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Monday, April 8, 2019

Secondary Disability Claims? It’s time to start thinking outside the box…


It’s important to remember that in order to be eligible for VA disability compensation and benefits under the law, a disability or condition you suffer from today, must have been caused or made worse by your active duty military service, OR by another service-connected disability rated at 0% or higher.

In this post, I’m going to focus on the latter part of the law: How to prove service-connection using secondary disability claims, specifically, the side effects of any medications you’re taking for other service-connected conditions.

Secondary disability claims are by far the most overlooked part of a veterans VA disability claim strategy, mainly because VSOs and Attorneys lack the medical experience and expertise needed to provide a clear and cohesive strategy.

Now that Military Disability Made Easy is a part of VA Claims Insider, one of the ways we can help you “prove” secondary service-connection is by looking for possible medical “Nexus” links, utilizing our team of medical professionals.

One very clear and well medically documented secondary “Nexus” involves side effects of any medications you’re taking.

For instance, many veterans attempt to connect their Obstructive Sleep Apnea (OSA) secondary to Post Traumatic Stress Disorder (PTSD).

Obstructive Sleep Apnea occurs when your throat muscles intermittently relax and block your airway during sleep.

While this strategy does work on occasion, the problem with this secondary linkage between OSA and PTSD is that the medical research is questionable at best, and thus, I fully expect more VA denials than approvals.

BUT…maybe there’s a better way?

Well, there is, and it requires you to think outside the box.

For example, did you know a veteran recently got secondary service-connected for Obstructive Sleep Apnea (OSA) based upon his current service-connected Plantar Fasciitis?

At first, you might be thinking, “Brian, that doesn’t even make sense. How can OSA be caused or made worse by severe heal pain?”

Well, let’s first take a deep-dive into the law and explore how we got here.

Service-Connection (SC) on a secondary basis requires a showing of causation.

A showing of causation requires that the secondary disability be shown to be proximately due to, or the result of, a primary SC condition.

And by the way, to establish causation, the primary disability need NOT already be SC, or even diagnosed, at the time the secondary condition is incurred. Read Frost v. Shulkin (2017) U.S. Court of Appeals for Veterans Claims (Court) HERE.

Example:  SC was granted for a back disability with radiculopathy effective in 2015.  Credible evidence showed that the Veteran had a 20-year history of back pain and progressively worsening radiculopathy dating back to roughly 2001.  The formal diagnosis of radiculopathy was not made until 2010. The Veteran claimed SC for a shoulder disability in 2016, stating that his early symptoms of radiculopathy caused him to lose his balance, fall, and tear his rotator cuff in 2008.  He provided a medical opinion linking his rotator cuff tear to a fall, and the fall to sensory impairment and difficulty with proprioception due to early symptoms of radiculopathy. 

Result:  As the medical opinion establishes causation for the rotator cuff tear in the shoulder due to the radiculopathy, the requirements for SC on a secondary basis are satisfied. Although the radiculopathy was not formally diagnosed until after the fall, the credible evidence adequately establishes a history of back problems and gradual onset of radiculopathy dating back to 2001.  A finding of causation does not require that the primary disability be formally diagnosed at the time the secondary condition is incurred. Additionally, although SC had not been established for the back condition and radiculopathy at the time of the fall and subsequent rotator cuff tear, a finding of causation does not require that the primary disability be SC at the time the secondary condition was incurred. 

A baseline level of disability, as shown by medical evidence, must be present for an examiner to opine whether aggravation has occurred, and the Veteran’s statement alone, without medical evidence of record showing the baseline level of the claimed disability, is not sufficient to order an examination.

Medical examinations are not to be automatically provided in all cases.  Some degree of judgement must be used in determining whether the threshold has been met to schedule an examination.Consider whether satisfactory evidence exists that shows the presence of the claimed disability and its association with the existing SC disability. 

A medical diagnosis up front is not always required to show the presence of the claimed disability, or its link to an SC disability, but it is HIGHLY RECOMMENDED…

A generalized statement merely asserting a conclusion that a condition is secondary to an SC disability is not enough to satisfy the Element 3 standard for requesting an examination.

Assess the credibility and merit of the claim prior to ordering an examination. Medical evidence showing a relationship between the primary SC disability and the claimed secondary disability. 

The Veteran’s lay statement (personal statement in support of a claim) describing the symptoms present and how they are related to the claimed primary disability.

Medical treatise establishing a known relationship between the primary SC disability and the claimed secondary disability, or a VA regulation or procedure exists that defines a relationship between the primary SC disability and the claimed secondary disability.

Now that we’ve explored a few examples, I’d like to dive into the three evidentiary elements that must be satisfied to prove secondary service connection under the law:

  1. Lay or medical evidence of a current disability or symptoms
  2. Evidence of a SC primary disability (which substitutes for the in-service event, injury, or disease), AND
  3. Indication that the claimed secondary condition may be associated with the primary disability. 

