NEXUS REVISITED: The Savage Case March 2000

NEXUS REVISITED:
The Savage Case
March 2000

This continues a discussion of well grounded VA disability claims with a focus on “nexus” or a medical link between your current disability and the inservice injury or disease. For background, sneak a peek at columns from previous months.

The general rule is you must get a doctor to state in writing that today’s medical problem is linked to your military service. That is the easiest and fastest road to service connection. But, there are other ways to establish nexus although VA is traditionally reluctant to award benefits based on these exceptions to the general rule. One way is to show you have a “chronic” problem and that you had it inservice. Chronicity has to do with medical records from the service showing you had a chronic disease along with current medical reports showing you have the same disease. Some chronic conditions are listed in Title 38 of the Code of Federal Regulations (CFR) at section 3.309. Examples are multiple sclerosis and tuberculosis. This process is muddied up a bit by another regulation which sets different time periods during which these diseases must show up after service. At any rate, the regs are there to be studied and they can offer an alternative route around the problem of not having a doctor’s opinion.

Another way to show nexus is something called “continuity of symptomatology”. Since I surely don’t want to type that phrase over and over we’ll call it COS from here on. To really bone up on COS you can look at what VA has to say about it in section 3.303 of the CFR and see what the Court of Appeals for Veterans Claims thinks in the case of Savage v. Gober, 10 Vet.App. 488 (1997). I’ll try to explain COS with an example.

While serving in Nam, Ray fell hurting his back and left ankle. Service medical records (SMRs) show treatment at the time. He served out his hitch and went on with his life but the back and ankle continued to bother him. He was able to work but it took chiropractic treatments and over the counter pain pills to keep Ray going. Finally, the back got to the point he went to the nearest VA hospital for help. He also went to his family doctor. Of course, these visits generated medical records. X-rays showed a ruptured disc and arthritis in that region. Surgery wasn’t something Ray was ready for so he filed for disability with both Social Security and VA. The Social Security folks have different rules so Ray qualified there and began drawing a check. VA turned him down saying no nexus. Ray had not given VA a written doc’s opinion that his present problems were related or linked to his inservice injuries. VA claim not well grounded and benefits denied.

It is truly important to understand Ray’s predicament because thousands of vets end up in the same pickle every year -- turned down because of no nexus. Ray nailed step one of the well grounded claim process - proving a current disability - with current medical records showing a current back problem. He passed step two of the test because his SMRs show inservice injury to his back and ankle. With medical records showing a service-related back injury and medical records showing a present back problem, you might think there is service connection. Think again. Ray had never asked any of the doctors who examined or treated him to write down whether there was a connection between his military injury and today’s medical problem. Since that doc’s opinion about nexus was not in the papers making up Ray’s VA claim file, he loses on step three of the well grounded analysis - nexus.

What can Ray do? Since back problems are not “chronic” in the regulations, there is no presumption of nexus or of service connection. The only thing left is COS. The Savage case says that nexus may be proven by showing a chain or continuity of symptoms starting with the original injury or disease and continuing more or less unbroken to the present. Piece of cake, right? Simply testify that the symptoms never went away and that the symptoms are related to the arthritis and ruptured disc, right? Wrong. Unless the relationship or “nexus” between your symptoms and your medical condition is one of those rare relationships which you, a lay or nonmedical person, can observe and testify to, you still need a doctor’s opinion that there’s a nexus between your disability and the symptoms of your disability. See what they’ve done? For straight service connection you need a written doc’s opinion that it is “probable” or “more likely than not” that your inservice injury and today’s problem are connected. For COS you need a written doc’s opinion that it is “probable” or “more likely than not” that your continuing symptoms and today’s problem are connected. Another way of saying it is - you hurt your back in the military - the pain, numbness and stiffness never went away, and - today you’ve got a bad back - you still must have in your file a written medical opinion that there is or probably is a connection. Without it, you lose.

With that note of cheer, I’ll close for this month. Tune in again for more in the continuing saga of “Caring For The Nation’s Veterans”.

Clark Evans
Copyright©2000

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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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