In any filing for disability compensation, the VA is required to tell the veteran or claimant how to prove a claim by (1) what information is necessary and (2) assist in obtaining that information (duty to assist)1. Part of the “duty to assist” is to provide a medical examination or medical opinion, if necessary, to make a decision on a claim for service connection.
- Four elements are needed to trigger the VA’s duty for the examination or opinion.
Element One:
- Competent evidence of a current disability or persistent or recurrent symptoms of a disability.
Example: Over the last year, the veteran’s right knee has had increasingly severe pain when standing up. As a result of the pain, the veteran walks with a limp and is unable to walk more than a few yards before stopping to rest.
Element Two:
- Evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies.
Example: While in service, the veteran twisted his right knee during physical training exercises with his unit. He went to sick call at the time of the incident, and was seen by a medical provider the same day. Service medical records show the incident, medical visit and treatment at that time.
Element Three:
- An indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but;
Example: Though it has been three years since he left the service, the veteran has continued to experience pain in his right knee, and has been unable to participate in favorite activities such as half marathons or competitive 5K runs. The pain has gotten progressively worse.
Element Four:
- Insufficient competent medical evidence on file for the VA to make a decision on the claim.
Example: A private medical provider has examined the knee and provided treatment options to the Veteran. There is some concern about loss of function. The Veteran has not pursued further testing or intervention due to the cost.
- In this case, sufficient evidence is provided for three elements to trigger the VA’s duty to assist the veteran by obtaining a medical examination or opinion.
- In an appeals case, a veteran was seeking a service connection between cancer and exposure during service to herbicides and/or pesticides. In this case, the medical opinions addressing the question of medical nexus were determined to not be sufficiently definitive, and the case was sent back to the VA for a VA medical examination as part of the due process.
Examples of medical opinions that did not show a sufficient degree of certainty:
- (1) “it is as likely as not” that the veteran’s prostate cancer is associated with his herbicide/pesticide exposure;
- (2) it “is not inconceivable” that the veteran’s greatest risk factor for developing prostate cancer “may have been” his extensive exposure to various defoliating chemicals and herbicides;
- (3) “the veteran was apparently exposed” to herbicides in [location] and that although “it cannot be said for certain” that herbicide exposure causes cancer, it seems that the veteran meets the established criteria for the nexus between his exposure and his cancer;
- (4) “it appears” that the veteran received significant chemical exposure to herbicides and pesticides during military service, and… that the veteran’s cancer has been contributed to if not caused by his exposure to hazardous chemicals.
- Sometimes the VA determines that additional information is needed to adjudicate the claim, and that the information must be provided by the veteran or claimant. In that instance, the veteran or claimant must submit information or evidence within one year from the date of notice from the VA that such information is necessary.
Citations
- 1. Public Law 106-475, Veterans Claims Assistance Act of 2000
- 2. 38USC5103A(d) — Medical Examinations for Compensation Claims
- 3. 38USC5103 — Notice to Claimants of Required Information and Evidence
- 4. Citation Nr: 0640092, Decided 12/29/2006, Docket No. 00-20 667, On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jacqueline E. Monroe, Veterans Law Judge, Board of Veterans’ Appeals
- 5. Abrams, R.B., George, L.J., Stichman, Barton F. (Eds.). (2013).
Veterans Benefits Manual
- . Charlottesville, VA: LexisNexis
