Tacoma Disability

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Everything You Need to Know About Overcoming a VA Service Nexus Denial

If you’re in the VA service-connected disability claim or appeal stage you likely want to know what you can do to get the VA to start making the right decision.  There is a lot of terminologies that you’re already picking up that you never really had use for before.   For instance, at some point, the term, service nexus, or nexus letter is likely to come up.  This will either be from your advocate, or in one of the many VA requests for information.

Or in the worst case scenario – in the VA denial letter.

The VA Keeps Asking for a Service Nexus?

Sure, this is one of those terms you can probably put the definition of together from context clues alone, but we’ll lay it out here so that when we describe what you need to know, you’ll be tracking.

A nexus, or service nexus, is the event (or item) that ties your current condition together with your service.

For instance, if you have a bad back today – your service nexus might be falling off a 5-ton and requiring light duty due to back spasms.

Ideally, the service nexus is backed up by documented treatment or at least written proof that something occurred.  However, that’s not always possible.

When a Service Nexus is Hard or Impossible to Establish

Sometimes, often actually, claims are denied because there is no clear evidence, other than personal testimony, that demonstrates a service nexus.

“You have bad knees, but that could have been caused by 20 years of being a machinist.  And you never went to medical for your knees – we can see that from your medical records.”  <- This is how the VA sees it without clear evidence of a nexus event. 

In a great deal of denied claims, the biggest barrier to getting a claim overturned on behalf of the Veteran is establishing that service nexus when evidence isn’t immediately available.  And in some cases, it is almost impossible to determine without getting creative and looking beyond the black and white of dusty military records.

Getting Creative in Approaching a Lack of Service Nexus

When a service nexus isn’t immediately forthcoming both the Veteran and the advocate (or attorney) have to start looking at other similar claims to see how they have been successfully appealed in the past.  Decisions at the Board of Veterans appeals are not necessarily precedent-setting, so it’s very common to see a denial at the initial claims level for something that has been successfully appealed many times elsewhere, with similar levels of evidence.  So, look to similar cases = step 1.

Step 2 in getting creative is to look at the broad scope of not only the claim but the entire service record.  And potentially of the life of the Veteran during and after service.

An example of where this is commonly the only effective approach is in the case of Military Sexual Trauma (MST).

MST as a Common Example for Lack of Service Nexus

More-so than most VA disability claims, conditions arising from sexual assault in the military is prone to run into the barrier of lacking evidence.  Meaning, claims for both mental and physical health issues related to MST are often denied for lack of a clear service nexus.

For many reasons, there’s often a gap of records relating to a sexual assault in the military.  One reason being that service members don’t always disclose that an assault occurred, as it often is/was perpetrated by a team member or supervisor.  Another reason being that there are multiple ways to report an assault in the military and not all of these methods require or allow for the keeping of records related to the assault.  (This is a topic we’ll have to cover in much more depth at some point in the future!)

These are just a couple (of many) reasons why it’s common to lack a service nexus for conditions arising from MST.  But we’re using MST as just one example of how evidence can be hard to find if it exists at all.  Fortunately, we can use a great approach that can work for demonstrating service connection in MST claims lacking evidence – and use that approach to get creative in other types of disability claims.

Approaches to Correcting The Missing Service Nexus Problem

We talked about it a little bit a couple of paragraphs ago – about taking a more holistic approach to claims lacking clear evidence of a nexus.  However, we didn’t elaborate at that point because we needed to first cover how a lack of service nexus can (and does often) occur.

We gave some ideas, including taking a look at other aspects of service and personal life that help.  By help, we mean to use these context clues to construct a virtual nexus and to deconstruct any other viable alternative nexus.

Let’s use the MST example some more and see how looking at the totality of a Veteran’s service helps us to build a service nexus where the service record doesn’t definitively show one.  If the Veteran’s claim is for a mental health condition resulting from the sexual assault, but the Veteran was not diagnosed until 10 years after they discharged, how can we bridge this gap?  Looking at the service, looking at the home, and looking at life in general.

