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SECONDARY CLAIMS AND AGGRAVATION OF
PRE-EXISTING
CONDITIONS -- Veterans' Advocate Jim Strickland
looks at the new VA rules.
Veterans' Advocate Jim Strickland
provides regular columns for VA Watchdog dot Org.
If you would like to contact Jim about
his columns, you can email him here...
The archive of Jim's articles
is here...
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Claims that are "secondary" to an original
service connected disability and/or aggravation of a pre-existing
non-service connected disease or disability by a service connected
disease or disability may be compensable by VA. CFR 3.310 says; "A
disability which is proximately due to, or the result of a
service-connected disease or injury, shall be service connected, and
shall be considered part of the original service-connected condition."
A secondary disability may become service connected due to a cause and
effect relationship. There may also be a pre-existing non service
connected disability that is aggravated by an existing service connected
disability. Establishing a claim for a secondary condition that is
clearly the result of an existing service connected condition should be
relatively straightforward. The water becomes murkier as we dive into
pre-existing non service connected conditions and the degree of
disability caused by aggravation of the pre-existing condition by an
established service connected disability. Does the pre-existing
(existing prior to the service connected condition) condition become
service connected of itself or should it be combined with the existing
service connected condition or rated separately? Did this condition
exist prior to the Veteran being brought to active duty? Was it
documented in the entrance physical examination and was there a notation
regarding the degree of the disability caused by the condition?
For example, when you entered the military did you suffer from a knee
injury received while you were playing high school football? During your
entrance exam was the examiner aware of the injury and did he give that
condition appropriate attention to determine the degree of existing
disability? Were there notes made to your record about the knee injury
and the potential for it to cause you problems while on active duty?
Later, when you injured your other leg in combat and sustained a service
connected and compensable disability, was there any thought as to how
that injury may require you to put an additional burden of weight on the
pre-existing injured knee thus causing it further damage? How do you now
compare the degree of damage that was extant prior to your current
injury and deduct that from what you have today?
The decision of if and when to provide compensation for a secondary
disability isn't always clear cut and changes in the way the rules are
applied will often occur without any particular fanfare. For example, in
the past VA might decline to rate as service connected alcohol or drug
abuse secondary to PTSD or other psychological or mental conditions. In
Allen v. Principi the Federal Circuit found that a Veteran is permitted
to receive compensation for an alcohol abuse or a drug abuse disability
acquired as secondary to a Veteran's service connected disability, such
as PTSD. Increased substance abuse may indicate that a service connected
condition has become worse and can result in a higher rating for that
service connected condition.
Another compensable scenario arises in the case of PTSD secondary to
sexual trauma that happened during military service, or if there was
sexual trauma pre-existing prior to military service and the
psychological impact has been aggravated by active duty. Also,
psychological conditions often cause or exacerbate hypertension (high
blood pressure) and hypertension is a known risk factor in heart
disease. A veteran who suffers PTSD or similar disabilities may file a
claim for secondary high blood pressure and heart disease based on his
service connected disability. When a veteran who has a service connected
psychological condition dies of a heart condition his widow may file a
claim that alleges that his death was caused by his heart disease and
that must be rated as service connected due to the original service
connected disability. The same secondary connection may be made for
alcoholic cirrhosis of the liver, jaundice, esophageal varices, stomach
cancer and other sequela of alcohol abuse if that abuse is caused by or
made worse by a service connected disability.
The Veteran and his or her advocate must not ignore all the possible
sources of secondary disabilities. If your old leg injury has caused a
painful limp and you've developed a backache, that might be a ratable
and compensable secondary disability. If you take a lot of medicine for
the pain of the backache that resulted from your old leg injury and that
medicine makes you dizzy or nauseous or causes your hands to shake, you
must consider an application to have the side effects of the required
medicines rated as disabling. If you have significant and chronic pain
from your leg and back injury and the extent of the pain has affected
your blood pressure, causing or contributing to or aggravating your
hypertensive heart disease, the pain syndrome and the hypertension and
the heart disease should all be viewed as disabilities that deserve a
compensable rating. When your chronic pain causes you a psychological
condition such as sleeplessness, anger, the inability to cope or if
you're unable to work because of pain, that must then be considered for
a compensable rating of disability.
When a Veteran files for an award based on a secondary cause and effect
relationship the Veteran must be ready to prove his allegation beyond
any doubt with expert witness testimony. The burden of proof is more
challenging when claiming a secondary disability or an aggravation of an
existing non service connected disability. A well prepared initial
application is more likely to produce positive results than simply a
making a statement that the Veteran believes that this connection
exists. You should submit statements from examining physicians who have
reviewed your records that support your case. The doctors must make
clear statements that in their medical opinion, based on physical
examination and a review of records that he or she believes there exists
a clear nexus between the original service connected illness or injury
and the secondary illness or injury. You should encourage your Veterans
Administration treatment team (doctors, nurses, physical therapists,
social workers, etc.) to include such nexus statements in their medical
records notes. Without nexus statements from expert health care
professionals, your chances of an award without a lengthy appeals
process may be significantly diminished.
In September 2006 VA published a final rule in the Federal Register. A
court decision was made to more precisely define circumstances where a
veteran may be compensated for an increase in the severity of an
otherwise non service connected (pre-existing) condition which is
aggravated by a service connected disability. Here again there are no
clear or immediate answers to a given situation and there will be much
subjective opinion brought to the adjudication by the individual ratings
specialist. In the Veterans Benefits Manual M21-1, Part VI, “Rating
Board Procedures" 7.05 states, "A preexisting injury or disease may be
considered to have been aggravated by active military service where
there is an increase in disability during such service, unless there is
a specific finding that the increase in disability is due to the natural
progress of the condition (38 CFR 3.306)."
In the text of the commentary of the Federal Register VA says, "We are,
therefore, amending the proposed rule to allow the acceptance, for
baseline purposes, of medical evidence created at any time between the
onset of aggravation and the receipt of medical evidence establishing
the current level of severity. The earlier medical evidence will
establish the baseline level of severity for comparison with the current
severity level of severity to determine the degree of aggravation that
may be service-connected and compensated."
Seeking a benefit for a secondary condition that will be rated as
service connected because of the obviousness of cause and effect or
receiving compensation for the aggravation of a pre-existing condition
by a service connected condition can be a complex path to follow. The
complexity increases as the conditions under review become more
disparate. Advance planning and thorough documentation by the Veteran
and the advocate will ensure an appropriate benefit award where
justified. Most importantly, you must provide expert opinion as to a
medical nexus between the service connected condition and the claimed
result or effects of that condition. This is usually best satisfied by
nexus statements from your primary care team at your VHA facility or
from an examiner during a Compensation and Pension (C&P) exam. Beyond
the nexus statement, as with all other claims, your medical record that
shows a history of treatments and the provider appointments you have
complied with will provide the VBA ratings specialist all he needs to
award your benefits. If you're seeking compensation for aggravation of a
non service connected disability by a service connected disability, you
should think about how to prove the degree of disability prior to
aggravation as compared to today and how much of that is a result of the
service connected injury or condition and how much may be natural
progression of the condition. Prepping, planning and thinking it through
at the start will be your key to success.
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Larry Scott
