Many times, a Veteran’s service-connected condition leads to a new disability or illness. A classic example of this is when a Veteran’s service-connected left knee condition leads to later problems with the Veterans left hip or right knee. When a new condition was caused by or aggravated by a service-connected condition, that new condition can be service-connected by way of secondary service connection.
38 C.F.R. § 3.310(a) states that a “disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.” This includes conditions in which there is an intermediary step in the process. For example, it is easy to understand that a Veteran who has service-connected hypertension my, later on, develop heart trouble or headaches, due to the increased blood pressure. However; it is just as valid to service-connect sleep apnea, which is secondary to obesity, which is secondary to a service-connected spinal injury, even though obesity as itself is not a service-connectable condition. For this and any claim for secondary service-connection, the Veteran must have a thorough and well-detailed nexus letter from an expert which details how the service-connected condition brought about or aggravated the new condition claimed. At a minimum, this letter must clearly state that:
it is at least as likely as not that the Veteran’s service-connected spinal injury directly caused the Veteran’s obesity,
the Veteran’s obesity is a substantial factor in causing the Veteran’s sleep apnea, and
the Veteran’s sleep apnea would not have occurred had it not been for the Veteran’s obesity.
This nexus letter must also state the expert’s well-explained reasoning as to why the service-connected is the cause of the other new claimed conditions. For our example above, the expert would need to explain why the spinal injury caused obesity as opposed to obesity simply stemming from a poor diet or other causes. It would be beneficial for the expert to list attempts by the Veteran to modify diet and other lifestyle choices to lower the Veteran’s weight to no avail. Because there is an intermediary step involved (obesity), the expert would additionally have to explain how obesity brought about the Veteran’s sleep apnea.
Another common example of secondary service connection is medication. When a Veteran takes medication for a service-connected condition, and that particular medication causes an additional condition, this additional condition is also service connectable. For example, if a Veteran takes medication for service-connected tuberculosis and this medication caused the Veteran to suffer from tinnitus, the Veteran may become service connected for tinnitus despite the fact that he or she never experienced in-service acoustic trauma. Because of this, it is important for all Veterans taking any medication for service-connected conditions to record the potential side effects of these drugs and monitor themselves for these side-effects.
As outlined in a prior article regarding willful misconduct, the VA generally does not grant claims involving alcohol or drug use and abuse. However; this obstacle can be overcome by showing that the use and abuse of alcohol and drugs are secondary to a service-connected condition. For example, if a Veteran is service-connected for PTSD due to military sexual trauma (MST) and self-medicating for this trauma brings about alcohol overuse, and eventually, the Veteran develops a liver condition. As long as the liver condition is due to the alcohol use, which is in turn due to the Veteran’s PTSD, the liver condition may be service connected.
Tod is a service-connected Veteran of the United States Army and a partner at the law firm of Grimes Teich Anderson, LLP, in charge of the firm’s Veterans Law section. His firm has offices in North and South Carolina, and his Veterans practice is national. For this and other articles related to Veterans Law, please visit: https://www.injurylaw-carolinas.com/category/veterans-law/.