Service Connection Nexus

Still using MST as an example, we look at the totality of the Veterans service records.  Starting with why the Veteran entered service in the first place.  How well they did at basic training/boot camp.  And then look at their career progression, including schools, accomplishments, leadership, challenges, and any other significant events or patterns of success or failure.  The point isn’t to judge or to demonstrate a likelihood of something occurring, it is to establish a baseline of behavior.

This baseline is often skewed from the point in time that a service nexus would be in the records if the records had existed.  The goal is to determine if for some unknown (to the records) reason the normal pattern of behavior of the service member changed.  In the case of MST, it might look like someone had an “average” enlistment with a normal career progression but starting around their third year of service (using a random date for example purposes only) they started receiving Article 15’s for being late to formations, not showing up to duty, being intoxicated, etc.

Although a service nexus doesn’t clearly exist, that’s a deviation from normal that a skilled advocate can start to build the picture of a service nexus from.

Life As An Additive Cause to Your Service-Connected Disability

Quite often, the deviation in behavior isn’t relegated to just service either.  In many cases, whatever challenges a service member is having at work (duty) is reflected in how well they adjust at home afterward.  Not all situations end in divorce, fights, or frustration though.  Again it’s about establishing a baseline and looking for deviation.

Did a service member like to take hiking vacations and then all the sudden stop after an alleged injury?  In the case (above) of MST, did a service member all the sudden start isolating from friends, peers, favorite past-times?  Did they start shopping at a grocery store 20 miles away (do they have the receipts to show this)?  You can start to see how these extra details also help to start building that virtual service nexus too.

Discrediting Alternative Nexus Suppositions

While working through this history, and looking for alternative approaches to establishing a service nexus, it’s a very good idea to start thinking about potential alternative origins of any disabling conditions.

For example, if the claim is for hearing loss or tinnitus, and the Veteran was in combat arms, or around loud machinery (ships, engines, airplanes) you would normally draw your own conclusions as self-evident.  However, what if they went into law enforcement, heavy machinery, construction, or some other potentially noisy environment after their service?  All the sudden the idea of “there’s no other explanation” starts to deflate.

You don’t want to get surprised by the VA letter stating that

“we find it more likely than not the genesis of condition xxxxx is due to the Veteran’s subsequent employment in yyyyy and not due to their experience as zzzz while in service.”

Again, this is why it’s necessary to look at the broad scope when a service nexus is elusive.  You have to both construct a nexus and destruct alternative explanations.  To do this you have to know what you’re doing and you have to have awareness of how a nexus plays into overturning a denial of a service-connected claim.

Getting a Doctor’s Opinion on Your VA Service Connection Claim

The great thing about this approach is that it lends itself well to collaboration among experts.  The Veteran is the expert on their own history, the advocate (or attorney) is the expert on Veterans Law and what needs to be done, and the doctors or clinicians treating a Veteran are the experts on the current and historical conditions afflicting the Veteran.

Doctor’s and clinician’s opinions go a long way in establishing a nexus, especially when they are written in such a way that they take into account potential alternative (and non-service-connected) causes for the Veterans condition and discount them as more likely than the Veterans service itself as the cause.  That’s kinda wordy, so let’s look at an example.

Doctor Smith is writing an opinion about a service nexus on a Veterans impairments.  Having no foreknowledge of what the Veteran is claiming and having no knowledge of what the VA needs to know, the good doctor writes something to the effect of:

“I have treated [Veteran] for 6 years for [injury/illness] which could be related to his/her military experience.”  ~Doctor Smith

The good part about a note like this is that the VA won’t be able to dispute treatment or really diagnosis.  The bad part is that this will never get the Veteran over the service-nexus gap.

Getting the Correct Doctor’s Opinion

The great thing about having made it this far is that you now know how and why establishing a service-nexus can mean doing a bit more work on the part of the Veteran or advocate (attorney).  Working with a Dr. to help establish that nexus is no different.  It does mean you may have to educate them a little on what exactly is necessary or needed.  Doing so means empathizing with what the doctor might be comfortable stating.

