Strengthening a Claim

1. Strengthening a Claim
From The Get-Go
National Association of County Veterans Service Officers
2019 CVA Training – Cleveland, OH
Presenter:
Katrina J. Eagle, Esq.

2. 1. Tell VA the kind of claim you are
submitting
2. Identify the evidence you are
submitting that satisfies each
criteria for that type of claim
3. Instruct VA to comply with DTA
to support the claim (if needed)

3. Most common types of claims:
•Direct service connection
(including DIC)
•Presumptive service connection
(including DIC)
•Secondary service connection
•Increased Rating (including TDIU
if evidence supports it)

4. Criteria for Direct Service Connection
 3 Basic Requirements for Eligibility

Medical Evidence of CURRENT Diagnosed Disability

Evidence of a DISEASE, INJURY OR EVENT
Coincident with Military Service

NEXUS between the Current Disability and the In-
Service Disease, Injury or Event

5. Medical Evidence of CURRENT Diagnosed
Disability

Submit proof of diagnosed condition

Specifically identify the source of records for
diagnosed condition

Give direct quote of diagnosed condition (1-2
sentences max)

6. Evidence of a DISEASE, INJURY OR EVENT
Coincident with Military Service
Submit military record(s), e.g., DD214, AF
Performance Evals, Medal Citations

VA places GREAT WEIGHT on contents of
Veteran’s military personnel and service medical
records
Submit Veteran’s personal statement
describing event, injury, exposure (include
details relevant to CFR or M-21 provision)
If Veteran does not have complete military
records, tell VA to get them per DTA
requirements

7. Nexus between Current Disability and In-
Service Disease, Injury or Event

Medical opinion re Nexus “as likely as not....”;
i.e., physician need not be absolutely certain

Note: the VA will reject medical opinions as
having little to no probative value if the opinion
is mere speculation, or does not reflect a
comprehensive review of the historical medical
records – but, C file review not required!

No “Treating Physician Rule” in the VA claims
process.

BUT, sometimes, no link required because…

8.  MANY Medical Conditions Eligible
for Presumptive S/C, such as:
1. Tropical Diseases (15+)
2. Chronic Conditions (30+)
3. Former POW’s (10+)
4. Radiogenic Diseases (21+)
5. Herbicide Exposure (25+)
6. Persian Gulf War (MUCMIs)
7. CLCW Exposure (8)

See 38 U.S.C. §1112; 38 C.F.R. §3.309(a)-(e)

9. Criteria for Presumptive Service Connection
 A legal presumption will excuse or waive one or
more criteria required for service connection.
 Many cases involve TWO legal presumptions.
Usually, either:

Evidence of a DISEASE, INJURY OR EVENT
Coincident with Military Service

NEXUS between the Current Disability and the In-
Service Disease, Injury or Event

10.  Presumption of In-Service Exposure:
 If Veteran exposed AND suffers a
medical condition presumed by
VA to be related to exposure,
then presumed service
connected unless VA can rebut.
 38 C.F.R. § 3.307
 38 C.F.R. § 3.309

11.  Presumption of In-Service Exposure
to an Environmental Toxin:
 Which of 3 basic criteria for
service connection does it relate
to?
 2nd
prong: relieves veteran of
presenting evidence of actual
incurrence or aggravation of
disease

12.  Presumption of Service Connection:
 Which of 3 basic criteria for
service connection does it relate
to?
 3rd
prong: relieves veteran of
presenting evidence of medical
nexus b/n in-service exposure
and specified diseases or
conditions

13.  Presumption of Exposure to
Herbicides:
 What about Veterans who do not
qualify for presumption of exposure?
 Present evidence of actual, direct
exposure
 38 C.F.R. § 3.307(a)(6)(i) defines
“herbicide agent” as: 2,4-D; 2,4,5-T
and its contaminant TCDD, cacodylic
acid; and picloram

14.  Presumption of Exposure to
Herbicides:
 Presumption of service
connection for diseases
associated with herbicide
exposure applies to BOTH:
1. Veterans presumed exposed
2. Veterans who show actual
exposure to herbicides

15. If all criteria for Presumptive service-connection
cannot be met, then pursue DIRECT S/C claim
 E.g., exposed to herbicides but not in Vietnam
 Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994):
 Held: Even if a condition is not on a
“presumptive” list, a claimant can still establish
entitlement to service connection for that
condition on a direct basis by providing medical
nexus evidence of a link between his/her current
condition and the claimed exposure/event.
 Note to VSOs: STOP telling Veterans not to file
when condition is not on a VA presumptive list!

16. VA’s Duty to Provide Medical Examination or Opinion
38 U.S.C.§5103A – Duty to Assist
(d)(1) In the case of a claim for disability
compensation, the assistance provided by
the Secretary under subsection (a) shall
include providing a medical examination
or obtaining a medical opinion when such
an examination or opinion is necessary to
make a decision on the claim.

17. VA’s Duty to Provide Medical Exam or Opinion
The requirement that the
evidence indicate that a
condition “may be associated”
with service establishes a “low
threshold.”
McLendon v. Nicholson,
20 Vet.App. 79, 83 (2006)

18. Medical Exam/Opinion Must Be Adequate
“[M]ost of the probative value of a
medical opinion comes from its
reasoning...”
A medical examination or opinion “is
[not] entitled to any weight ... if it
contains only data and conclusions.”
Nieves-Rodriguez v. Peake, 22 Vet.App.
295, 304 (2008).

