At VA Claims Insider, we specialize in connecting you with the right medical professional to help service-connect your conditions to prove the “Nexus” requirement under the law.
Remember that in order to be eligible for VA disability compensation, 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, we’re going to focus on the latter part of the law: How to prove service-connection using secondary disability claims, specifically, the side effects of medications you’re taking for other service-connected conditions.
Secondary disability claims are the most overlooked part of a veterans VA disability claim strategy, mainly because VSOs and Attorneys lack the medical experience and expertise needed to assist you.
One of the ways VA Claims Insider can help you “prove” secondary service-connection is by looking for possible medical “Nexus” links based upon the side effects of any medications you’re taking.
Many veterans attempt to connect their Obstructive Sleep Apnea (OSA) secondary to Post Traumatic Stress Disorder (PTSD).
The problem with this secondary linkage approach between OSA and PTSD is that the medical research is questionable at best, and thus, I expect more VA denials than approvals.
BUT…maybe there’s a better way? Well, there is, but 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 SC condition.
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.
There are three evidentiary elements, that must be satisfied for secondary service connection:
- Lay or medical evidence of a current disability or symptoms
- Evidence of a SC primary disability (which substitutes for the in-service event/injury), AND
- Indication that the claimed secondary condition may be associated with the primary disability.
The first part 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 can be satisfied with a veteran’s existing service-connected disability rated at 0% or higher.
The third part 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.
- 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 expertise is ultimately required to establish entitlement to 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.
- 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.
The following types of evidence may give credibility to the claim:
- Medical evidence showing a relationship between the primary SC disability and the claimed secondary disability
- a VA regulation or procedure exists that defines a relationship between the primary SC disability and the claimed secondary disability.
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.
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?
Need more medical evidence to help you win your VA disability claim and get a higher rating?
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