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VA Disability Secondary Service-Connected Claim Denied — Case Example

When veterans here in New Orleans apply and seek disability ratings from the Veterans Administration (VA), typically, the application is based on an ailment or medical condition with a direct connection to an in-service event or happening. An example might be a loss of limb directly related to/caused by an in-service ordinance explosion.

However, veterans are entitled to seek a disability rating for medical conditions that are secondary to the direct cause. The VA calls these “secondary service-connected claims.” These can be difficult ratings to win, but not impossible. In a recent decision, the US Court of Appeals for Veterans Claims affirmed the denial of a disability claim which was based on a secondary service-connected ailment. Although the service member was unsuccessful, the case is a good example of how the process works and shows some clear examples of the types of evidence that the VA examines in making its rating decisions. See Hopkins v. Wilke, Case No.18-1449 (US Court of Appeal for Veterans Claims) (not precedent). See docket here; Opinion here.

In Hopkins, the service-member obtained, in 1968, a disability rating for bronchial asthma and allergic rhinitis. Asthma is a breathing/respiratory condition marked by spasms in the bronchi of the lungs making breathing difficult during a bronchial attack. Usually, the onset of the asthma is caused by an allergic reaction. “Allergic rhinitis” is defined as allergies and sinus sensitivities affecting the nose. In 1995, Hopkins was diagnosed with a kidney disability.

In 2011, Hopkins applied to the VA for an increased disability rating for his asthma. Hopkins also sought a disability rating for the kidney disorder which Mr. Hopkins claimed was related to his asthma on a secondary service-connected basis. At the first stage, the VA examiner denied a rating for the kidney condition based on the following facts:

  • Hopkins’ service records and in-service medical records showed no kidney problems;
  • In 2011, the VA physician conducted an examination and gave an opinion that the kidney condition was not caused by the allergies but rather by hypertension; and
  • Neither the kidney condition nor the hypertension manifested during Hopkins’ service.

As a general rule, to be entitled to receive VA disability benefits, a veteran must demonstrate and provide sufficient evidence that the veteran has a current disability, that there was an occurrence or aggravation of a disease or injury while the veteran was in service, and that there is a “nexus between the in-service injury or disease and the current disability.” See 38 C.F.R. § 3.303 (2018). Continuity of symptoms is an alternative method of establishing the second and third elements required to establish service connection. “Continuity of symptoms” is what it sounds like: if there was some condition or symptom noted in the service members medical records, and then if the medical records show a continuation of those symptoms, those records and notations may be sufficient to establish the in-service connection.

In Hopkins’ case, a disability rating was denied for the kidney condition because he could not identify any kidney failure or disorder in his records and could not identify a symptom that continued forward.

However, undeterred, Hopkins appealed the denial of a rating related to the kidney disorder. And, in 2015, Hopkins was successful and obtained a reversal of the VA’s original decision. The Board — the first level of appeal — reversed on a procedural ground holding that the initial decision had not been based on sufficient evidence and on the grounds that the examiner did not conduct a full examination of the service record. The Board sent the case back to the VA for further proceedings.

On remand, another medical examination was undertaken in 2017, but again the decision was “no.” In particular, it was determined that (i) the kidney disorder was not related to the asthmatic condition as a secondary manifestation and (ii) did not relate to any other in-service event directly. These new facts were identified as supporting the denial:

  • The physician conducting the 2017 medical examination expressed the opinion that medical science does not link allergic vasomotor rhinitis or asthma to chronic kidney disease;
  • The physician analyzed Hopkins’ kidney biopsy report and she gave the opinion that the kidney disorder was fibrillary glomerulopathy which, according to medical science, is not caused by or causally related to asthma; and
  • The physician specifically gave the opinion that “it is less likely than not that Mr. Hopkins’ chronic kidney disease is related to his bronchial asthma or allergic vasomotor rhinitis.”

Based on the foregoing, as noted, the VA again deemed that Hopkins was not eligible for a VA disability rating because his kidney disorder was not in-service related.

However, Hopkins was again undeterred. He again appealed to the Board. This time he focused on the “continuity of symptoms” path to victory. He highlighted the fact that in October 1967, he was given a medical examination and given a urinalysis test. The urinalysis test returned a “specific gravity” result for the liquid of 1.027. In January 1968, another examination and urinalysis revealed a specific gravity of 1.086. Hopkins then provided some news and internet articles expressing the opinion that a specific gravity result above 1.030 was “abnormal” and that a result above 1.010 was evidence of demonstrating kidney disease or renal insufficiency.

While this was a dedicated and determined effort by Hopkins, the effort ultimately fell short. The Board rejected his appeal and the rejection was affirmed by the Court of Appeals. While the specific gravity results might have been sufficient for a finding of continuity of symptoms, the presentation of that evidence was faulty. Hopkins did not obtain medical opinions with respect to the connection between specific gravity and kidney disorders. Internet and news articles are not the types of evidence that will be persuasive to the VA, to the Board of Appeal, or to the Court of Appeals. Further, Hopkins’ service records stated on their face that the doctors found no indication of kidney problems. That is, the doctors actually conducting the tests in the late 1960s did not feel that the specific gravity results were indicative of kidney problems. Now, of course, medical science changes and advances. But again, if Hopkins was going to convince the VA and the Court of Appeals that there was some new medical science, he would have needed medical opinions showing that medical science has, since the late 1960s, come to a new understanding with respect to specific gravity as a symptom of kidney disorders.

As can be seen, obtaining VA disability benefits based on a secondary service-connection can be very difficult and complex. The Hopkins case also demonstrates the importance of persistence even if the final result is adverse. Proven and talented New Orleans VA disability attorneys can help if you are seeking disability based on a secondary manifestation.

New Orleans VA Disability Benefits Law Firm — Call Ascend Disability Lawyers, LLC Today

For more information on secondary service-connected ailment, contact the experienced New Orleans VA disability benefits attorneys here at Ascend Disability Lawyers, LLC. We have years of experience helping Louisiana veterans get their disability ratings. Contact us via email or by calling (855) 631-2544. Call today.

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