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Those veterans who honorably served their country in the armed forces may be entitled to tax-free, monthly VA disability compensation if they have one or more service-connected conditions with a disability rating of 10% or more. Eligible veterans are awarded such compensation in acknowledgment from the federal government that what happened to them in the military service can or may affect them once they separate or retire from the service. The federal government’s intention of VA disability compensation is to compensate you for any potential loss of civilian wages or civilian working time you would lose due to your disabling condition. The VA disability appeal lawyer team at Gang & Associates can help you navigate this process and prove service connection, which is a necessary component for any VA disability claim.
What is a Service-Connected Condition
The VA will only assign disability ratings for service-connected conditions. As part of the VA claims process, you must prove a service connection between your disability and your active military service. A service-connected disabling condition is an injury, illness, or disease caused by your military service or made worse by your military service. There are five different ways to prove a VA service connection.
- Direct-service connection
- Presumptive service connection
- Secondary service connection
- Aggravation of a before-service disability during service
- Service connection for injuries caused by the VA health care system
Direct-Service Connection
A direct-service-connected disability is one of the most common types of service-connected disabilities that occurs when a current disability derives directly from your time in service. You must be able to show the following three elements to prove a direct service connection: (1) evidence of a current, diagnosed disabling condition, (2) an in-service event, injury, or illness, and (3) a medical nexus linking the current disability to the in-service event, injury, or illness. A direct service connection had its onset in service. You can generally prove the elements of a direct service connection through service medical records. As an example, a veteran is diagnosed with tinnitus during service (the most common veteran’s disability claim). The veteran worked on the flight line, where he was exposed to loud noises. At the time of his VA disability claim, the veteran still suffers from tinnitus. As another example, a veteran was diagnosed with migraines during service. The veteran worked as a maintenance technician and was frequently exposed to chemical solvents. At the time of his claim, the veteran still suffers from migraines. These are both examples of direct-service connections.
Direct-service connection can also be established even if you do not have a specific in-service event, injury, or illness but experience the development of a condition over time, referred to as continuity of symptomatology. You may qualify for service connection if symptoms of a chronic condition have been present since you were in service. Such symptoms must have regularly persisted since you left the military without some intervening cause. You do not need a diagnosis of the condition during service. To establish service connection, you must demonstrate that your disability is a chronic condition, symptoms of the current disability were noted in your records while you were in the military, these symptoms have continued since separation from service and medical or lay evidence that a link exists between the post-service symptoms and current disability,
Presumptive Service-Connection
The VA automatically presumes that military service caused certain health conditions. Unlike other service connections, you do not need to prove that your service caused the condition if you have a presumptive condition. You just need to meet the service requirements for the presumption, which is usually 90 continuous days or more of active service. The VA recognizes many categories of presumptive conditions.
- Disabilities that appear within one year of discharge: If you have certain chronic conditions that started within one year after your discharge from military service, as listed in Title 38 CFR 3.309(a), and are at least 10% disabled, you may be eligible for disability compensation. Eligible conditions include, but are not limited to, high blood pressure (hypertension), arthritis, diabetes, or peptic ulcers.
- Disabilities that appear even more than one year after discharge, as listed in Title 38 CFR 3.309(a): You may be eligible for disability compensation for the following illnesses: Hansen’s disease (leprosy) (within three years after discharge), tuberculosis (within three years after discharge), multiple sclerosis (within seven years after discharge), and amyotrophic lateral sclerosis (ALS or Lou Gehrig’s Disease) (any time after discharge).
- There is also a presumptive service connection for certain diseases as listed in Title 38 309 (b) – (f) specific as to veterans who served in a tropical location (e.g., yellow fever, malaria, dysentery), veterans who were former prisoners of war (e.g., psychosis, anxiety, osteoporosis), veterans who were exposed during a radiation-risk activity (e.g., leukemia, breast cancer, pancreatic cancer), veterans exposed to specific herbicide agents (such as Agent Orange) (e.g., Parkinson’s disease, type 2 diabetes, prostate cancer), and veterans exposed to contaminants in the water supply at Camp Lejeune (e.g., kidney cancer, adult leukemia, bladder cancer).
- The Promise to Address Comprehensive Toxics (PACT) Act of 2022 is a recent law that adds 20 plus more presumptive conditions for certain veterans who experienced exposure to burn pits, Agent Orange, and other toxic substances. It also adds more presumptive exposure locations for Agent Orange and radiation. Those eligible must have served in the Vietnam War, the Gulf War, Iraq, Afghanistan, or any other combat zone after 9/11 or deployed in support of the Global War on Terror during certain specified times and have a current diagnosis of one of the 20 plus select conditions. As of 5 March 2024, this law has been expanded even further to cover all veterans exposed to toxins and other hazards while serving in the military, at home, or abroad. Thus, in light of this expansion, all veterans deployed in combat zones in Vietnam, the Persian Gulf, Iraq, and Afghanistan wars will benefit, as well as all veterans who never deployed but participated in a toxic exposure risk activity. Listed conditions include, but are not limited to, brain cancer, emphysema, chronic bronchitis, hypertension, and melanoma.
