Nexus letters are one of the most (if not THE most) important parts of a claim for VA benefits. If you don’t get it right, it could cost you years of appeals or eliminate your chance for veterans’ benefits altogether. But getting a good nexus letter that supports your claim isn’t easy.
Veterans must find the right doctor, a professional who knows how to address everything the VA requires. And preferably without paying a dime. So, let’s run through what it takes to get a solid nexus letter to help prove your time in service caused your disability.
What is a Nexus Letter?
The term “Nexus” in the VA appeals context simply means “causation.” In applying for VA benefits, veterans need to produce a medical opinion stating that their disability is the result of their time in service. This medical opinion is written up in a nexus letter.
Since the VA has a “duty to assist,” it must assist veterans in getting a medical opinion to support their claim. After you submit your claim, the VA may ask you to have a compensation and pension exam (C&P exam). In the C&P exam, a medical doctor or VA nurse practitioner does a basic physical exam and goes over your medical records to verify your claimed disability and its association with service. In some cases, they don’t even do a full exam, but merely ask you questions and type answers into a computer.
If the basic exam doesn’t give the doctor enough information, he or she may order further lab tests, x-rays, etc. Once the C&P exam is complete, the doctor writes up a C&P examination report and sends it over to the VA claims adjudicator to process. Veterans don’t typically get to see this C&P exam report before it goes into their claim file. But veterans should always go back to the VA after the C&P exam and demand a copy of the C&P exam report. This way, a veteran can respond to any unfavorable exam reports before VA makes a decision. In our VA disability benefits law firm, we routinely ask our clients to obtain a copy of the C&P exam report in person and send it to us. This way, we can review it and respond if it is not favorable. Most of the time, we obtain a rebuttal nexus letter to refute the negative medical opinion of the VA C&P examiner.
Think VA doctors writing nexus letters sounds a tad biased? You’re right.
Can VA Doctors Write Nexus Letters?
Your C&P exam report is a sort of nexus letter. It provides information on causation. But remember, the VA is hiring its own doctor to provide evidence for your claim. VA doesn’t want to grant veterans’ claims for benefits. C&P exam doctors work for the VA and know their objectives. Basically, C&P exam doctors serve as gatekeepers in the VA claims process.
In short, veterans should not rely on VA doctors to write nexus letters that support their VA benefits claim. Most VA doctors are going to do whatever they can to show that no evidence exists to support service connection or an increased rating.
Instead, veterans must take proactive initiative towards winning a claim. This means going out and finding a private doctor to write an objective, unbiased nexus letter. And it needs to be more than just a letter. What we’re really talking about here is finding an expert medical witness who can write an
extensive opinion explaining why your disability is related to service.
How to Find A Doctor to Write A Nexus Letter
The doctors that do this kind of work don’t exactly advertise it. They can be really hard to find. One of the best ways to get a medical nexus opinion letter is to get a veterans’ disability attorney. These attorneys have connections to and relationships with medical practitioners who regularly work as professional expert witnesses.
The problem with this is, a veteran who is disabled is probably not working or is not earning what he or she could – which means they don’t want to be spending any money trying to get a nexus letter.
But veterans can find a medical expert to write a professional and persuasive nexus letter without having to pay up front, as long as they hire the right veterans’ disability law firm. Certain veterans’ law firms will advance the cost of your medical expert (plus legal fees) out of their own pocket, usually on the condition that these costs will be paid back once you win your claim.
By obtaining a lawyer and veterans’ law firm on contingency, the veteran can leverage the resources of the law firm to obtain the right expert and potentially win the claim. And law firms who offer contingency fee services for veterans know how to win claims. Their income depends on it.
It’s important to note that not every veterans’ disability law firm is the same when it comes to medical experts. A vast majority of attorneys practicing in this area aren’t willing to spend the money it takes to get a solid nexus letter for their client. Many veterans’ lawyers don’t even hire medical experts for their clients – or they expect veterans who want a medical expert to pay for it upfront. If a veteran is too disabled to be gainfully employed (and is seeking TDIU), how is he supposed to come up with the money to hire an expert on his own?
