In a previous post we discussed that to prove a VA disability claim you must have a medical opinion – a so-called “medical nexus” – connecting your current medical condition to an event or injury in the service. This means that a doctor must say that it is “as likely as not” that your current medical condition is caused by your service.
Note that this is a 50/50 opinion. The doctor does not have to say that your service definitely caused your current medical condition, but only that it is “as likely as not.”
If you have a current diagnosis and treatment for the medical condition you are claiming, the VA usually will send you out for a medical exam to evaluate your claim. Sometimes the exam is favorable to your claim, and your claim is granted; but sometimes the exam is negative and your claim is denied.
If the exam is negative, don’t give up. Sometimes, you can seek a medical opinion to challenge the VA opinion. The best source of such an opinion is your treating physician. Another option might be to hire an expert to review your file and offer an opinion.
Either way, your doctor or expert should review the VA medical opinion, state why it is wrong, and what the correct result should be. The more reasons given to support a conclusion, the more weight the opinion will have.
Just stating that your injuries are the result of your service is not usually enough. Instead, the opinion should be supported by facts,– like that you lead a healthy lifestyle, there is no known other cause for your condition, and citations to medical research. The facts of each case are different so the reasons will vary from case to case.
The supportive opinion may receive more weight that the VA opinion. Sometimes the VA opinion may be given by an examiner who is not an expert in the particular medical field. For example, if you have peripheral neuropathy and the VA examiner is a nurse practitioner, an opinion from a neurologist, supported by good reasons, should be given more weight than the nurse’s.
Another way to counter the VA opinion is to show that it lacks valid reasons to support its conclusion. Sometimes it is enough to point out that the VA opinion just states a conclusion without giving reasons. In that instance, you may not need a supportive medical opinion because the VA opinion is lacking, and the VA may send you out for another exam. This approach may be a good alternative if your treating physician won’t provide an opinion or an expert opinion is too expensive.
In the end, the VA must give the benefit of the doubt to you. So, if there are two opinions of equal validity, your opinion should be favored and you should be granted benefits. In VA law, if the evidence on each side is equal – in equipoise – then you win.
By Douglas I. Friedman of Friedman Law Firm, P.C.
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