You may obtain service connection for any disability resulting from a disease or injury that occurred while serving in the military. Generally, you must prove the following three elements to obtain service connection for a disability: (1) a diagnosed condition, (2) an in-service event or disease, and (3) еvidеnсе of a nexus linking the diagnosed condition and the in-service event. However, if you did not obtain documentation of the event in service, or if you are having difficulties obtaining evidence of a nexus to service, there may be another way for VA to grant service connection – continuity of symptomatology.
“Elements” of a Continuity of Symptomatology Claim
You are entitled to service connection based on continuity of symptomatology if symptoms of a chronic condition have continuously presented themselves since the time you left the military. To prove you are entitled to service connection based on continuity of ѕуmрtоmаtоlоgу, уоu must demonstrate:
- Your disability is a “chronic condition” listed in 38 CFR 3.309(a)
- Sуmрtоmѕ of the сurrеnt diѕаbilitу were “noted” while you were in the military
- Thеѕе same symptoms соntinuеd аftеr you separated from service
- A link еxiѕtѕ bеtwееn the роѕt-ѕеrviсе ѕуmрtоmѕ and your current condition
There are a few important things to note about these requirements. First, you need only experience “symptoms” of your condition from the time you were in service – not an actual diagnosis. This means that if you experience knee pain while serving on active duty, continue to experience knee pain from the day you get out, and are diagnosed with degenerative arthritis in your knees twenty years later, you are entitled to the benefit.
Additionally, the symptoms you experienced in service must be the same type of symptoms you experience now. Your symptoms can certainly be worse now, but they must be the same “type” of symptoms. For example, if you experienced clicking and popping in your knees during service, but now experience pulling in your tendons, you are not likely to qualify based upon this theory. However, if you experienced popping and grinding in your knees, and the popping and grinding has gotten worse over the years, you likely qualify.
The Key to A Successful Continuity of Symptomatology Claim is Producing Competent Lay Evidence
Winning a claim based upon continuity of symptomatology can be very difficult. Typically the only way to truly prove that symptoms of your condition have persisted since service is to testify under oath that the symptoms have felt the same since service. You can do this in-person at a hearing, or by submitting a sworn statement or declaration.
Basing a claim solely upon lay evidence can be risky. VA adjudicators typically look for inconsistencies in the record to attempt to discredit your testimony. Some of the common ways VA discredits lay testimony include:
- Claiming your symptoms were not continuous because you did not mention them on your exit examination
- Claiming your symptoms were not continuous because you never mentioned them at other medical appointments
- Claiming your symptoms were not continuous because you did not continuously seek formal medical treatment
- Claiming you did not experience an event in service because there is no record of your event happening
If any of these problems relate to your case, you need to clearly explain the reasons for the discrepancy BEFORE your claim gets denied and you get stuck in an appeal status. It is not uncommon for Veterans to not claim a condition on an exit examination because of fear of being held on active duty, or because of a lack of knowledge of their condition. It is not uncommon for Veterans to not explain an unrelated condition when seeking condition for something else. It is not uncommon for Veterans to use “self-care” treatments for chronic conditions, such as arthritis. It is not uncommon for Veterans to be treated by medics that do not keep records of treatment.
If you must rely upon lay evidence to build your claim, it is important to maintain your credibility and to corroborate your testimony as much as you can. If you can find other witnesses to attest to your condition, ask them to prepare a statement. If you can get in touch with a person who was there when your event-in-service occurred, ask them to prepare a statement for you.
Just remember the golden rule of lay evidence – you can only testify about things you actually witnessed. You cannot testify that you suffered “pre-patellar bursitis” while in the military, but you can say that you experienced “knee pain” in service. You can (and should) further testify as to how this pain felt at the time, using as many accurate adjectives for the pain as possible. You should explain how the condition progressed since leaving the service. You should explain the current state of your condition. You should then provide these statements to any C&P Examiner that VA may require you to see.
Benefits of Relying Upon Continuity of Symptomatology, as Opposed to “Regular” Service Connection
The biggest benefit to relying upon continuity of symptomatology, as opposed to “traditional” service connection, is the ability to prove your claim without obtaining a medical nexus opinion from a doctor, independent medical examiner, or C&P Examination. This can save a Veteran hundreds of dollars and several decades in the appeals system.
However, demonstrating соntinuitу of ѕуmрtоmаtоlоgу is not always as clear cut as described here. VA is never excited about granting a claim without a C&P Examination, and will likely order one, even if you have adequately proven your claim. Because of this, it is important to use continuity of symptomatology as one your theories, but not your sole theory. You should attempt to obtain service connection for your condition using any and every available theory.
Another benefit of using this theory is that it can be grounds for appeal if VA incorrectly applies the law. Correctly applying the theory of continuity of symptomatology can require VA to use several concepts of Veterans Law that can be confusing to VA raters, including the law regarding lay testimony, the benefit of the doubt rule, and credibility determinations.
If You Are Eligible For Service Connection Based On
Continuity of Symptomatology
And Have Been Denied, Schedule A Free Consultation With Our Veterans Law Attorney
It can be difficult to obtain service connection based on this theory. If VA denies your claim, it is important to continue your fight and appeal. You may need to submit additional lay testimony, medical treatise evidence, news articles, or additional legal argument to present your case on appeal. Veteran Esquire Legal Solutions, PLLC, offers free consultations to Veterans appealing service connection claims at all levels of the appeals process. Contact us to schedule a free consultation by clicking this link, or calling 1-800-679-0791.
Have any experience with continuity of symptomology? Tell us about it in the comments below!
You must log in to post a comment.