The first requirement for a grant of service-connected disability compensation is competent evidence that the veteran currently has a particular disability.
A veteran is not eligible for compensation simply because he or she contracted a disease or suffered an injury while on active duty. (See Brammer v. Derwinski)
Many veterans experience illnesses or injuries that leave no lasting symptoms.
These medical conditions are considered acute and transitory, and they provide no basis for compensation benefits.
To be entitled to compensation, a veteran must prove that he or she has a current disability or current disabling residuals from a disease or injury.
If a veteran cannot first show this, any compensation claim by that veteran will fail. (See Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996) (“In order for a claimant to be awarded service connection there must be evidence of current disability.”); Brammer, 3 Vet. App. at 225 (“In the absence of proof of a present disability there can be no valid claim.”); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992) (denying service connection for hypertension in part for lack of any evidence that veteran currently has hypertension)
In a recent case, (McClain (Ray A.) v. Nicholson) a veteran had filed a claim for service connection for a disability that was diagnosed and in existence at the time he filed his claim for disability compensation; however, while the claim was pending, his condition improved and his claim was denied on the grounds that he did not have medical evidence of a “current” disability.
The U.S. Court of Appeals for Veterans Claims reversed the denial and awarded service connection, stating, “[W]ith regard to the requirement that a claimant have a current disability before service connection may be awarded for the disability . . . this requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary’s adjudication of the claim.”
The authors of this Manual believe that a medical diagnosis – identifying what the current disability is – will almost always be required for a grant of benefits.
One major exception is compensation for undiagnosed illnesses experienced by veterans of the Persian Gulf War, discussed in Section 3.7.
The question has also arisen as to whether a veteran who is suffering pain, but whose pain has not been attributed to any particular diagnosis, is nonetheless suffering from a compensable disability.
The U.S. Court of Appeals for Veterans Claims held in Sanchez-Benitez v. West, (JOSE A. SANCHEZ-BENITEZ, APPELLANT, v. TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, APPELLEE.
13 Vet App 28213 Vet. App. 282; 1999 US App Vet Claims LEXIS 13961999 U.S. App. Vet. Claims LEXIS 1396 NO. 97-1948 December 29, 1999, Decided UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS) that “pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.”
On appeal, a majority of the three-judge panel at the U.S. Court of Appeals for the Federal Circuit called the issue “an interesting, indeed perplexing question,” but declined to decide it because the issue was not properly presented for appellate review. (Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001), vacating in part sub nom. Sanchez-Benitez v. Principi, 13 Vet. App. 282 (1999). )
The Court did note that a “pain alone” claim “must fail when there is no sufficient factual showing that the pain derives from an in-service disease or injury.”
The Board of Veterans’ Appeals has taken the position in one case that “the veteran’s subjective complaints alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.” (BVA Docket No. 02-21 100 (Nov. 25, 2003). This decision may be accessed through the Board of Veterans’ Appeals web site, found at http://www.index.va.gov/search/va/bva.html. See also BVA Docket No. 99-17363 (Aug. 4, 2003) (“Without an underlying diagnosis or pathology the complained of symptoms . . . cannot in and of themselves constitute disabilities for which service connection may be granted.”). A decision of the Board is not binding on the Board or the VA regional offices in other cases. )
To avoid this potential pitfall, veterans and their advocates should make every effort to obtain a medical diagnosis that encompasses the disabling symptoms.
As a diagnosis of a current disability almost always involves medical issues, competent medical evidence is almost always needed to satisfy this first requirement for a grant of compensation. (See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (“[W]here the determinative issue involves medical causation or a medical diagnosis, competent medical evidence . . . is required.”). In the new regulations enacted to implement the VCAA, the VA defined the meaning of the phrase “competent medical evidence” as the following:
Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2008). )
Evidence that a veteran has a “knee condition,” a “back injury,” or a “mental disorder” is not enough.
More precision is needed.
This means that the diagnosis of current disability must be made by a medical professional or some other person with specialized knowledge, education, experience, or training that qualifies the person to give a diagnosis. (See Espiritu v. Derwinski)
The type of person who is competent to provide a diagnosis will depend on the particular disability being claimed.
The U.S. Court of Appeals for Veterans Claims has accepted diagnoses from a variety of professionals including doctors, nurses, psychiatrists, psychologists, chiropractors, social workers, and professional counselors among others. (See e.g., Cox v. Nicholson, 20 Vet. App. 563, 568-69 (2007) (nurse practitioner); Goss v. Brown, 9 Vet. App. 109, 114-15 (1996) (nurse); Smith (Wilfred) v. Brown, 7 Vet. App. 255, 258 (1994) (chiropractor); Williams (Willie) v. Brown, 4 Vet. App. 270, 273 (1993) (psychologist and registered nurse therapist). )