From the doctor’s perspective, they are hesitant to say that 100% – beyond a doubt, any condition you have is the direct result of any experience!  What if they state that and it comes to be it wasn’t that at all?  It’s a professional reputation issue, it’s a medical certainty issue, and generally, it’s a bit of an “I’ve been burned before” issue.

You can help to make this easier for a doctor by breaking down exactly what is needed and what the basis for that request is.  Which of course means you need to know it yourself.

The Basis of Evidence for a Service Nexus

As with all things related to your claim, you need not be 100% certain that an injury is a result of what you believe it to be.  In fact, you need only be 50% certain.  It is the basis of: “as likely as not.” And you can use this to frame your discussion with a doctor around service nexus.

Remember what we said about why doctors are more likely to write a generic statement… the only fact they can assert with certainty is that they’ve been seeing a Veteran for an amount of time.  Conversely, the Veteran wants them to assert that their conditions, for which they’re being treated, are related to xxxxx instance in their military service.  You’re probably starting to see how to connect these two at this point.

7 Steps to Help Your Doctor in A VA Service Nexus Support Letter

Step 1: Be very specific about what you’re asking the letter of support for.

Step 2: Be very specific about what you want the letter of support to say.

Step 3: Provide examples of the language you want the letter of support to use.  Including:  “as likely as not”– also provide the exact rating criteria the VA needs to see to make a rating decision. Don’t let the VA guess what your rating should be!

Step 4: Ensure the doctor knows that you’re looking for an “as likely as not” opinion – meaning, there might be other causes, but at best they are no more likely to be the root cause.  They are at most 50/50.

Step 5: Make sure the doctor only covers the service nexus as a possible cause.  However, if they do elaborate other potential causes, ask that they provide an opinion why the military experience is more likely than those causes to have resulted (or made worse) the current condition being treated for.

Step 6: Dr’s will sometimes go into too much detail and claims get denied because in those details they accidentally put forward alternate nexuses.  For this reason alone (and many others) review what the doctor has written.

Step 7: Say thank you!  This can be very uncomfortable for some doctors to do.  But they usually want to see the best result possible for Veterans as their clients.

The Better Doctor’s Service Nexus Opinion

At this point, if you have a doctor on your side, an injury/illness being treated and a desire to overcome a VA decision – then a letter similar to the following will go a long way in helping to both overcome the service nexus barrier and to establish a treatment pattern.

Doctor Smith to VA on Behalf of Veteran XXXXX

“I am a [fill in the blank certification and specialty] doctor and have been treating [Veteran] for [length of time].  

[explanation of Veterans impairments/injuries] + [a reference to how they impair them per the rating schedule]

In my professional opinion, it is at least as likely as not that [Veteran’s] condition(s) are related to an incident that occurred during their military service.  Having reviewed in depth the professional and personal life of [Veteran] before, during, and after their military service, I do not believe that there is another more-likely source of the condition(s) I am treating them for today.  If there is another source, it is certainly not more likely than [Veteran’s] military service experiences, and would only have exacerbated conditions more likely than not to have originated during their military experience.  

If I can provide clarification on any of my statements, please reach out to me.  

Doctor Smith”

Final Thoughts

One thing to remember, and to remind everyone, is that along with other items in a Veterans claim the burden of proof is 50/50.  This is very much to the benefit of Veterans.  In many cases, the records of Veterans are filled with holes or outright lost to time.  Establishing for a fact that a condition today is related to a Veterans military experiences can be difficult to do at a 50/50 level, imagine if you had to prove it beyond a reasonable doubt!

Fortunately, you don’t.  Though, most people do not realize or understand what this means.  For that reason alone, you or your advocate (attorney) need to keep reminding doctors, friends, associates, anyone who is providing supporting statements or evidence on your behalf that they need to think in the “as likely as not” manner rather than the absolute certainty manner.  In fact, you have to remind the VA of this as well.

If you’re at the point where you’re appealing a denial, this and many other reasons are why having a skilled advocate or attorney in your corner is a benefit.  In addition to knowing these types of issues, a great advocate or VA claims attorney will also know how to go about bringing them together into an argument that the Board of Veterans Appeals has a much harder time refuting.

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