In particular, law firms that shy away from paying for experts for their clients tend to be firms that are primarily Social Security Disability firms. Back in 2007-2008, they changed the law to allow lawyers to represent veterans at the Regional Office level—after an Notice of Disagreement was filed. Previous to this, lawyers could usually only get involved to represent a veteran for a fee after a final Board of Veterans Appeals denial. This meant that those of us who practiced exclusively in this arena were a small group of elite appellate lawyers who did extensive work before the U.S. Court of Appeals for Veterans Claims. The practice involved heavy brief writing and appellate work, which is not something the average Social Security Disabilty lawyer liked to do. This change in the law allowed a bunch of lawyers into the veterans’ disability field who come from a different mindset. They don’t spend money on cases. They just make arguments and try to win what they can. The idea of spending thousands of dollars of their own money on a client’s case is not what these lawyers do. As such, they are not winning the really difficult cases. Frankly, some of these high volume disability firms are winning the cases that likely would be won without the assistance of a lawyer. At our VA disability law firm, we concentrate on handling difficult cases that have been on appeal for years. We offer aggressive, hard-hitting representation that involves hiring top-notch medical experts.
In my opinion, obtaining detailed, professional nexus letters written by highly qualified medical experts is the only way to practice. It maximizes the outcome of the VA claims process and is one of the most important aspects of filing a successful claim for VA benefits.
Access to medical experts is what separates elite law firms from the norm. Elite veterans’ disability law firms are going to spend whatever it takes to win a case. Your run-of-the-mill, high-volume disability law firm won’t care if they win or lose – as long as they sign up a client—because they have such a volume of cases that they can afford to do very little work on each file and win only a percentage of the cases on their docket. They’re not going to pay for medical experts, so they’re not out any money anyway.
What Should a Nexus Letter Include?
Understandably, when a veteran uses a private doctor to write a nexus letter, the VA is going to pick apart anything supporting that veteran’s claim. Therefore, private doctors writing nexus letters for veterans must be very careful to indicate that they:
- Affirm a current disability (active pathology during the pendency of the claim)
- Reviewed the veteran’s VA claims file
- Reviewed the relevant evidence for service-connection (medical and personnel documents from before and after service)
- Are qualified to evaluate the disability (licensed in the appropriate medical field)
- Reach a conclusion to a degree of “at least as likely as not”
- Provide a detailed rationale for their conclusion, i.e. support their conclusion with reasons that relate to the facts
- Address any negative factors that weigh against the claim
If these factors aren’t clear, VA will use that as a reason to deny the claim. Medical doctors who regularly work as professional medical experts in legal proceedings know how to address each and every issue the VA requires from a nexus letter in support of a veteran’s claim.
In addition, as noted, the VA requires that a veteran’s nexus letter state that service “as least as likely as not” caused the disability. In other words, there is a 50% chance the disability came from service. The doctor supports this statement by providing evidence linking or establishing a nexus between the event in service and the current disability. Of course, if the doctor writing the VA nexus letter can state his opinion to a higher degree of medical probability, such as within a reasonable degree of medical certainty, then this is even better.
Ways to Prove a Nexus with Service
Evidence of direct service-connection is the simplest and most direct way to prove a nexus with service. For example, military records showing you were diagnosed with type II diabetes during service.
Other ways of proving a nexus with service include:
- Delayed onset service connection: An incident in service caused a veteran to develop a disease many years later. A medical nexus opinion is almost always required for this type of claim.
- Chronicity: Chronic conditions shown in service to be “chronic” can be service connected if it is manifest at any later date, no matter how remote, unless there was a clear intervening cause (Brannon v. Derwinski, 1 Vet. App. 314 (1991)).
- Continuity of symptomatology: 38 C.F.R. § 3.303(b) notes that continuity is required only when there is no showing of chronicity in service. If a condition is acute and transitory during service, then a medical nexus opinion will be required.
