If you are a Blue Water veteran who is hoping to be awarded service connection for a condition caused by Agent Orange exposure due to the expected changes to VA law, you need to be aware of some of the particularities of VA law which may have an effect on your claim. The very first step in proving a claim for VA benefits may seem like an obvious one, but it is very important, and like many aspects of VA law, can often be complicated due to the nature of VA regulations. Today we are going to discuss the first element of service connection – existence of a current disability – and what evidence is needed to best support your claim.
The first distinction that is important to make is the VA compensation benefits are only available to veterans who have current disabilities, and a veteran is not eligible for benefits simply because he or she contracted a disease or was injured in service. Along those same lines, proving exposure to Agent Orange in the Vietnam War or to environmental hazards in the Persian Gulf War alone is not sufficient to receive benefits. The veteran must be able to prove that he or she has a current disability, or current disabling residuals, in order to be eligible for VA benefits.
One issue many veterans struggle with is that the VA will not typically pay benefits to veterans who have pain that is not attributable to any particular diagnosis (with the exception of veterans who are suffering from “Gulf War Syndrome”). For that reason, it is important to try and get a diagnosis from a doctor which encompasses all symptoms you are experiencing, including pain. But note, if a veteran is able to show competent evidence of persistent or recurrent pain, that may trigger that VA’s duty to assist by scheduling a C&P examination to determine whether a current disability exists. Therefore, even if you are unable to find a doctor who can offer a diagnosis, it is still important to provide the VA with evidence that you have been suffering from persistent and recurrent pain through medical records (VA or private) or even statements from friends or family members who have witnessed your pain.
It is important to remember that the VA requires “competent” evidence of the existence of a current disability. VA regulations define competent medical evidence as: “evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.” What this means is that the diagnosis of a current disability must almost always be made by a medical professional or some other person with specialized knowledge, education, experience, or training that would qualify them to give such diagnosis.
On their own, statements from friends or family members will almost never be considered medical evidence of a current disability, but as noted above, they may trigger the VA’s duty to assist by scheduling the veteran for a C&P examination. However, there are some situations in which a lay person (meaning a non-medical professional in this situation) is competent to diagnose a condition, for instance, varicose veins or a broken leg. In order for lay evidence of a medical diagnosis to be given any weight by the VA, the lay person must be competent to identify the medical condition (such as the appearance of varicose veins or a broken leg), the lay person must be reporting a contemporaneous medical diagnosis, and the lay statement must support a later diagnosis by a medical professional.
As you can see, although there are other ways to prove existence of a current disability, the best evidence is always going to be a medical diagnosis, but other evidence such as private or VA medical records of recent treatment or examinations, letters or written statements from physicians, or service medical records may be helpful in establishing existence of a current disability as well, and will certainly be necessary for establishing the other elements of service connection and later, arguing for the highest rating possible based on your symptoms.
Author Heather Staskiel, Hill & Ponton Attorney