The first part (#1) can be satisfied with a veteran’s personal statement, a buddy letter, or any existing medical evidence in service treatment records, VA medical records, or any private medical records.

The second part (#2) can be satisfied with a veteran’s existing service-connected disability rated at 0% or higher.

The third part (#3) can be satisfied with a credible medical “Nexus” opinion from a qualified medical professional.

SC on the basis of aggravation of a non-service-connected disability (NSC) may be specifically claimed or may be considered as a part of the claim for secondary SC as directed at M21-1, Part III, Subpart iv, 6.B.5.a. 

BUT, pursuant to 38 CFR 3.310(b) and M21-1, Part IV, Subpart ii, 2.B.5.c, the following additional factors apply when determining whether examination is warranted:

Medical expertise is ultimately required to establish SC on a secondary basis, but the threshold for ordering an examination (aka a C&P exam) is low. However, there is still a threshold that must be met before an examination is provided.

The following types of evidence “may” give credibility to the claim:

Example:  Veteran claims stomach problems secondary to his SC heart condition.  He indicates that since he began taking prescribed medications two years ago for his heart condition, he has experienced stomach problems to include constipation, pain, and indigestion.  There are no specific diagnoses relating to his stomach symptoms noted in the evidence of record. 

Analysis:  While the Veteran’s lay statement is not sufficient to ultimately prove the claim, it is sufficient in this instance to warrant an examination.  The Veteran is competent to describe his symptoms and the possible association of symptoms to his SC condition. Furthermore, his statement appears credible when considering the evidence at hand.  

Example:  A Veteran submits a statement indicating that he has hypertension secondary to his SC low back condition.  Medical evidence of record shows no treatment for hypertension and normal blood pressure readings over the last three years.

Analysis:  Although the claimant is competent to describe symptoms of a disability, his statement that he has hypertension secondary to the low back condition is not credible as competent medical evidence in this case is required to show elevated blood pressure readings or establish a diagnosis of hypertension.  Although Veterans are competent to attest to their symptoms, they are not generally competent to make their own medical diagnoses.  The Veteran could attest to symptoms he experiences associated with hypertension, such as dizziness or headaches, but he is not competent to make medical diagnoses.  The reason the medical evidence would be required in this case is because the medical evidence of record shows normal blood pressure readings over the last three years and no diagnosis of hypertension.  Consequently, the Element 1 standard requiring medical or lay evidence of a current disability has not been met.  The substitute evidence from the Element 2 standard is met on the basis that there is an SC disability, a low back condition, present and the claim is being made on a secondary basis.  However, the Element 3 standard is not met because the Veteran has submitted a generalized statement suggesting the conclusion that the hypertension is secondary to the back condition, but there is no specific discussion or evidence correlating the hypertension to the back condition.  Additionally, there is no VA regulation, procedure, or medical treatise establishing an association.  Because the three evidentiary elements are not satisfied, no examination is warranted.

Okay, enough legal jargon, now back to my earlier example of Obstructive Sleep Apnea (OSA) secondary to Plantar Fasciitis. Let’s explore the facts a bit.

The Veteran provided a personal statement, a “lay statement” under the law, as well as a credible medical “Nexus” letter that cited relevant medical research and literature regarding side-effects of the medications he was prescribed for his severe heal pain, the Plantar Fasciitis.

Weight gain was one of the side effects of the pain management medication he was taking. Medical research studies from the Mayo Clinic were cited in the medical “Nexus” opinion, which clearly met the “showing of causation,” standard BECAUSE the Obstructive Sleep Apnea on a secondary basis was shown to be proximately due to, or the result of, the Plantar Fasciitis.

Obstructive Sleep Apnea has been medically linked to weight gain, which shows causation. Thus, as a result of the veteran’s weight gain, the medical “Nexus” letter stated that the Obstructive Sleep Apnea was “at least as likely as not” to have been proximately due to or the result of the medication side effects, which were taken to manage the pain of his Plantar Fasciitis.  

So now I’ve probably got you thinking, what can you possibly connect on a secondary basis due to side effects of any medications you’re taking for your current disabilities?

If you need some help, please send us a note through our “Contact Us” page here on Military Disability Made Easy.

Want to listen to the new VA Claims Insider Podcast? Click HERE now.

*****


Brian Reese is an Air Force service-disabled veteran, and his personal frustration with the VA disability process led him to found VA Claims Insider in 2016, which provides veterans with expert resources for successfully submitting winning VA disability claims. He is also the CEO of Military Disability Made Easy. His eBook, "The 9 Secret Strategies for Winning Your VA Disability Claim,” has been downloaded more than 250,000 times in the past three years and is the #1 rated free VA disability claims guide for veterans. Brian is a former active duty Air Force officer with extensive experience leading hundreds of individuals and multi-functional teams in challenging international environments, including a combat tour to Afghanistan in 2011. Brian is a Distinguished Graduate of Management from the United States Air Force Academy and holds an MBA from Oklahoma State University’s Spears School of Business, where he was a National Honor Scholar (Top 1% of Graduate School class).

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