Monday, January 7, 2008

Jim Strickland of VA Watchdog explains Nexus letters

Veterans' Advocate Jim Strickland provides regular columns for VA Watchdog dot Org.

If you would like to contact Jim about his columns, you can email him here...

The archive of Jim's articles is here...

For more information about medical nexus and the nexus letter, use the VA Watchdog search here...


by Jim Strickland

Your claim for a Veterans Benefits Administration (VBA) disability compensation award must be based on irrefutable evidence. If your claim leaves any doubt in the mind of the ratings specialist who makes that award decision, you'll be denied.

If you can't prove it, it didn't happen.

This is often the case when you allege that an injury or illness that occurred in service has worsened over the years. While the condition may have been relatively minor then, it's significantly disabling today.

An example might be a back injury. It's there in your service medical record (SMR) that you received treatment and you were assigned to light duty for a week or two. Later you might have had some complaints but nothing serious and you went on living your life. Today your back is knotted with crippling pain and you're facing a big surgery and a long recuperation. You file your claim and you're quickly denied. The VBA doesn't agree that your condition today is related to the event in your past. They explain to you that they think your earlier injury wasn't chronic, that it was temporary and that you must have done something else to injure yourself since then.

Another example could be an injury to a leg. You were shot by a sniper, your thigh was shattered and you spent months in a hospital healing. You were young, you wanted to get up out of that bed and you did heal. Within a year you were working again albeit with a limp. You raised your family, worked hard at being a great American and had a good life until last year. Your gait had become steadily more awkward as you grew older and you had been thinking that leg was weaker than ever and finally it happened. You took a bad fall and injured your knees, your lower back and you fractured a forearm.

It's clear to you that the old injury was the cause of your fall and you filed for additional compensation. Those recent injuries have kept you out of work and now you need financial help. The VARO takes 14 months to adjudicate your claim and denies you any additional compensation. They don't agree that your old wound was the cause of your new problems. Maybe you slipped. Maybe you were drinking. The VBA doesn't have to say what has caused your recent predicament, all they need do is tell you that they've concluded it wasn't connected to your military service.

It's possible you were exposed to Agent Orange, carbon tetrachloride or any one of the hundreds of lethal chemicals, biohazards or radioactive substances that we took for granted back in the day.

Now you have a cancer, your lungs have scarred with emphysema, cataracts have blinded you or you have Type 2 Diabetes and you've become dependent on insulin many times each day. You well remember the barrels of chemicals you loaded on those ships, you were bathed in the stuff. You know that the exposure to all of that is at the root of your health problems today, you are confident that you'll qualify for help from your VBA and you seek out a Veterans Service Officer to help you file a claim.

A year later you receive the letter from your Veterans Affairs Regional Office (VARO) denying your claim. They explain to you that your military service doesn't qualify you for benefits because you don't fit the established criteria that would fit you on to a presumptive list for an award. The VBA doesn't deny that you were exposed to the hazards that could have caused your illness. All they are required to do is determine whether your exposure meets the strict criteria of timing or geography and that ends the game. Your problems aren't their problems.

Now what?

Let's back up a minute and review the regulation that sits at the heart of all this;

Title 38: Pensions, Bonuses, and Veterans' Relief
Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation
Ratings and Evaluations; Service Connection
§ 3.303 Principles relating to service connection.
(a) General. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.

In plain language that regulation means that the VBA must consider all the evidence you've submitted. That includes all of your military service and the conditions under which you served, where you served, your current condition, and all medical and lay evidence. For the discussion today, we'll assume that your claim was well documented as to the nature of your service, when and where you served and your health then and now.

The disagreement between you and your VBA may be seen as a simple one. You claim cause and effect, your VBA denies that. A solution to the disagreement often lies in a nexus letter. A simple definition of nexus is: Tie; bond; link; connection or interconnection.

To show that there exists a connection between your documented service event (exposure to CBR elements, wounding, illness) and your condition today (cancer, worsening of original injury, etc.) requires that you present the favorable opinion of an expert who agrees with your thought process. This is known as a nexus letter.

To be effective, your nexus letter must fulfill a number of obligations.

The author must be an expert. This is most often a medical doctor who is board certified in the area of health that's at issue. If a cancer is the condition, an oncologist is preferred. If an old injury to a bone is in question, an orthopedic surgeon is the obvious choice. PTSD has become more controversial in recent years and it's accepted today that a clinical psychiatrist or psychologist is the gold standard for opinions related to the condition. It helps if your doctor will provide a curriculum vitae (CV) stating the areas of their expertise and education.

The expert who signs your nexus letter must have thoroughly reviewed all available and pertinent medical records and state that fact in the letter. If your expert can't reasonably verify that all records were reviewed, the letter won't be of much value.

Although it may not always be an absolute requirement, it will lend a lot of weight if the writer of your nexus letter has recently examined you.

