Proven Tips #2: Evidence, Nexus Letters and VSO’s

February 01, 2011 | Benjamin Krause

Your VA Application for Disability Compensation: Part 2 of 4

To catch up from the last writing, you just finished researching the ins and outs of your hypothetical disability: sinusitis. After searching the Internet, checking your Service Medical Records and verifying that you meet the criteria 38 CFR Part 4: Schedule of Ratings, you’re ready to talk to a Veteran Service Officer (VSO).

Before the meeting, be sure to have all your ducks in a row. I generally bring all documentation relevant to the specific injury or injuries with me along with a summary sheet. Avoid dropping your whole file on the person’s lap with the expectation that they will sort through it for you. Try to keep the summary sheet as short as possible – One to five pages, depending on the number of issues. Your documentation will be in addition to this (doctors’ opinions – civilian, VA, military). Always try to keep things as short as possible. Include a table of contents of your injuries. Here is a copy of an actual claim letter for sinusitis, allergic rhinitis and sleep apnea. It’s mine, so be gentle.

On evidence. One thing your evidence should have is a Nexus letter (hopefully from a doctor or your in your SMRs) explaining how the evidence in your file is relevant to the condition you have now. This can be tricky for new conditions secondary to service-connected conditions. See Jim Strickland’s advice on the subject. Never bring your originals anywhere. Take copies of your files with you in a folder to your VSO meeting.

One misunderstanding of many is that lay evidence counts very little because it is not “objective.” (lay evidence is a statement from the veteran or buddy letter that supports a claim). Not true according to Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). That court held:

“In a veteran’s claim for benefits, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, [such as a broken leg, but not a form cancer], (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.”

This means the lay person cannot “render medical opinions, including etiology opionions,” but can provide testimony that is an eyewitness account of medical symptoms. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007). According to Jandreau, “Contrary to the Veterans’ Court, the relevance of lay evidence is not limited to the third situation, but extends to the first two as well.” To that point, the VA had been guilty of largely disregarding personal statements because they were not “objective.” They were wrong and the Federal Circuit had the last say, binding future VA decisions. On that note, I would question anyone claiming VA Compensation adjudicators are “objective,” too, given that the government takes an unjustified position in 70 percent of veterans denials. This means VA adjudicators are not following the law.

About the meeting. Be careful to never overwhelm your audience. The summary will keep your conversation focused. Also remember to be as friendly as possible. Many VSO’s make less that $35,000 per year and should be respected for their sacrifices to help us get the benefits we were promised.

VSO Selection. Not all VSO’s are created equal. Keep an open mind and shop around for the one you feel the most confident with handling your case. Some have less training or experience than others. Others have too many cases to directly manage effectively. The advantage for you will be the fact that you have your case already together. Talk to the VSO about how to further document your claim prior to filing it. If the VSO feels confident that you’re ready to go, go for it. One thing to consider, a bad VSO can squash your ability to appeal successfully by failing to notice shortfalls in your documentation before an appeal.

The application step does not require a VSO. You can fill out the VA claim online: VONAPP. The non-computer savvy veteran can download the Form 21-526 and fill it out manually or request that the VA mail one to you by calling 800-827-1000. This begins the process.

If doing this on your own, remember that there are many ways to skin a cat. You can be very general about the condition(s) or very specific. I have had success with both. Do not attempt to diagnose the condition yourself. For the sinus condition, you could merely state “sinus condition” or “problem breathing”. Or, you can be specific and state “sinusitis” if it is in your file. However, do not get cute and diagnose something that is not stated in your SMRs. List the symptoms, not the diagnosis (back pain with numbness down the legs, for example). Now, if you believe you have something like sciatica, then listing that after the symptoms may be fine. Again, this depends on your specific situation and comfort level.

Here is what the Department of Veterans Affairs provides about this process. It’s a little vague which explains why so many websites are espousing advice. An informed decision is always the best decision. Next we will talk about what the VA does after getting the claim.

Check out www.disabledveterans.org for more information. I’m no expert, but I’ve been where you’re going a time or two. Good luck.

About Benjamin Krause

Benjamin Krause is a Veterans Benefits Attorney and journalist who investigates problems veterans face with the Dept. of Veterans Affairs. He regularly reports on veterans' benefits news and analysis on the website DisabledVeterans.org.

Comments

  1. jesse Salcedo says:

    I have been 80% with 20% unemploability recently had congenatal heart failure. The Texas Vet recommende I get reavaluated for straight 100%. I have 70% PTSD and 10% for combat wounds. I have two Purple Hearts.

  2. The veteran can change service organization VSOs at antime provided that they do not have a pending issue claim or are in an appeal.

  3. I did not research my VSO but went on blind faith. It cost me almost eight months in submittal time as the VSO office gave the original claim back to me with my copies and therefore never submitted anything. When I inquired as to status, I was told they still needed the "Power of Attorney". Same response a month later. After signing three such documents they had to admit that they had not done anything and my submittal date would be Jan 24 instead of Jun 2 of the prior year.
    I have since withdrawn from that relationship and am handling everything myself. One MI, one third of heart gone, LVEF 30-35%, on my second AICD. What's to argue about?

  4. R. Gatewood says:

    Got any ideal on how to get copies of documents that were pulled from your records or taken from you to prevent you from exposing the truth. Oh, please don't let me to forget to tell you that these documents concerning certian events were either stamped "classified" or you were ordered to say, "Officially It Never Happened".