- Statutory presumption: Certain chronic diseases that become manifest within one year after discharge are presumed to be service connected. Examples: arteriosclerosis, arthritis, brain hemorrhage, diabetes, leukemia, psychosis (38 C.F.R. § 3.309(a)). Other diseases are subject to presumptive service connection when manifest within three years. Examples: tuberculosis, leprosy (38 C.F.R. § 3.307(a)(3), 3.309(a)). There is a seven-year presumptive period for multiple sclerosis (Id.).
- Tropical diseases: If manifest within one year after separation. Examples: cholera, dysentery, malaria, filariasis, yellow fever, blackwater fever, plague (38 C.F.R. § 3.309(b)).
- POWs: Prisoners of war can obtain presumptive service connection for certain disease any time they become manifest. Diseases considered to be common among POWs include cirrhosis of the liver, beriberi, peptic ulcers, malnutrition, irritable bowel syndrome, psychosis, anxiety, hypertension, stroke (38 C.F.R. § 3.309(c)).
- Persian Gulf veterans: These diseases must be manifest prior to December 31, 2016. Diseases include the “undiagnosed” illnesses, multisymptomatic chronic illness such as chronic fatigue, fibromyalgia, etc. Objective signs include fatigue, headaches, muscle pain, skin problems, headaches (38 C.F.R. § 3.317).
- Radiation exposure: Certain diseases associated with exposure to ionizing radiation are presumptively service connected (38 C.F.R. 3.309(d)), including leukemia, and various cancers such as cancers of the thyroid, breast, pharynx, esophagus, stomach, small intestine, bone, brain, colon, lung, urinary tract.
- Herbicide exposure (Agent Orange exposure): If a veteran had in-country service in the Republic of Vietnam during the Vietnam War he is entitled to service connection for any of the diseases on the “list” of diseases shown to be associated with Agent Orange (38 C.F.R. 3.309(e)). Examples include Type II diabetes, Hodgkin’s disease, multiple myeloma, prostate cancer, some respiratory cancers, soft tissue sarcoma.
- The diseases must be manifest within the required time period, not necessarily diagnosed.
- Service connection by aggravation: If a veteran has a pre-existing condition (that is, prior to service) and it is shown that the condition worsened during service, then a presumption of aggravation applies. Once the presumption applies, the burden shifts to the VA to prove that any increase in disability during service is due to natural progression. The showing that an increase was due to natural progression must be established by “clear and unmistakable” evidence (Vanerson v. West, 12 Vet. App. 254 (1999)). The clear and unmistakable standard requires the evidence to be beyond debate (Id.).
- Presumption of soundness: A veteran is considered in sound condition and fit for duty except as to those conditions “noted” at his induction exam (38 U.S.C. § 1111). To rebut this presumption, VA must show by clear and unmistakable evidence that the condition pre-existed service and was not aggravated by service (Bagby v. Derwinski, 1 Vet. App. 225 (1991); Doran v. Brown, 6 Vet. App. 283 (1994), Miller v. West, 11 Vet. App. 345 (1998); Vanerson, supra).
- If a service-connected condition causes or aggravates a second condition, the second condition may be service-connected, and compensation may be paid to the degree that the disability was aggravated beyond the baseline, pre-existing level of impairment (Allen v. Brown, 7 Vet. App. 439 (1995)). For example, a service-connected spine disability causes chronic pain and eventually depression. The depression could be eligible for service connection on a secondary basis. A service-connected anxiety disorder aggravates a pre-existing ulcer condition.
- Disability caused by VA medical negligence (38 U.S.C. § 1151): A disability caused by VA medical care or vocational rehabilitation may be treated as if it is related to service. Section 1151, however, requires proof of negligence, and proof of an actual increase or additional disability as a result of the aforementioned VA treatment. Expert medical opinion usually required.
Just remember, nexus letters are important. You really can’t win a complicated case without them. And the best, cheapest way to find a doctor experienced in writing nexus letters is to hire a law firm willing to work on contingency and provide all the resources it takes to win your VA benefits claim.