EXUS: The Link Between Then and Now February 2000

EXUS: The Link
Between Then and Now
February 2000

As discussed in the January 2000 column, there are three steps to well grounding your claim for VA disability benefits. The first is medical evidence of a current health problem. Secondly, you must prove that an injury or disease occurred or was aggravated while in active military service. The third is proving a nexus or link between one and two. VA turns down thousands of claims each year by saying "no nexus". What can you do to overcome this hurdle? Read on.

It is critical to understand that your statements or testimony about any relationship between the inservice problem and today's problem count for practically nothing. Only the opinion of a doctor or other medical expert will establish that needed medical link. That's the rule--it's been upheld in court--like it or not that is the way it works.

Here's an illustration of the nexus problem. Joe pulled a tour in Nam in 1969. While loading boxes of ammo into a jeep, he threw his back out and was laid up in a hospital for four weeks in traction where x-rays showed a fractured disc. With pain medication and rest he was able to avoid surgery, return to duty, finish his hitch, get a job back in the world and start raising a family. The back never got any better. He couldn't afford medical care so with heat pads at night and aspirin during the day he worked for another 12 years. When the back got so bad that he couldn't go anymore, he filed for social security disability and got it. He filed for VA disability (you can draw both) and was denied because no doctor had stated in writing that his present bad back was related to the back injury inservice. Joe testified under oath that his military back problem never improved and that the injury then was the problem now. VA wouldn't accept this as proof of nexus because Joe is not a doctor and no doctor had given a medical opinion that today's back disability was related to the military injury. In short, no nexus.

Note one important point here. A VA denial on nexus doesn't have anything to do with whether they believe Joe. In fact, VA is required to believe Joe's statements at this stage of his claim. They must assume that Joe is telling the truth about the back never getting any better and to believe him when he says the back got worse over the years. But even though they believe Joe, the rule is they cannot grant benefits unless a doctor examines Joe and says that it is "likely" that or "more probable than not" that today's bad back is linked to the injury inservice.

So, you must get a favorable doctor's opinion to draw a check. Must you get that Doc's statement before filing your claim? Not necessarily. There are two main considerations here. First, the effective date of your VA claim is whenever VA receives the first written notification from you that you want to file a claim. Establishing that effective date is truly important because if and when your claim is granted VA owes you money from the effective date forward. So, if they get your letter saying you want to file a back claim on say March 1, 2000, and your claim is awarded March 1, 2001, they owe you 12 months of retroactive benefits. It comes in one fat check. On the other hand, as soon as your claim is officially filed one of the first decisions VA will make it is whether your claim is well grounded. If that Doc's opinion about nexus is not then a part of your claim you will be notified that you have 30 days to well ground your claim or lose. So, you may want to have that medical evidence in file from the git-go to avoid that crunch.

Do you have to pay for your medical exam? A lot of veterans do and consider it a good investment. A totally disabled vet with no dependents gets over $2100 a month -- tax free. But you might get a free exam at a VA hospital because after you file your claim VA can schedule you for a Compensation & Pension exam with one of their Doc's to see if there is nexus. The problem is they can do this. There is no requirement that it be done so if they don't and you don't then there is no medical evidence of a nexus and you lose.

There are a few exceptions to having to have a Doc's opinion on nexus. Indeed, in VA disability law there are exceptions to almost every rule. To find out about the exceptions to the Doc's opinion rule you'll have to tune in to next month's column. Semper Fi.

Clark Evans is an attorney who handles veterans disability
and pension claims on appeal. His articles generally discuss the
VA compensation process and should not be construed as legal
advice. Your specific circumstances should be discussed with
a qualified veterans advocate to determine how the generic VA
benefits awards scheme may affect you and your claim.
Clark Evans
Attorney at Law
609 River Road
Judsonia, AR 72081
(501) 729-4044
http://www.vetslaw.com

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