Compensation for injury or other adverse medical condition is the single most common type of VA benefits claim. The VA compensation process is designed to “rate” an eligible veteran based on the “average impairment in earning capacity” resulting from events occurring during or as a result of military service. If a condition is determined to be “service-connected” and an entitlement awarded, VA provides the claimant monthly payments and access to other VA benefits based on the “effective date” of the award, which is usually the date the claim was submitted to VA. Do not be concerned if you do not know what all these terms mean right now, one of the important purposes of this Knowledge Book is to explain VA terms in plain language. The terms in this paragraph, and many others, are explained in the sections that follow.
Every condition for which compensation is sought must be connected to the veteran’s service. Establishing “service connection” generally requires medical evidence or, in certain circumstances, lay evidence of:
(1) a current disability;
(2) in-service incurrence or aggravation of a disease or injury; and
(3) a nexus between the claimed in-service disease or injury and the present disability.
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.
Evidence of a current condition is fundamental to an award of service connection. Cotant v. Principi, 17 Vet. App. 116, 132-33 (2003); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (reasoning that, absent “proof of a present disability[,] there can be no valid claim”). Without evidence establishing a current disability, disability compensation may not be granted. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (stating that service connection requires, among other things, a current disability at the time of filing or during the pendency of the claim). Absent evidence in the record that a claimant currently suffers a claimed condition a determination that service connection is not warranted is not clearly erroneous. Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990).
Service connection may also be established by showing continuity of symptomatology, which requires a claimant to demonstrate:
(1) that a condition was “noted” during service;
(2) evidence of post-service continuity of the same symptomatology; and
(3) medical evidence or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.
38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)); Davidson, 581 F.3d at 1316; see also Jandreau, 492 F.3d at 1377 (whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board). “[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage, 10 Vet. App. at 496. Testimony of continuity of symptomatology can potentially indicate that a disability may be associated with service, but only “if ultimately deemed credible.” McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006).
Pain alone without a diagnosed condition, however, is not a disability or compensable condition. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (“pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.”). Accordingly, a decision to deny a claim for failure to establish a current condition based on pain alone will be upheld.
A condition does not have to be symptomatic at the time of the decision for service connection to be granted. The requirement for a current disability “is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim . . . even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Furthermore, although congenital defects themselves cannot be service connected by law, service connection may be warranted for superimposed disabilities that result from military service. VA Gen. Coun. Prec. 92-90 (July 18, 1990).
A finding of service connection is a factual determination by the Board that the Court reviews under the “clearly erroneous” standard. 38 U.S.C. § 7261(a)(4); Rose v. West, 11 Vet. App. 169, 171 (1998). “A factual finding ‘is “clearly erroneous” when . . . the reviewing court . . . is left with the definite and firm conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). The Court may not substitute its judgment for the factual determinations of the Board on issues of material fact merely because the Court would have decided those issues differently in the first instance. Id.
“Medical” and “lay” evidence are discussed later.
For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org
For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency