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Five Ways to Establish Service-Connection
Five Ways to Establish Service-Connection
When a military service veteran files a claim for disability compensation with the VA for an illness or disability that resulted from military service, one of the first things a veteran has to establish is that the current illness or disability is connected to the veteran's military service. This is called "establishing service connection."
How to Establish a Service Connection
How to Establish a Service Connection
Here are the five methods of establishing service connection for a current disability, disease, or illness.
1) Direct Service Connection. While a direct service connection can be established in any number of ways, it generally means there is clear evidence of an incident that occurred while the veteran was in service as well as evidence of "linkage" between the incident and the lasting disability. Here is an example: A veteran is paralyzed from the waist down. In military service, the veteran suffered an injury in Airborne School, breaking his back during a parachute landing. In this example, the veteran's paralysis is clearly connected to his military service.
1) Direct Service Connection. While a direct service connection can be established in any number of ways, it generally means there is clear evidence of an incident that occurred while the veteran was in service as well as evidence of "linkage" between the incident and the lasting disability. Here is an example: A veteran is paralyzed from the waist down. In military service, the veteran suffered an injury in Airborne School, breaking his back during a parachute landing. In this example, the veteran's paralysis is clearly connected to his military service.
NOTE: If you are active duty, all diagnosed conditions are direct service connected.
2) Presumed Service Connection. Certain conditions or diseases are "presumed" to be service-connected. The VA has lists of conditions that are presumed to be related to service and their presumptive periods. For example, any veterans who were exposed to Agent Orange during their military service and who now have Parkinson's disease are presumed to have a service connection. Veterans do not have to prove that their current medical condition is related to their military service -- the law presumes it. Diseases that have a presumed service connection include chronic illnesses, tropical illnesses, tuberculosis, multiple sclerosis, and Hansen's disease, provided that they cause the veteran to be 10% disabled or more. If the veteran was a prisoner of war during active service and developed a disease or disability with a 10% or greater rating, diseases such as anxiety, post-traumatic osteoarthritis, residual frostbite, to name a few conditions, would be presumed service-connected. If that person was a prisoner of war for thirty or more days, disabilities to a 10% degree or greater including malnutrition, chronic dysentery, and liver cirrhosis (among many others) would be regarded as service-connected, and that veteran would be entitled to disability benefits. Certain forms of cancer are also presumed to be service-connected in cases where the veteran was subjected to radiation as part of their active military service (such as exposure to nuclear testing or explosion), and the veteran would therefore be eligible for disability benefits.
2) Presumed Service Connection. Certain conditions or diseases are "presumed" to be service-connected. The VA has lists of conditions that are presumed to be related to service and their presumptive periods. For example, any veterans who were exposed to Agent Orange during their military service and who now have Parkinson's disease are presumed to have a service connection. Veterans do not have to prove that their current medical condition is related to their military service -- the law presumes it. Diseases that have a presumed service connection include chronic illnesses, tropical illnesses, tuberculosis, multiple sclerosis, and Hansen's disease, provided that they cause the veteran to be 10% disabled or more. If the veteran was a prisoner of war during active service and developed a disease or disability with a 10% or greater rating, diseases such as anxiety, post-traumatic osteoarthritis, residual frostbite, to name a few conditions, would be presumed service-connected. If that person was a prisoner of war for thirty or more days, disabilities to a 10% degree or greater including malnutrition, chronic dysentery, and liver cirrhosis (among many others) would be regarded as service-connected, and that veteran would be entitled to disability benefits. Certain forms of cancer are also presumed to be service-connected in cases where the veteran was subjected to radiation as part of their active military service (such as exposure to nuclear testing or explosion), and the veteran would therefore be eligible for disability benefits.
Presumptive conditions are here: Presumptive Conditions
3) Pre-Existing Injury Aggravated by Military Service. In this type of service connection, the veteran had a condition prior to military service, and then an event occurred in military service that made the pre-existing condition worse. Example: a veteran had a skin condition prior to entering military service, but due to exposure to certain chemicals in the military, the skin condition was made worse than it ever would have been on its own. In situations such as this, the military service is said to "aggravate" the pre-existing condition. In such cases, the pre-existing condition usually must be noted on the service member's original medical exam, showing that the service member was not originally of sound health.
3) Pre-Existing Injury Aggravated by Military Service. In this type of service connection, the veteran had a condition prior to military service, and then an event occurred in military service that made the pre-existing condition worse. Example: a veteran had a skin condition prior to entering military service, but due to exposure to certain chemicals in the military, the skin condition was made worse than it ever would have been on its own. In situations such as this, the military service is said to "aggravate" the pre-existing condition. In such cases, the pre-existing condition usually must be noted on the service member's original medical exam, showing that the service member was not originally of sound health.
4) Secondary Service Connection. This type of service connection exists when one service-connected disability is the cause of another disability. The second disability does not need to be directly related to military service, but would not have occurred but for the first disability (the one caused by military service). A famous case of this type is of a WWII veteran who was treated for tuberculosis using medicine known to cause hearing loss. The hearing loss was not directly related to service, but it wouldn't have occurred if it weren't for the tuberculosis, which was service-connected. A present-day example is Diabetes Type II. When Diabetes Type II is service-connected, conditions such as peripheral neuropathy should be given serious consideration for secondary service connection.
4) Secondary Service Connection. This type of service connection exists when one service-connected disability is the cause of another disability. The second disability does not need to be directly related to military service, but would not have occurred but for the first disability (the one caused by military service). A famous case of this type is of a WWII veteran who was treated for tuberculosis using medicine known to cause hearing loss. The hearing loss was not directly related to service, but it wouldn't have occurred if it weren't for the tuberculosis, which was service-connected. A present-day example is Diabetes Type II. When Diabetes Type II is service-connected, conditions such as peripheral neuropathy should be given serious consideration for secondary service connection.
5) Service Connection due to Injury Caused by Treatment in the VA Health Care System. If a veteran is injured because of VA hospitalization, treatment, rehab or therapy, the injury is automatically treated as service-connected (38 U.S.C. 1151).
5) Service Connection due to Injury Caused by Treatment in the VA Health Care System. If a veteran is injured because of VA hospitalization, treatment, rehab or therapy, the injury is automatically treated as service-connected (38 U.S.C. 1151).
A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability "in the same manner as if such additional disability...were service-connected" if the additional disability was not the result of willful misconduct and was proximately caused by "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing" that treatment or "an event not reasonably foreseeable." 38 U.S.C. § 1151 (a)(1)(A), (B); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a).
Evaluation of claims brought under 38 U.S.C. § 1151 require multiple steps to evaluate. First, there must be evidence of additional disability or death, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361 (b). To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran's willful misconduct. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.301 (c)(3).
Second, the additional disability or death must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361 (c). Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361 (c)(1).
If additional disability is found, the proximate cause of the disability must have been carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the medical or surgical treatment. 38 U.S.C. § 1151 (a)(1)(A). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability; it must be shown that the medical or surgical treatment caused the veteran's additional disability and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the medical or surgical treatment without the veteran's informed consent. Id.
Alternatively, the proximate cause of the disability may be an event not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1)(B); 38 C.F.R. § 3.361 (d)(2). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361 (d)(2). The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. Id.
If you are unsure if your disability will be considered service-connected, you may want to talk to a VA accredited advocate: County Veteran Services Officer, Veterans disability attorney, or VA accredited Claims Agent.
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