About Secondary Service Connections
A secondary condition is a current disability that is not directly caused by your service but results from a primary condition that has been service-connected by the VA. There must be evidence that the primary service-connected disability directly caused or aggravated the secondary illness, injury, or medical condition.
A secondary condition can be a disabling condition you suffered from before you entered military service that was aggravated by a primary service-connected condition. For example, you had pre-existing hypertension or high blood pressure before you entered the service, and the VA later granted you service connection for a spinal injury that occurred in service. The pain from your spinal injury made your high blood pressure even worse. Thus, you could be eligible for VA benefits for your high blood pressure through a secondary service connection based on aggravation by your service-connected spinal injury. You must be able to provide evidence of the severity of the secondary non-service-connected disease or injury, an opinion establishing that your service-connected disability proximately caused the secondary condition to increase in severity, and medical evidence supporting this opinion.
A secondary condition can also be a disability diagnosed post-service caused by your primary service-connected condition. For example, if you are service-connected for depression and years later develop sleep apnea as a result of the depression, you may be eligible for secondary service connection of the sleep apnea. Your primary service-connected depression caused your secondary sleep apnea in this case. You must be able to provide evidence of the secondary medical condition just as you did for the primary condition and proof of a medical connection between your established service-connected disability and the new condition.
The VA does not have a list of presumptive conditions for these types of claims, with a few limited exceptions. You must provide evidence of the link between your primary and secondary conditions.
Aggravation of a Before-Service Disability During Service
A veteran’s preexisting injury or disease (defined as a disability that would qualify for VA benefits) before entering active service is not considered service-connected by the VA and is, therefore, not compensable. However, suppose you have a preexisting injury or disease that worsened during service. In that case, it will be considered aggravated by military service unless its progression was due to the natural progression of the disease. In this case, all you have to do to establish a service connection is provide evidence that your service activities aggravated your preexisting condition.
Before receiving VA benefits for a pre-existing disability aggravated by military service, you must also prove that you had the condition before entering service. If a disability is annotated in your entrance exam and such disability increases in severity during service, then you are entitled to a presumption of aggravation. The VA must prove through clear and unmistakable evidence (a very high standard) that the increase in severity was due to the natural progression of the disease to rebut the presumption. For example, a veteran’s back injury is noted in his entrance exam. The veteran’s back condition worsens during service, as established by his service medical records. In this case, the veteran is entitled to a presumption of aggravation.
Veterans are also entitled to a presumption of soundness, which means that you were in sound condition (the claimed disability did not exist with exceptions) upon entry into service. So, unless your entrance exam notes there is a pre-existing condition, and you develop a disability or disease during service, the VA must presume that the condition is service-connected unless it can show clear and unmistakable evidence that the condition existed before service and was not aggravated by service. Once again, it is a very high standard for the VA to meet. For example, a veteran has knee problems before service, which his entrance exam does not note. The veteran’s knee problems worsen during service. Based on the presumption of soundness, the VA must rebut the presumption by presenting clear and unmistakable evidence that the veteran’s knee injury existed before service and was not aggravated by the veteran’s time on active duty.
Service Connection for Injuries Caused by the VA Health Care System
A veteran harmed in a VA hospital or other VA facility due to the negligence or mistakes made by VA medical staff or facilities may be entitled to disability compensation. These claims are known as Section 1151 claims. The VA will consider injuries at VA facilities service connected if you show the following: (1) a new or worsened medical condition; (2) this condition was caused or worsened by VA medical care, and (3) accepted standards of care in the medical community were not met. To win these cases, you must prove negligence and that the VA failed to provide informed consent. Suppose the VA’s treatment of a service-connected disability makes that disability worse or creates a secondary claim. In that case, you only have to request an increase in compensation benefits or file a new claim for a secondary condition. You do not have to file a Section 1151 claim.
Contact the VA Disability Appeal Lawyer Team at Gang & Associates
The service-connection requirement for VA disability claims is vital to applying for VA disability benefits. However, as discussed above, establishing a service connection is often challenging, especially for certain types of claims. The VA Disability Appeal Lawyer Team at Gang & Associates are VA-accredited attorneys and only practice VA disability law. We are recognized nationally as top VA disability appeal lawyers and have extensive experience assisting our clients with appealing their disability claims denied for failure to establish a link between their military service and disability. If you believe your disability is service-connected but the VA denied your claim, do not hesitate to contact us at 888-878-9350 for a free consultation to discuss your best course of action for an appeal. You have one year to appeal from the date of your decision letter.