    Sad part about these situtations, is that they did happen. and there's many people like me that will carry the physcial & mental scars from surviving such cover-ups.

    If anyone out there remembers a USAF female aircraft mechanic who was given classified to a combat zone back in the 70s. I sure would love to here from you.

  5. R. Gatewood says:

    About VSOs; sometimes they don't get the Veterans records early enough to properly present your case before the judge. Naturally, this delays your case for months or longer.
    Another items is tht sometimes the VSO will disagree with the Judge when he/she tells you that you need to file another claim against the VA for their failure to properly dignois or treat you. I told my VSO that I was listening to the Judge. That didn't go over very well with my VSO & in fact, I haven't heard from him since the hearing & that was 5 months ago.

  6. WITH THE NEW LAW IN TACKED IN JULY, THEY STILL ARE WAITING FOR US TO DIE OR GIVE UP. I WENT TO A HEARING IN FEB. AND THEY TOLD ME MY THE PEOPLE WORKING ON MY CASE F UP AND AND HE WAS THE HEAD DRO AND ALL HE WANTED WAS A OUT SIDE DOCTORS REPORT AND HE WAS GOING GIVE ME 70 % + THE 30% ON MY DIEBETAS FROM AGENT ORANGE. HE SAID IT WOULD ONLY TAKE TWO WEEKS TO PROCESS. ITS BEEN 90 DAYS. BUT I'M NOT GIVING UP. I'M GOING TO BE IN THERE FACE EVERY WEEK. TILL THEY GIVE IT TO ME.

  7. Bob Delich says:

    I was off shore at Vietnam in 1964 for 63 days, never landed but unloaded helos from the shore. As a result I have been diagnosed with Agent Orange and have type 2 diabetes, can anyone answer the question about being able to over come the VA in this instance, since they denied my claim?

  8. Served in Shaiba and Fujaira Between 04 and 2010. I now have some serious lung issues and chronic rhinitus. I was smoking while in these ports, they were very dirty , particularly Shuaiba around mount 51. The Hardpoints were very close to the offload chutes for the bulk carriers. These ships mostly handled urea, aggregate and Coke pellets (steel), a lot of lead was offloaded as well. The bulk offload chutes were about 75 feet from mount 51 and about 100 feet from the ECP checkpoint. The dust would sometimes be 4 inches thick in a couple hours of watch. One thing I noticed was the "healthy lungs" of the Non smokers would hack up greenies almost continually. In hindsight I feel this was a good reaction of the healthy lung in expelling the material from the body. The smokers did not expel much material at all, I believe the aggregate (concrete dust) and other pollutants were mixing with the tar soaked lining of the lungs, as this happened i began to loose lung function. Now i get pretty easily winded. It is attributable both to my own smoking and the exposure. I have put in a claim, guess we will just have to see what the VA thinks about the possible connection between the lung issues and exposures even as a a smoker. I do not think the healthy lungs (non Smokers) were impacted nearly as badly as the smokers. The big question here is does the smoker held to bear full responsibility for his lung issues because he was a smoker? I am sure there are a lot of people who worked the missions in fujairah and Shuaiba who are in the same boat. I would venture a guess that many of them are smokers. If I had been ordered not to smoke on watch i would have obeyed that lawful order. I think the smoking in the vicinity of the pollutants allowed them to gain deep entry in to the lungs. So if you were in these two ports i just wanted you to know that you are not alone as far as lung issues.

  9. I am a a disabled veteran of the the first gulf war who got out of the service in 1993. I have been suffering from sleep apnea every since I got out( was never diagnosed while in service) I recently at the insistance of my wife went to civilian doctor where it was determined I have obstructive sleep apnea and they prescribed a cpap machine for me. I submitted a claim in april 20012 and they just sent the paper work back to me telling me to submit my evidence. My problem is everything I see on line for people in my situation the va has turned down. Do they want Gulf war vets to just die quietly. I have other issues like ptsd but I do not want that in my file while I am still workingl I am only 42 years old.

    • Mike.W,

      What, they want you to prove it, how dare them!

    • I am a nurse at a VA hospital, my fiancée is a Air Force Veteran also stationed in Saudi Arabia during the Gulf War. I know it is so frustrating to fill and meet all their requirement but anyone that has service deserves to be compensated for what the service and military did to them. My Fiancée is 60% SC at this time and he now has a claim in for multiple other issues including Gulf War Syndrome and sleep apnea, along with a few others. If you file a claim you can still work. You have to get 100% and unemployable to not be able to work, you can be 100% and employable and work. I would suggested if you continue with this get all your records military and outside make multiple copies and send them everything and more along with a written statement for each claim. I know it is a pain but in the end it is worth it, you deserve it. Good luck.

  10. I retired 25 years ago. I am in process of submitting claim for service connection to VA. Only doctor I am currently seeing is my medicare PCM who won't get involved in NEXUS letters. Anyone know where I can find doctor who will examine records and provide a NEXUS letter? I am located in San Antonio TX. Would truly appreciate assistance.

  11. Gregory Smalls says:

    I was diagnosed with interior cruciate, ligament deficiency right knee degenerative joint disease in march 1991 I received a 20% compensation for my condition. I've been having a lot of pain, swelling, and discomfort for awhile now. I've submitted paper work to be reevaluated with current statement from my doctor and I was turn down. Reason surgical scar is neither painful nor unstable so it looks like VA is basting their decision on my surgical scar and not the condition of my knee.. I need help with this I'm open for suggestions.