so Ray qualified there and began drawing a check. VA turned him down saying no nexus. Ray had not given VA a written doc’s opinion that his present problems were related or linked to his inservice injuries. VA claim not well grounded and benefits denied.

It is truly important to understand Ray’s predicament because thousands of vets end up in the same pickle every year -- turned down because of no nexus. Ray nailed step one of the well grounded claim process - proving a current disability - with current medical records showing a current back problem. He passed step two of the test because his SMRs show inservice injury to his back and ankle. With medical records showing a service-related back injury and medical records showing a present back problem, you might think there is service connection. Think again. Ray had never asked any of the doctors who examined or treated him to write down whether there was a connection between his military injury and today’s medical problem. Since that doc’s opinion about nexus was not in the papers making up Ray’s VA claim file, he loses on step three of the well grounded analysis - nexus.

What can Ray do? Since back problems are not “chronic” in the regulations, there is no presumption of nexus or of service connection. The only thing left is COS. The Savage case says that nexus may be proven by showing a chain or continuity of symptoms starting with the original injury or disease and continuing more or less unbroken to the present. Piece of cake, right? Simply testify that the symptoms never went away and that the symptoms are related to the arthritis and ruptured disc, right? Wrong. Unless the relationship or “nexus” between your symptoms and your medical condition is one of those rare relationships which you, a lay or nonmedical person, can observe and testify to, you still need a doctor’s opinion that there’s a nexus between your disability and the symptoms of your disability. See what they’ve done? For straight service connection you need a written doc’s opinion that it is “probable” or “more likely than not” that your inservice injury and today’s problem are connected. For COS you need a written doc’s opinion that it is “probable” or “more likely than not” that your continuing symptoms and today’s problem are connected. Another way of saying it is - you hurt your back in the military - the pain, numbness and stiffness never went away, and - today you’ve got a bad back - you still must have in your file a written medical opinion that there is or probably is a connection. Without it, you lose.

With that note of cheer, I’ll close for this month. Tune in again for more in the continuing saga of “Caring For The Nation’s Veterans”.

Clark Evans
Copyright©2000 

Clark Evans is an attorney who handles veterans disability
and pension claims on appeal. His articles generally discuss the VA compensation process and should not be construed as legal advice. Your specific circumstances should be discussed with a qualified veterans advocate to determine how the generic VA benefits awards scheme may affect you and your claim.

Clark Evans
Attorney at Law
303 N. Spruce
Searcy, AR 72143
(501) 279-7127
http://www.vetslaw.com

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