So far we have discussed service connection writ large. This short article is focused on ideas that underlie Direct Service Connection. Before proceeding, a caveat: as you know we are not lawyers here, so if legal counsel is what you seek, then obtain legal counsel. All we do is throw light on what any of us can find when we read the federal code, VA documents, and the VA handbook. That disclaimer out of the way, onward…
Recall that Service Connection as defined in 38CFR Ch. 1 § 3.306 has five distinct types. The type we will focus on in this brief article is Direct Service Connection. Direct Service Connection can be established in a number of ways. Simply put, direct service connection means there are two concepts present: clear evidence of a disability and the exposure/event occurred while the Veteran served in the military. Importantly, there is also sufficient evidence linking those concepts. Let’s unpack all that.
First, evidence must exist of a disability. Unfortunately, the VA will not solely take your word for it. To begin, when we say “evidence,” we mean two types, and only two types: medical evidence and lay evidence. Strictly speaking, medical evidence is found in two places: your military healthcare records or the written opinion of a qualified medical professional. Lay evidence is different but it can be equally powerful as medical evidence. Here are a few notional examples of “lay evidence”: your flight commander in squadron X writes and attests via signed statement that during deployment in a combat theater of operations, he observed that you developed condition X. Here’s another…your spouse attests that you were seen by a military healthcare professional and you were given diagnosis X for potential disorder X though there appears to be no mention of the diagnosis in your flying healthcare records. Bottomline: if anyone tells you that lay evidence lacks worth, stop talking to that individual…about VA claims.
What follows are a couple of tips gleaned from my claim appeal process that eventually produced the disability rating I was legally entitled to:
• You must know what is in your VA C-File: your VA healthcare records. Write to the VA to get a copy of your C-file. Do not expect to see it any faster than 90+ days after your request.
• When you craft the narrative block in your VA form 21-526EZ resist the temptation to tell off every VBA claims examiner you have experience with. Why? They are not evil. They are—the majority of the time, doing the best they can by wading through writing that is unclear and reasoning that is not helpfully developed.
• You believe in the truth of your claim’s statements. But, to any VBA examiner unless/until you back it up with the two types of evidence (above), the examiner may not embrace your truth.
• Just because you supply what you think meets the test for evidence, does not guarantee that “your stuff” qualifies as evidence worthy of consideration by an examiner. I learned this lesson the hard way. Here’s an illustration to convey three principles I learned about what satisfies the test of worthy evidence. Story: I’m a decent shade tree electrician—I know what I’m doing but I can’t defend my work subject to inspection because I lack a license. Let’s say I’m doing a little re-wiring work and load management improvement in my shed out back. This particular tasks send me to my electrical jobs tool bag looking for my circuit tester. As I rummage toward the bottom of the bag, I encounter needle nose pliers, a wire stripping tool, and three different Philips screwdrivers before my hand finds the circuit load tester. Here’s where a key evidence rule comes in…any examiner will apply the idea of whether something you call evidence is material. If the examiner is seeking a circuit load tester but you put forward a wire stripper, then claim evidence fails this first test. Okay, back to my shed wiring task. After I tested the circuit and found it safe to work on, I saw that I needed a slotted screwdriver to remove the outlet cover. Back to my bag…my hand pulled out a large Philips screwdriver and a more size-appropriate slotted screwdriver. The fact that I need a screw driver and found two albeit different screwdrivers gets at another key idea I learned the hard way: probative. However, I need only one of the two screwdrivers I have in my hand. I put the unhelpful tool back in the bag and use the narrow slotted screwdriver to remove the outlet face cover. This is an example of relevance. Three key ideas: material, probative, and relevant.
Returning to the introduction, this direct service connection article is under “Aviator Cancer” and not “VA Claim Support.” Certainly some of what is above is helpful to know in general case development. However, let’s re-focus on aviator cancers. Say you located a military cancer study that concludes that military aviators are at a statistically higher likelihood of developing a certain cancer that you were diagnosed with seven years ago. Additionally, you are not in remission and are seeking service connection.
As you look over the study, you note that one of a handful of cancers cited is indeed a cancer you are actively fighting. Also, you separated from the Air Force 19 years ago. As you read and research applicable VA law you are wondering if the study can help you demonstrate that your cancer is linked to things you were exposed to in your military service 19 years back. I’m not a doctor or a lawyer so I tread carefully here, but follow me through the CFR that every Veteran can read…
Is the cancer study material? The cancer study identified facts that addressed your cancer that related to your cancer diagnosis. It is material. Is the study probative? In this case, the study calls out a cancer you suffer from. Caution: do not conclude this is a slam dunk question/answer probative matter. Reread the study closely. Have your spouse read the study then ask him/her to judge whether the study is probative as that term is explained here. Next, you review your medical cancer diagnosis and the particulars of the cancer study. Because the study says specific things about your specific cancer, you judge the study to relevant.
Here’s two more concepts to wrap your arms around; again, I’ve got plenty of scar tissue here. The first of these two concepts is competent evidence. Again, I will borrow an analogy to best make a point as to what competent means. Back to the electrical work in my shed…If I need to finish today’s electrical work with assured safe circuits, what criteria do I use to determine whether the job is done safely? Do I use my wife’s opinion that the lights and switches operate correctly? Do I call my neighbor over to assess my work? Or, do I call my friend who is an experienced electrician to assess my work? My wife and my neighbor both have degrees of competence in the matter; that is, they can equally ascertain whether the shed circuits work. However, the electrician is the person with the professional training and experience to determine whether my work properly met my objectives.
The second concept is evidence credibility. Here, it can be tough to pick credible evidence out of the clutter of numerous other facts. To boil it down credible evidence is synonymous with believable. Between my wife (don’t tell her), my son, and my electrician friend—who owns his own electrical contracting company, he is the most qualified and yes, believable when he judges that I safely and successfully re-wired my shed.
If you faithfully, correctly, and effectively worked out all of the above principles and precepts, are you assured of succeeding at direct service connection. Sadly, no. Why? Because as I discovered in my claims appeal journey, there are other factors such as bias and integrity. All of this adds up to a handful of important notions. Chief among them, if you cannot or do not know how to fully develop your own case and put concepts outlined here to full use, locate a VSO, accredited agent, or VA lawyer to fashion a winning claim package. This article is titled, “What Is Direct Service Connection?” What it did was illustrate how simple ideas about evidence are crucial to eventually obtaining direct service connection. See related articles under the “VA Claim Support” button. Go well.
|