When writing a nexus letter, a few points to remember are in order. The letter should be as brief as possible while stating facts. The doctor who writes your letter does not have to use absolutes or conclusions in his or her statements. Opinions are made based on conjecture of observing facts and possibilities arising from those facts.

This means that the author isn't required to say that one thing definitely caused another, only that it might have or is likely to have led from point A to point B.

The preferred language to describe an expert's opinion should express whether "it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that (the condition) was incurred or aggravated during active service.

A complete rationale for all opinions should be expressed. For example, your doctor might point out that you have no family history of diabetes or cancer and that you have no known risk factors that might have otherwise precipitated your condition. This leads to the conclusion that your known exposure to a carcinogenic chemical during your military service is more likely than not the cause of your current condition.

The same might apply to that earlier back problem. Your physician could state that as it is recognized in medical literature and in his own personal experience that a leg injury that causes an alteration of a person's gait often progresses on to issues with one's back. Your doctor should point out that between the time of the original injury and today, there is no other know injury that could account for your condition today. Thus, it is reasonable to assume that it is more likely than not that your original injury is the cause of the condition at issue today.

In each of the above examples, the clinical nexus is established. There was a causation in military service and an effect today.

In determining whether service connection is warranted for an alleged disability, VA is responsible for considering evidence both for and against the claim. If the evidence, as
a whole, supports the claim or is about evenly balanced, the veteran prevails. If the preponderance of the evidence is against the claim, then it is denied.

However, the adjudication of the claim by the VBA includes the responsibility of determining the weight to be given to the evidence of record, and this responsibility includes the authority to favor one medical opinion over another. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.

If private clinical reports are not accompanied by the same kind of specific clinical and laboratory findings as is the case with the VA clinical evidence of record, nor are they supported by any convincing medical findings or rationale, weight of the VBA evidence may exceed that of the nexus letter and the claims for service connection may be denied.

Let's now take a look at the basics of a good nexus letter;


Reference: YOUR NAME

To Whom It May Concern;

I am Dr. Quack. I am board certified to practice in my specialty. A CV is included.

Mr. John Doe is a patient under my care since DATE. His diagnosis is YOUR CONDITION, etc.

I have personally reviewed his medical history (NAME DOCUMENTS) and I've also reviewed his history of the (EVENT OR EVENTS YOU CLAIM ARE THE CAUSE OF YOUR CONDITION) while he served during his military service.

I am familiar with his history and have examined Mr. Doe often while he has been under my care. (SPECIFY LAB WORK, X-RAYS, ETC.)

Mr. John Doe has no other known risk factors that may have precipitated his current condition.

In my personal experience and in the medical literature it is known, ETC.

It is my opinion that it is more likely than not that Mr. John Doe's condition ETC.


Dr. Quack, M.D.

The nexus letter should be as detailed and complete as your circumstances dictate.

Many physicians, both civilian and VA docs, are reluctant to write such a letter. Sometimes, they are concerned that there are legal pitfalls that can arise from writing disability letters and they want to avoid such. While there probably are some legal issues to consider, I'm not aware of any physician ever suffering any repercussions from writing a truthful, factual nexus letter.

In my experience, the physician is most often simply too busy to write such letters or isn't sure of the proper statements to make.

I recommend that you write the letter for your doctor. If you elect to do this you must carefully construct every word to ensure that there is nothing in the letter that the doctor could disagree with. Keeping it simple is most likely to lead to your doctor signing the letter.

Your best bet to have your doctor agree with you and write the letter onto his letterhead is to approach him or her directly. Don't hand it off to a receptionist or nurse to do for you.

If your personal doctor won't write such a letter, you'll have to seek out a physician who specializes in Independent Medical Examinations or IME's. These doctors are relatively scarce and they are often paid by the Social Security Administration, insurance companies and businesses to evaluate the extent of injuries of claimants. The IME doctor is a good choice for you to turn to and I highly recommend that you do so if you believe that an independent review of your case would help you. The doctor who is a specialist in Independent Medical Examination is usually thought to be above reproach as their living depends on their reputation as an impartial reporter of facts. They will often know the language that's needed very well and they spend a lot of time examining you and reviewing your records.

The IME doctor may be expensive and you must pay your bill up front and out of your own pocket. These IME opinions may cost from $600.00 to $1500.00 or more. There is no guarantee that the IME doctor will agree with your thinking and if the report you receive is not in agreement with you, you don't get your money back.

In practical terms, the nexus letter is a powerful tool for the Veteran to use to establish a claim. Often enough the VA will recognize that the physician who writes your nexus letter is better trained, better experienced or spent more time examining you than a VA Compensation and Pension (C&P) examiner did. In many cases at the VARO level as well as the Veterans Board of Appeals and in higher courts, the expert opinion expressed in a nexus letter has been the deciding factor that wins a Veteran those well deserved benefits.

The nexus letter may require a lot of effort on your part and an investment of money that you can hardly afford.

It may also be the single best investment of time and money you'll make. Don't give up on your claim until you've tried it.


posted by Larry Scott
Founder and Editor
VA Watchdog dot Org

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