This brief article attempts to describe the legal doctrine of Service Connection—by a fighter pilot to an audience of fighter pilot-minded individuals. Up Front: the caveats…I’m not a lawyer, but I am former fighter pilot who had to read and heed combat rules of engagement and peacetime training rules. Next, this article does not contain legal advice. Also, I do not warranty any of this information as being unchangeable nor do I guarantee that any of it will not change because a new public law is enacted or new VA courts decisions are handed down that in some way alter our understandings of service connection. With all of that out of the way, this is Service Connection Explained.
The thing to remember is that Service Connection is a legal doctrine, that is, it is enshrined within and comes to us out of federal law. The specific place in federal law where you can locate all the of the major points I discuss here is 38CFR (Code of Federal Regulations) Ch. 1, §3.302 to 3.304. It’s easy to do an online search for this federal law content so I do not include a link here (that may break anyhow).
There are five types of Service Connection, each briefly amplified:
1. Direct Service Connection: this can be established in any number of ways; however, it usually means that there is clear evidence of a disability (disease, condition, etc.) and an incident (event) occurred while the veteran was serving. Importantly, this variant of connection links the disability to the event in point of time and/or consequence.
2. Service Connection By Aggravation: here, the veteran usually has evidence that condition (disease, disability, etc.) existed before the veteran began his/her military service. The baseline of this inquiry begins with the entrance physical or what is more recently termed a MEPS examination. Like direct connection above, this involves a proposed linkage between that pre-existing condition and an incident during military service.
3. Service Connection By Legal Presumption: this is addressed in 38CFR CH. 1 § 3.309 and its content is extensive. Notable in this section is the specified diseases and disorders that constitute eligibility for inclusion within a specific presumption. Note that as of 14 SEP 21, VA Secretary Denis McDonough unilaterally extended the presumption period for Gulf War Veterans who are still working to prove up on their service connection that would have otherwise expired 31 DEC 21. In other words, without this extension a Veteran would’ve had to fully develop his/her own case without the benefit of the relaxed burden of individual proof standard which is the cornerstone of presumptive class service connection. Here is a link to the accompanying Federal Register announcement that further explains this recent VA decision. While it’s early days, this Secretary of the VA decision may have the net effect of creating a 10th presumptive class on top of the nine which previously existed. Note: virtually every presumptive class requires that the veteran demonstrate in medical evidence, lay evidence, etc. that the associated condition (disease, disability, etc.) manifested to at least the 10% threshold within one year of discharge (separation or retirement).
4. Secondary Service Connection: this occurs when one veteran disability is the result of another service-connected disability—that was previously awarded. Likely the best example of this notion at work is the case of the World War II veteran treated for tuberculosis with a medication among whose side effects was harm to hearing. When that veteran filed a disability claim for his hearing loss, he was ultimately awarded a rating based upon this principle of secondary service connection.
5. Service Connection Due To Injury: this connection was established to deal with situations in which a veteran’s care within the VA enterprise caused further injury or harm.
This was a high-level discussion of service connection. This outline was not a legal strategy discussion that took any of the above and put them to work within a fully developed case made to the VBA. Furthermore, as we always say around here, if you think you need legal advice, you probably need legal advice. We are not lawyers so do not call on us. Instead, seek out a skilled VA lawyer or a Veteran’s Service Organization (VSO) representative who has some experience in your case specifics. Also, understand that while VSOs are authorized to represent you in your disability claim and service connection claim, VSOs are not created equal. Their success percentages, legal effectiveness, and case construction craftsmanship vary widely.
Keep asking questions until you are satisfied.
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