Direct & Temporal Theories for Granting Service Connection
A claim for service-connected VA benefits can be awarded on two separate theories. The first and most common theory (“direct service connection”) is based upon a causal relationship between an in-service incident and a present disability. Namely, this theory assumes that some physical or emotion trauma in service caused the veteran’s present disability. In medical terminology, this theory is referred to as the etiology of the disability.
The second theory (“temporal service connection”) is based upon a temporal relationship or coincidence between the veteran’s period of service and his current disability. This theory requires a showing that the veteran’s current disability first manifested symptoms during service. The actual cause or etiology of the disability is irrelevant.
The temporal theory of service connection is most applicable to genetic or hereditary disabilities. For example, certain psychiatric disabilities like schizophrenia or bipolar disorder are not caused by any external event or incident, but typically manifest spontaneously. For men, these disorders generally show up in their late teens or early twenties: that is, frequently during their time of service.
>Presumption of Soundness
Almost without fail, before a person is enlisted in the armed services, he or she undergoes an induction examination. An induction examination is nothing more than a routine and cursory examination of a soldier’s physical and mental health. Generally, if the recruit gives no history of a disability and if a disability is not obvious upon examination, the results of the examination will be negative. The negative examination results can later be used to the veteran’s advantage when applying for service-connected disability benefits. With a negative induction examination, the veteran is entitled to the presumption of soundness. That is, the VA must presume that the veteran’s alleged disability(ies) did not exist prior to service. Although the VA has the right to rebut this presumption, it may do so only with clear and unmistakable evidence. See 38 U.S.C. § 1111.
>Presumption of Aggravation
The presumption of aggravation is the flip side of the presumption of soundness. When the VA has established that a veteran’s disability did in fact exist prior to service, then the presumption of aggravation applies in favor of the veteran. This presumption, like the presumption of soundness, can only be rebutted by clear and unmistakable evidence. However, as a practical matter, a veteran should not simply rely upon the presumption, but should submit evidence of some in-service incident or continuing physical or psychological stressor, (e.g., boot camp, field training, hard labor, harassment). In addition, the veteran or his representative should look closely at the service medical records to see if there is some evidence of an increase in the pre-existing disability during service. 38 U.S.C. § 1110.
>VA Rating Reductions
Now and again, the VA regional offices attempt to reduce a veteran’s disability level. This is a fertile area to challenge the VA, as a rating disability level is entitled to a certain degree of protection against a reduction.
Ratings of 5-Years or More (A rating disability level that has remained at a particular disability level or higher for five (5) years or more may not be reduced unless all the evidence of record shows sustained improvement in the disability. The VA may not base a rating reduction upon an isolated piece of evidence; it must be based upon all the evidence of record. For instance, if one medical report indicates sustained improvement, but another does not, the VA may not reduce the rating. In addition, the VA must obtain a recent and complete VA examination before seeking a rating reduction). See 38 C.F.R. § 3.344(a).
Ratings of 20-Years or More (If the veteran’s rating has remained the same at a particular level or higher for twenty (20) years or more, the rating level may only be reduced upon a showing that the initial rating was based upon fraud). See 38 C.F.R. § 3.951(b).
100% Disability Ratings (A 100-hundred percent disability level, based either on a schedular or non-schedular rating, is entitled to special protection against a reduction. Essentially, the VA must show material improvement of the disability since the last rating in order to reduce the rating). See 38 C.F.R. § 3.343(a).
Unprotected Ratings (Even if a rating does not qualify for the protections of the ratings listed above, nonetheless, all rating reductions must be based upon an actual change – that is, improvement - in the veteran’s disability from the time of the initial rating to the time of the proposed reduction. This is an important point. Frequently, the VA will attempt to reduce a rating based upon evidence that the initial rating was assigned an inappropriately high rating. But evidence that the veteran received too high of a rating in the first place is not the same as evidence of improvement of his disability.)
The so-called personality disorder diagnosis is the darling of the VA. A personality disorder is not a recognized disability in the VA system. The military physicians know that, and thus they frequently diagnose mental problems arising during service as personality disorders. For example, when a soldier’s behavior becomes erratic or abnormal (often early signs of schizophrenia or bipolar disorder), military physicians typically give a perfunctory diagnosis of personality disorder in the separation examination. It is important that the claimant’s representative does not accept this diagnosis at face value. Rather, a private psychiatric evaluation is usually needed to determine whether the veteran’s alleged personality disorder was, in fact, the first symptoms of a true psychiatric disability during service.
VSO / VSR Bulletins
- Getting A Medical Opinion From Your Client's Treating Physician 31-Aug-2017
- Keeping the VA to the Scheduler Criteria 08-Aug-2017
- The Clemons Case: Defining The Scope Of A Claim 30-Jun-2017