#1 VA Denies Because You Lack a Current Disability – Do You Need a Diagnosis?
First and foremost, veterans must have a current condition in order to establish service connection. Here, current means that you are experiencing the symptoms and effects of the condition at this very point in time. However, VA often overlooks the fact that you do not technically need to have a formal diagnosis. While it is certainly an easier path to service connection if you do have a diagnosis, the law states that you do not need one to be eligible for service-connected compensation. This is most commonly seen in cases where veterans experience chronic pain. This condition is not something that gets a formal diagnosis; however, it causes functional loss and impairment. As such, it should meet the standard of a current disability that is eligible for compensation. Ultimately, the condition does not need to be diagnosed, it just needs to be (1) related to service; and (2) something that impairs your daily functioning and earning capacity.
Breaking Down “Current” Disabilities for VA Compensation
A good example of a situation where a veteran would not have a current disability may involve a temporary illness. For example, you were previously diagnosed with cancer but have since gone into remission. Since the cancer is no longer active, VA would not consider it to be current for rating purposes.
Where We Commonly See VA Say There is a Lack of Current Disability
Mental Health Conditions
Psychiatric conditions tend to be much easier to prove when you have some type of formal diagnosis. It is difficult to establish a psychiatric condition when you do not have a diagnosis because it is hard to explain the symptomology that you are experiencing. There is some law that might potentially help you establish service connection for a psychiatric condition without a diagnosis; however, that it is very unlikely. As such, psychiatric conditions are great examples of disabilities that you really do want to have a diagnosis for.
#2 VA Denies Due to No Proof of In-Service Injury, Illness, or Event
Lacking proof of an in-service injury, illness, or event relates to the second element of service connection. Here, VA is looking to see if something happened in service that may have contributed to the onset or aggravation of a current condition. For instance, you were injured in a training accident, exposed to loud noises, or witnessed a traumatic event. Any of these incidents may lead to a subsequent disability and thereby qualify as an in-service event.
Exposure is Not a VA Disability (e.g., You Cannot Claim Agent Orange)
Sometimes Veterans get confused about whether exposure to Agent Orange is an in-service event or a claim in and of itself. Exposure to Agent Orange is an in-service event and should not be claimed as a disability. Instead, Agent Orange leads to many debilitating conditions for which veterans can claim service connection. Again, veterans might say that they have a certain cancer due to Agent Orange, but they should not simply file for “Agent Orange”.
What Can a Veteran Do if They Were Denied Due to Lack of Evidence of an In-Service Event, Injury, or Illness?
If veterans do not have service personnel records or service medical records related to their in-service event, injury, or illness, they may consider submitting other forms of competent and credible evidence, such as lay testimony. In this case, lay testimony can come from veterans themselves, or their family and friends. The lay testimony should outline the onset and progression of the veteran’s condition and how it affects them on a daily basis.
#3 VA Denies Due to Lack of a Medical Nexus Connecting Your Disability to Your Military Service
After the first two elements of service connection are met, you will likely need to provide a nexus opinion. A nexus opinion establishes a link between your current disability and your in-service incident. It is most common for those nexus opinions to come from VA during a . If the examiner gives a negative nexus opinion, meaning they find that it is “less likely than not” that your condition is due to service, VA will likely deny your claim for service connection. However, there are ways for veterans to argue against negative nexus opinions.
How to Fight Back Against a Negative Nexus Opinion
After attending a C&P exam, you should request a copy of the results from VA in order to review it. If you determine that the examination was negative, you may want to consider obtaining a private medical opinion. Furthermore, you can submit additional treatment records or lay statements to support your claim.
#4 VA Denies VA Disability Benefits Due to Lack of Evidence
VA often denies claims for disability benefits because there is not enough evidence in the veteran’s file to issue a favorable decision. Generally, VA has a duty to assist meaning VA is required to gather information that may help support the veteran’s claim (e.g., service personnel records, service medical records, VA medical records). Additionally, VA’s duty to assist applies to the adequacy of C&P exams. If you undergo an exam and feel it is inadequate, or that it does not accurately describe your disability, raise that to VA. If VA is not able to obtain records after making reasonable efforts, it has a duty to (1) notify the veteran that it was not able to obtain the records and (2) notify the veteran that they are ultimately responsible for providing VA with those records.
Increased Rating Claims and Evidence
Similar to service connection claims, VA denies increased rating claims due to a lack of evidence. VA will typically look through your medical records and schedule a C&P exam to determine whether your condition has worsened over time. Again, veterans should consider seeing a private doctor and submit those medical records. VA can obtain these private medical records on its own if you sign and send an authorization to release private medical records. Again, lay statements from family and/or friends who have seen your condition get worse can help support your increased rating claim as well.
#5 Veteran Missed Their C&P Exam Appointment
It is extremely important that veterans attend their C&P exams, because if you do not attend the exam, VA can outright deny your claim. If you have a good reason for not being able to attend, you must inform VA right away and seek to reschedule. Again, if you do not attend the C&P exam, VA will likely deny your claim without even considering any of the other evidence you may have submitted.
#6 VA Denies Because The Veteran Used the Wrong VA Form
VA denies claims if veterans submit the wrong forms associated with their claims. Unfortunately, there is a specific VA form for pretty much everything within the claims and appeals processes. As such, it can be very overwhelming for veterans and hard to keep track of. One of the most important forms that VA will request is Form 21-8940, Application for Increased Compensation Based on Individual Unemployment. This form is needed for veterans’ claims for total disability based on individual unemployability (TDIU). TDIU is a disability benefit that allows for veterans to be compensated at VA’s 100% disability rate, even if their combined schedular rating does not equal 100%. Importantly, TDIU is awarded in circumstances in which veterans are unable to secure or follow substantially gainful employment due to their service-connected conditions.
VA will request Form 21-8940 from veterans in order to process their TDIU claims. Therefore, if veterans do not submit this form, it is likely that their claims will be denied without much consideration.
#7 VA Denies Due to Missed VA Disability Form Deadlines
There are many deadlines that veterans must be aware of when filing claims and appeals. In the Legacy appeals system, veterans have one year to file a Notice of Disagreement with VA’s rating decision. If you receive a subsequent unfavorable decision (Statement of the Case), you will have 60 days to file a VA Form 9 (i.e., an appeal to the Board). However, under AMA, veterans have one year to choose in which appeal lane they would like to file their appeal: supplemental claim; higher-level review; or Notice of Disagreement (appeal to the Board of Veterans’ Appeals) within one year of the unfavorable decision. In both the Legacy appeals system and AMA, veterans have 120 days to appeal unfavorable Board decisions to the Court of Appeals for Veterans Claims.
Other important deadlines under AMA include:
- Submitting evidence in the hearing docket. Veterans can submit additional evidence to the Board during their hearing or up to 90 days following their hearing.
- Submitting evidence in the evidence docket. Veterans can submit additional evidence to the Board with their NOD or within 90 days following submission of their NOD.
If VA has denied your disability compensation claim or granted you a lower rating than your medical conditions warrant, do not give up the fight. We may be able to help you appeal this decision. Contact our office today for a free consultation at 401-753-6359.