19. Medical Exam/Opinion Must Be Adequate
“It is the factually accurate, fully
articulated, sound reasoning for
the conclusion ... that contributes
probative value to a medical
opinion.”
Nieves-Rodriguez at 304.

20. No Evidence Is NOT Negative Evidence
“[T]he medical examiner cannot
rely on the absence of medical
records corroborating that injury to
conclude that there is no
relationship between the appellant’s
current disability and his military
service.”
Dalton v. Nicholson, 21 Vet.App. 23, 39
(2007).

21. VA’s Duty to Assist in Obtaining Records
38 C.F.R.§3.159(c)(2): DTA re records in
custody of a Federal department or
agency
The duty to assist a veteran in obtaining service
records to corroborate the occurrence of a
stressor event requires VA to make as many
requests as necessary – each encompassing a
different 60-day period – unless/until it
becomes futile to do so. Gagne v. McDonald, 27
Vet.App. 397 (2015).

22. Benefit of the Doubt:
 “Congress has not mandated that a medical principle
needed to have reached the level of scientific consensus
to support a claim for VA benefits. Instead, Congress
has authorized VA to resolve a scientific or medical
question in the claimant’s favor so long as evidence for
and against that question is in “approximate balance.”
Imposing a higher standard of proof would be counter
to the benefit of the doubt rule.”

Wise v. Shinseki, 26 Vet. App. 517, 530 (2014)
 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102
 “approximate balance” or “evidence in equipoise” =
tie goes to the veteran

23.  Establishing Entitlement to Secondary
Service-Connection
 38 C.F.R.§3.310
When a veteran has a service-connected condition,
and later develops another medical condition that
is directly related to the service-connected
condition, then the second condition will also
qualify as a service-connected condition, eligible
for compensation.

No time constraints b/n original and secondary
condition manifestations.
Example: Diabetes Mellitus (Type II Diabetes)

24.  Unemployability – 38 C.F.R. § 4.16(a)
 Eligibility requirements (Schedular):
• One disability rated at least 60% OR
• Multiple disabilities, with one
disability rated at least 40%, and a
combined rating of at least 70%.
If the veteran meets the percentage requirements
above, VA must then determine whether he or
she is prevented from securing a “substantially
gainful occupation” because of the
service-connected disabilities.
TDIU

25.  When is VA required to consider
entitlement to IU?
 Rice v. Shinseki, 22 Vet. App. 447 (2009):
 “A request for IU is best understood as part
of an initial claim for VA disability
compensation . . . or as a particular type of
claim for increased compensation.”
 I.e., “inextricably intertwined” with claim if
veteran is unable to work due to s-c
conditions

26.  Roberson v. Principi (251 F.3d 1378)
(Fed. Cir. 2011):

Once a veteran submits evidence of a
medical disability and makes a claim for
the highest rating possible, and submits
evidence of unemployability, the ‘identify
the benefit sought’ requirement is met
and VA must consider IU.

“An award of IU does not require a
showing of 100% unemployability.”

27.  When is VA required to consider
entitlement to IU?
Record must include “cogent evidence”
of unemployability:
1. Statements submitted to VA
2. Responses to VA examiner
3. VA Form 21-8940

28.  What NOT to do when filing a claim:
Spaghetti-style approach
Vague, non-descript cover letters
Unhelpful medical-nexus opinions

29. 24 April 2019
VIA FAX: 248.524.4260
RO Director (345)
VA Regional Office – Phoenix
RE: JOE AWESOME VETERAN / C 123 45 6789
SUBMISSION OF VAF 21-526EZ FOR
PERIPHERAL NEUROPATHY
Dear RO Director:
I represent Mr. Joe A. Veteran. Enclosed please find his completed VA
Form 21-526EZ for his diabetic peripheral neuropathy, as secondary to his
service-connected DMII. In support of this claim, please note that Mr.
Veteran receives all health care for his diabetic neuropathy through the VA
Healthcare System in Phoenix, Arizona.
I can be reached directly at Katrina@eagleveteranslaw.com and
858.549.1561 should you need any additional information to proceed in
processing this claim.
Sincerely yours,
Katrina J. Eagle, VA Accreditation No. 9047
Attorney for Joe A. Veteran
Encl: Mr. Veteran’s VA 21-526EZ (9/17/2018) (5pp

30.  Summary of Steps for a GOAT Claim
 Understand the Path of a Veteran’s Claim /
Appeal; Anticipate next step and end goal
 Question everything; Keep asking “Why?”
Until The Answer Makes Sense and Cents (or
of some tangible benefit to veteran)
 Be the logical, rational, knowledgeable voice
(written and spoken) for your client
 Consult with colleagues; no need to recreate the
wheel!

31. Questions?
Feel free to contact us:
Katrina J. Eagle
T: 858-549-1561
katrina@eagleveteranslaw.com
Jim Radogna
T: 858-549-1561
jim@eagleveteranslaw.com