Secondary Service Connection

Transcription

1 Secondary Service Connection Pat Byers American Lake VA Medical Center 9600 Veterans Drive Building 16, Room 110 Lakewood, WA Voice (253) Fax (253)

2 Definition Any Disability that is caused by a Service Connected Disability can be Service Connected. 38 CFR Disabilities that are proximately due to, or aggravated by, serviceconnected disease or injury. (a) General. Except as provided in 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 2

3 Definition In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held to be the cause of that injury. There are two types of causation in the law: cause-infact, and proximate (or legal) cause. Cause-in-fact is determined by the "but for" test: But for the action, the result would not have happened. For example, but for running the Red Light, the Collision would not have occurred. For an act to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact. 3

4 Proximate via Merriam-Webster Dictionary 1. : immediately preceding or following (as in a chain of events, causes, or effects) <proximate, rather than ultimate, goals Reinhold Niebuhr> 2. a : very near : close b : soon forthcoming : imminent 4

5 Types of Secondary Service Connection 1) Direct 2) By Aggravation 3) By Regulation 4) VA Manual 5) Special Rules 5

6 Direct Secondary Service Connection Direct Casual Relationship between Injury or Disease Evidence Required o Diagnosis of a Secondary Condition o Medical Opinion Examples Diabetes, Knee, Back, Impotence, Medication 6

7 Aggravation of Non Service Connected Disabilities (38 CFR 3.310) (b) Aggravation of NSC Disabilities. Any increase in severity of a NSC Disease or Injury that is proximately due to or the result of a Service-Connected Disease or Injury, and not due to the natural progress of the NSC Disease, will be Service Connected. However, VA will not concede that a NSC Disease or Injury was aggravated by a Service-Connected Disease or Injury unless the baseline level of severity of the NSC Disease or Injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the NSC Disease or Injury. (Authority: 38 USC 1110 and 1131) 7

8 Aggravation of Pre- Existing NSC Disabilities 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 accepted on duty? Was it documented in the entrance physical examination and was there a notation regarding the degree of the disability caused by the condition? 8

9 Aggravation of Pre- Existing NSC Disabilities Aggravation Worsens a Non-Service Connected Condition Evidence Required Cannot be due to Natural Progression Medical Evidence showing baseline of NSC Condition prior to aggravation & Medical Evidence showing the current condition of the disability Examples Hypertension, Heart Condition, Medications 9

10 Secondary Service Connection by Regulation ( 38 CFR 3.310c) (c) Cardiovascular Disease. Ischemic Heart Disease or other Cardiovascular Disease developing in a veteran who has a Service-Connected Amputation of one Lower Extremity at or above the knee or Service-Connected Amputations of both Lower Extremities at or above the ankles, shall be held to be the proximate result of the Service-Connected Amputation or Amputations. 10

11 Secondary Service Connection by Regulation (M21-1MR, III, iv, 4.F.22.e) Grant Service Connection for Hypertension if Diabetic Nephropathy Diagnosis is before Hypertension Deny Service Connection if Diabetic Nephropathy Diagnosis is after Hypertension If not clear the VA must request a Medical Opinion 11

12 Paired Organs and Extremities (38 CFR 3.383) (1) Impairment of vision in one eye as a result of Service- Connected Disability and impairment of vision in the other eye as a result of Non-Service-Connected disability and (i) The impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or (ii) The peripheral field of vision for each eye is 20 degrees or less. 12

13 Paired Organs and Extremities (38 CFR 3.383) (2) Loss or loss of use of one kidney as a result of Service Connected Disability and involvement of the other kidney as a result of Non-Service-connected disability. (3) Hearing impairment in one ear compensable to a degree of 10 percent or more as a result of Service Connected Disability and Hearing Impairment as a result of Non-Service Connected Disability that meets the provisions of 38 CFR in the other ear. 13

14 Paired Organs and Extremities (38 CFR 3.383) (4) Loss or loss of use of one hand or one foot as a result of Service Connected Disability and loss or loss of use of the other hand or foot as a result of Non-Service Connected disability. (5) Permanent Service Connected Disability of one lung, rated 50 percent or more disabling, in combination with a Non-Service Connected Disability of the other lung. 14

15 Examples (38 CFR 3.383) If a veteran is Service Connected for Lumbar Condition and Non- Service Connected for a Left Knee Condition. If the Service Connected Lumbar Condition aggravates the NSC Left Knee Condition, the veteran can be Service Connected for the increase of the Left Knee Condition. If the Left Knee Condition creates a disability of the Right Knee, the veteran can be Service Connected for the Right Knee. If the veteran subsequently falls due to either of the Knee Conditions and dies as a result of the fall, the Survivors may be entitled to Service Connection as the Cause of Death. 15

16 Examples Another example could be a veteran who was in the Army for 20 years during her military service, she was diagnosed with hypertension. After her discharge, a Service-Connection Disability was established for hypertension. She was subsequently diagnosed with a heart condition. A Service-Connection for her heart condition may be established as secondary to the hypertension. Another development from the Veterans Administration is they now consider depression as a secondary condition to Traumatic Brain Injury (TBI). Depression is also a common secondary condition when pain generated by the Service- Connected condition causes depression, insomnia or anxiety. If a veteran has a condition that causes him or her to be depressed, the depression can be pursued as a secondary service-connected condition. 16

17 Examples Medication taken for a service connected condition may cause the veteran to have side effects that are disabling. Certain psychotropic medications create situations where the veteran cannot concentrate, work or even drive. These medications, if continued for the initial disability, may create a situation where the veteran can file for the disabling condition caused by the medication. When chronic pain causes a psychological condition such as sleeplessness, anger, the inability to cope or if they are unable to work because of pain, that must then be considered for a compensable rating of disability. 17

18 Development Some claims are relatively straightforward. Others, however, can be complex. Here are some things to keep in mind when seeking VA Disability Benefits for a Secondary Service Connection Claim: Ensure that the Service Connected Condition is on record or that you can substantiate the claim of Service Connection for the Primary Condition. You will need an expert medical opinion about the cause and effect relationship of the Service Connected Disability and the new condition. It is important that your medical records show diagnosis and treatment of the Secondary Condition. 18

19 Development There are some Special Rules pertaining to LOD s, Tobacco Use, Alcohol Use, and Willful Misconduct. If you run across any of these and need assistance, contact your RFS or you are welcome to contact me. Lastly, an interesting Court Case to read is Allen v. Principi 237 F3d 1368 which discusses Mutual Exclusions in some instances. In this case; The Federal Circuit found that 38 USC 1110 permits a veteran to receive compensation for an alcohol-abuse or drug-abuse disability acquired as secondary to, or as a symptom of a veteran's service-connected disability. According to the Federal Circuit, section 1110 precludes compensation only in two situations: 1) for primary alcohol abuse disabilities; and 2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. The Federal Circuit defined "primary" as meaning an alcohol abuse disability arising during service from voluntary and willful drinking to excess. 19

20 Questions & Comments Thank You and Have a Safe & Enjoyable Fight back Home Pat Byers (253)