It’s a straightforward conclusion that if someone loses a leg in combat, their loss of a limb is related to military experience. That is a simple and clear A+B=C situation. However, in many cases, such as hearing loss claims, the direct link between the current condition and an incident in service is far less clear.
Many Claims are Clear Cut, and Much More are Not
We used the example of someone having an enemy assisted amputation above, but what if instead of a combat-related trauma the leg was lost due to an infected cut from a dirty stair rail at the barracks? Well, it happened during service, so it is still presumably service-connected. Take our example a little further, an infection started the day after separation, from an unknown source, and it resulted in the loss of a limb, is it then still service connected? What about if the infection began 2 months after service?
The truth is, while many claims are clear cut, there are lots of VA claims for service connection that are reasonable, but the ties that connect them to service incidents are harder to prove. This issue is why we spent so much time talking about overcoming a service nexus denial in this article.
Service Nexus Denials
Service nexus denials are one of the top reasons Veterans end up seeking the support of an experienced VA claims attorney in the first place. They are hard to prove, and to overcome the denial means getting much deeper into the details of a given Veterans’ service records than most initial claims for compensation delve.
The first step in overcoming the nexus denial barrier is to figure out if there is, in fact, no way to directly tie an injury (mental or physical) to a service incident. It is ok if there is no clear link, but eliminating all the easiest paths first is usually the best course of action.
If there is no clear and direct connection between the current injury or ailment and a service incident, then the particulars of the Veteran’s military service become the next thing to take an in-depth look into, regarding the pursued claims? Moreover, it helps to figure out how the claim(s) fit into the broader picture of the Veterans history – before during, and after service?
An Example Of A Hearing Loss Claim Denial Will Help
A Marine has discharged from service ten years ago and is claiming bi-lateral hearing loss & tinnitus. There’s no direct service connection, no med-call records of ear pain, trauma, or anything related to ears, hearing, or head injuries. The claim is denied because there’s no direct connection to the injury from the Marine Corps Veteran’s military experience. The service nexus is unclear. This claim is a Hard to Prove VA Disability.
Fortunately, “hard to prove” can be overcome with the VA, especially if we remember that the burden of proof is as likely as not, rather than absolute proof beyond all other doubt. In this example, the way to approach a solution is to look at some of the following lines of conjecture.
What Was the Veteran’s Vocation After Service?
This line of questioning is necessary to either establish that alternative explanations are less likely than their military service to have caused the hearing loss or to recognize the alternative hypothesis the VA through a Decision Review Officer or the VA Board of Appeals may raise.
If for instance the Marine Veteran worked an office job for the last ten years and their exposure to loud noises was minimal, it is a much more reasonable argument that combat and training for combat are the likely cause of hearing damage. Whereas, if the Veteran worked in a construction environment the last ten years, after leaving service, the alternative explanation for hearing loss is much more likely to be something that needs to be addressed and overcome. In this particular example, a strong approach is to lean hard on the idea that a 50/50 chance of one proposed nexus vs. another means the VA should side with the Veterans claims when pressed to do so.
What Was the Veteran’s Vocation While in Service?
Again, taking a more wide angle approach means looking at potential alternative genesis, like we just looked at, and it means seeking to look at a lifetime of possible experiences vs. any particular incident. For instance, a Marine Veteran is likely to have spent extensive time firing weapons and operating in loud environments. In this case, making the claim that Marines will be exposed to conditions that harm hearing is about as straight forward as it gets.
Still, obvious for one person is obtuse for the next. So, breaking down the conditions that may harm a service member’s hearing is helpful in making sure there’s no doubt the Veterans experiences were at least as probable as any other alternative explanation. To make this, list out the circumstances, the numbers, the details, as best you can determine. Here’s how you might go about it in a letter to the VA on a Veteran’s behalf.
“Mr. Smith, while serving in the Marine Corps as an admin clerk was exposed to loud noises and severe conditions on a regular basis. Hearing protection was not always readily available nor practical for using due to operational needs. Starting in boot camp, Mr. Smith fired weapons from his right-hand side, was exposed to extreme noise (repeated loud yelling) in close-proximity, on both sides.
In Marine Combat Training (MCT), and required to go through basic training, Marine combat Mr. Smith fired larger weapons and practiced using them in operational environments where hearing protection was not always available. As an admin clerk, Mr. Smith was exposed to loud vehicle noises on a regular basis as he was required to work in close collaboration with armored vehicle sections and was also required to participate in regular weapons qualification and training.
Since separating from military service, Mr. Smith has completed college and worked in software development. Both environments are much less likely than a typical military environment, and especially a Marine Corps armor, weapons, and training environment. Mr. Smith also has no family history of hearing loss and cannot propose an alternative explanation for his condition.
Without an alternative proposal that is more likely than Mr. Smith’s Marine Corps experiences, the VA should acknowledge the Nexus between his current condition and his experiences in the military, and award Mr. Smith the compensation appropriate per his hearing impairment levels.”
This Process Works Well for Other VA Claims Too
We are leaning heavily on the loss of hearing as an example, but this process works well for other impairments too. The basic premise is sound for PTSD, back injuries, knee pain, TBI, and other conditions or incidents that can be hard to prove at first.
We are scratching the surface on this. Please reach out to us and share your thoughts and experiences. There is a lot more to talk about in regards to nexus denials.
