Claims that are "secondary" to an original service connected disability and/or aggravation of a pre-existing non-service connected disease or disability by a service connected disease or disability may be compensable by VA.
CFR 3.310 says; "A disability which is proximately due to, or the result of a service-connected disease or injury, shall be service connected, and shall be considered part of the original service-connected condition."
A secondary disability may become service connected due to a cause and effect relationship. There may also be a pre-existing non service connected disability that is aggravated by an existing service connected disability.
Establishing a claim for a secondary condition that is clearly the result of an existing service connected condition should be relatively straightforward. The water becomes murkier as we dive into pre-existing non service connected conditions and the degree of disability caused by aggravation of the pre-existing condition by an established service connected disability.
Does the pre-existing (existing prior to the service connected condition) condition become service connected of itself or should it be combined with the existing service connected condition or rated separately? Did this condition exist prior to the Veteran being brought to active duty? Was it documented in the entrance physical examination and was there a notation regarding the degree of the disability caused by the condition?
For example, when you entered the military did you suffer from a knee injury received while you were playing high school football? During your entrance exam was the examiner aware of the injury and did he give that condition appropriate attention to determine the degree of existing disability? Were there notes made to your record about the knee injury and the potential for it to cause you problems while on active duty?
Later, when you injured your other leg in combat and sustained a service connected and compensable disability, was there any thought as to how that injury may require you to put an additional burden of weight on the pre-existing injured knee thus causing it further damage? How do you now compare the degree of damage that was extant prior to your current injury and deduct that from what you have today?
The decision of if and when to provide compensation for a secondary disability isn't always clear cut and changes in the way the rules are applied will often occur without any particular fanfare. For example, in the past VA might decline to rate as service connected alcohol or drug abuse secondary to PTSD or other psychological or mental conditions. In Allen v. Principi the Federal Circuit found that a Veteran is permitted to receive compensation for an alcohol abuse or a drug abuse disability acquired as secondary to a Veteran's service connected disability, such as PTSD. Increased substance abuse may indicate that a service connected condition has become worse and can result in a higher rating for that service connected condition.
Another compensable scenario arises in the case of PTSD secondary to sexual trauma that happened during military service, or if there was sexual trauma pre-existing prior to military service and the psychological impact has been aggravated by active duty. Also, psychological conditions often cause or exacerbate hypertension (high blood pressure) and hypertension is a known risk factor in heart disease. A veteran who suffers PTSD or similar disabilities may file a claim for secondary high blood pressure and heart disease based on his service connected disability. When a veteran who has a service connected psychological condition dies of a heart condition his widow may file a claim that alleges that his death was caused by his heart disease and that must be rated as service connected due to the original service connected disability. The same secondary connection may be made for alcoholic cirrhosis of the liver, jaundice, esophageal varices, stomach cancer and other sequela of alcohol abuse if that abuse is caused by or made worse by a service connected disability.
The Veteran and his or her advocate must not ignore all the possible sources of secondary disabilities. If your old leg injury has caused a painful limp and you've developed a backache, that might be a ratable and compensable secondary disability. If you take a lot of medicine for the pain of the backache that resulted from your old leg injury and that medicine makes you dizzy or nauseous or causes your hands to shake, you must consider an application to have the side effects of the required medicines rated as disabling. If you have significant and chronic pain from your leg and back injury and the extent of the pain has affected your blood pressure, causing or contributing to or aggravating your hypertensive heart disease, the pain syndrome and the hypertension and the heart disease should all be viewed as disabilities that deserve a compensable rating. When your chronic pain causes you a psychological condition such as sleeplessness, anger, the inability to cope or if you're unable to work because of pain, that must then be considered for a compensable rating of disability.
When a Veteran files for an award based on a secondary cause and effect relationship the Veteran must be ready to prove his allegation beyond any doubt with expert witness testimony. The burden of proof is more challenging when claiming a secondary disability or an aggravation of an existing non service connected disability. A well prepared initial application is more likely to produce positive results than simply a making a statement that the Veteran believes that this connection exists. You should submit statements from examining physicians who have reviewed your records that support your case. The doctors must make clear statements that in their medical opinion, based on physical examination and a review of records that he or she believes there exists a clear nexus between the original service connected illness or injury and the secondary illness or injury. You should encourage your Veterans Administration treatment team (doctors, nurses, physical therapists, social workers, etc.) to include such nexus statements in their medical records notes. Without nexus statements from expert health care professionals, your chances of an award without a lengthy appeals process may be significantly diminished.
In September 2006 VA published a final rule in the Federal Register.
A court decision was made to more precisely define circumstances where a
veteran may be compensated for an increase in the severity of an
otherwise non service connected (pre-existing) condition which is
aggravated by a service connected disability. Here again there are no
clear or immediate answers to a given situation and there will be much
subjective opinion brought to the adjudication by the individual ratings
specialist. In the Veterans Benefits Manual M21-1, Part VI, “Rating
Board Procedures" 7.05 states, "A preexisting injury or disease may be
considered to have been aggravated by active military service where
there is an increase in disability during such service, unless there is a
specific finding that the increase in disability is due to the natural
progress of the condition (38 CFR 3.306)."
In the text of the
commentary of the Federal Register VA says, "We are, therefore, amending
the proposed rule to allow the acceptance, for baseline purposes, of
medical evidence created at any time between the onset of aggravation
and the receipt of medical evidence establishing the current level of
severity. The earlier medical evidence will establish the baseline level
of severity for comparison with the current severity level of severity
to determine the degree of aggravation that may be service-connected and
Seeking a benefit for a secondary condition that
will be rated as service connected because of the obviousness of cause
and effect or receiving compensation for the aggravation of a
pre-existing condition by a service connected condition can be a complex
path to follow. The complexity increases as the conditions under review
become more disparate. Advance planning and thorough documentation by
the Veteran and the advocate will ensure an appropriate benefit award
where justified. Most importantly, you must provide expert opinion as to
a medical nexus between the service connected condition and the claimed
result or effects of that condition. This is usually best satisfied by
nexus statements from your primary care team at your VHA facility or
from an examiner during a Compensation and Pension (C&P) exam.
Beyond the nexus statement, as with all other claims, your medical
record that shows a history of treatments and the provider appointments
you have complied with will provide the VBA ratings specialist all he
needs to award your benefits. If you're seeking compensation for
aggravation of a non service connected disability by a service connected
disability, you should think about how to prove the degree of
disability prior to aggravation as compared to today and how much of
that is a result of the service connected injury or condition and how
much may be natural progression of the condition. Prepping, planning and
thinking it through at the start will be your key to success.