Maryland Bar Bulletin
Publications : Bar Bulletin : May 2007

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 Bar Bulletin Focus

Veterans Law   

The Elements of a Service-Connection Claim

Perhaps one of the most significant and important benefits available to veterans of the United States military is that of a service-connected disability. Simply put, it is recognition by the Department of Veterans Affairs (VA) that a chronic medical disability is the result of a disease or injury incurred in or aggravated by active military service. The purpose of this article is to provide a guideline to the basic rules of establishing service connection. It is not intended to be an exhaustive list, as many such claims involve complex legal and medical issues, much of which is beyond the scope of this article. Moreover, the specific facts of each individual case are unique, and it is these facts that will determine whether service connection is warranted.

The simplest case of establishing service connection is when a chronic disability is originally diagnosed while on active duty, as it is usually clear, under such circumstances, that the disability was incurred while on active duty. However, service connection is not limited to such circumstances, as it may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.
In general, there is a three-part test for claims of direct service connection. First, there must be competent medical evidence of a current disability. If there is no such medical diagnosis, the claim ends at that point. Simply put, without evidence of a current disability there can be no valid claim. Second, there must be lay or medical evidence of an in-service disease or injury. Usually, such evidence will be documented in a veteranís service medical records, but is not limited to this evidence. The third and final element is competent medical evidence establishing a link/nexus between the current disability and the events of military service.

Service connection can also be established for pre-existing medical condition(s) on the basis of aggravation. The law provides that every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service. However, there is an exception for defects, infirmities or disorders noted at the time of the entrance or enlistment examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.

In such claims, a pre-existing condition will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. Temporary flare-ups will not be considered to be an increase in severity, and aggravation may not be conceded where the disability underwent no increase in severity during service. Moreover, for disorders not noted on the entrance or enlistment examination, the law mandates that in order to rebut the presumption of sound condition, there must be clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.

In addition to the foregoing, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability.

Finally, the law provides that there is a presumption of service connection for various disabilities based upon certain circumstances. Moreover, these disabilities must generally be manifested to a compensable degree within a specified presumptive period. For example, certain chronic disabilities are presumed to have been incurred during active service when they are present to a compensable degree within one year after separation from service. Other presumptions apply to disabilities associated with veterans who were held as prisoners-of-war; disabilities associated with in-service radiation exposure; disabilities associated with in-service herbicide/Agent Orange exposure; as well as disabilities resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or within a presumptive period.

As already stated, all of the aforementioned bases for service connection contain their specific and oftentimes complex rules, and it is important to be aware of them if one desires to file a service connection claim. If one desires to obtain more information on these claims, they can contact their local VA regional office.

John Kitlas is Counsel, Board of Veteransí Appeals, for the Department of Veterans Affairs.

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Publications : Bar Bulletin: May  2007