A member, defined as anyone who contacts me on my email, asked me how the VA works with respect to their nexus letters. I could not honestly answer him with a truthful assessment. If you read my most recent CAVC post about Mr. Ronald Leeper, it might cause you some concern.

I left a paragraph hanging when I said I found it mighty odd that VA embarks on collecting nexus assessments on risk factors, yet they all seem to come back in VA’s favor. By that I mean the Vet loses virtually every time. If you asked someone on the street for an opinion based on facts that can be weighed by them, you might expect there to be a wide assortment of responses ranging from intensely for, tending towards a neutral stance and lastly, a cadre of definitely negative assessments. This would be in keeping with most polls taken.

Why is it, then, that any “independent” foray by VA in search of a medical opinion as to the possibility of service connection always seems to come back solidly in their favor? Experience dictates that there would be a 50-50 chance assuming the evidence is evenly balanced. After all, that’s why they perform this nexus assessment. You have arrived with an opinion (medical nexus) that supports your contentions. So, doesn’t it bother you when VA marches out and magically encounters Doctor Joe Blow on the street and he concurs with VA’s examiner 100% of the time? This seems like an incredible coincidence when it happens again and again.

Having viewed tens of thousands of BVA and RO decisions, reading the Leeper decision felt like a deja vu redux. I certainly didn’t expect VA to say that their doctor felt it was at least as likely as not, but I always have faith that the Veteran will triumph some of the time.  A monolithic denial process smacks of collusion. One other scenario came to mind after I wrote that. What if VA is in the habit of shopping for nexus diagnoses from doctors and utilizing one which will support the denial? If this were true they are violating protocol. The law states that they cannot shop for negative evidence, but we know that their adherence to law is spotty at best and driven by financial reality. Read no further than those seminal requests for remand from VASEC at the Court. You know the ones to which I refer. They all say the same thing- “VASEC agrees with the Court that he stepped on his necktie and a remand for a new trial would be in order” or VASEC admits that due process was not accorded the Vet and feels remand, rather than reversal, would be appropriate.”

As their assets are bottomless, there is no reason why they cannot assemble multiple theories and discard those which do not comport with their “wishes”. Thus, a doctor who  submitted a nexus in favor of a Vet would not know whether his letter was used as evidence. He isn’t called to testify or defend his theory. He is contracted to provide a service and that is the end of it. The Veteran, on the other hand is required to defend his nexus and often to have his doctor submit an addendum to address VA contentions. In many cases his nexus is declared “not probative” and discarded entirely.

I go to great pains to avoid sounding like a conspiracy theorist and am usually confident that the VA dog and pony show is above board. Recently, with the advent of the new “speculation” non-nexus technique, VA has created a whole new form of denial. A denial based on an inability to come to a conclusion is not a denial. It is simply a decision being held in abeyance awaiting more information. VA doesn’t see it this way. The Leeper decision was proof that you can always get someone to commit to a yes or no eventually. The military would be in one hell of a pickle if they sat around and endlessly dithered about whether to attack or not. Putting off the decision for lack of input simply means some one needs to investigate further to ascertain the truth with some degree of certainty. Throwing your hands up and declaring you are hopelessly deadlocked like a hung jury cannot serve as a decision. VA thinks its perfectly acceptable.

This is the current state of knowledge concerning nexus letters at the VA. What is not in dispute is that if you arrive without one, VA is not obligated to provide one. If your evidence strongly supports your contentions, VA will most assuredly obtain a nexus to deny you. If you arrive with one, even money says they won’t fight you, but that is not guaranteed. VA’s decision on fight or flight is nuanced. If your case can be won at a higher level, they will acquiesce. If they feel it’s “iffy” as they did in Mr. Leeper’s claim, they may feel emboldened to take a chance on a protracted battle.

I have always advocated for a nexus that covers every contingency to avoid the above. One thing I have learned from this is to expect the unexpected. Vets can build the perfect claim to support a jetgun defense only to have the VA sky out and say it was STDs and the nexus didn’t encompass that. Same for tattoos.

Winning is sometimes a matter of expecting that VA is going to resort to what wasn’t covered or ignoring evidence which will vindicate you. In most cases, you expect that an agency of the Government will be a stand up organization-especially one with Veteran’s interests at heart. When viewed as being akin to an insurance company, it all makes sense. It isn’t their money , but they go to inordinate lengths to hoard it. Knowing this helps when you file for benefits

P.S. Look at the Nexus Bible above in Pages for an extended compendium of what you need to prove it.

About asknod

VA claims blogger
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5 Responses to VA NEXUS LETTERS

  1. Dottie says:

    Just an are back at VARO and have been completed since 2/19/12 and 4/10/12. Still no notification on their decision.:) The lawyer sent them a letter two weeks ago to remind them of how far back they go so we are now in the waiting game.

    • asknod says:

      vA is probably trying desperately to find a hole in the fabric with which to deny on. They hate to just throw in the towel. We wish you a speedy and successful outcome. Keep us posted, hear?

  2. Randy Nesbitt says:

    Hi there fellow Vets. It has been my experience that a well written and documented Nexus letter goes a long way in determining whether or not you can get more than just your foot inside of the door. While it is true that the situation is a catch 22 why would you not educate yourself prior to applying for benefits? Everything that is presented to the VA as evidence needs to have all of the bases covered and NOD provides the links to that information. There is also a breakdown of the percentages as well as what they are looking at as determining factors. Make sure that any NEXUS letters include all of the bases being covered. If your physician has left any type of loophole then the VA will scratch at that issue like a cat in a bag of fleas. Read your letter several times to be sure you are covered and be ready, if possible, with any additional information. I recently sent in a NEXUS letter along with additional information containing links to websites and the person in Denver who was gearing up for sending me out for ANOTHER physical stated that it was not his responsibility to go through the links looking for the information. I replied, in my oh so “genuine” voice, that OK I would send him the information and I proceeded to mail 83 pages of documents in addition to the NEXUS. I guess he dropped me from his Christmas list. The point is that we all have to be doing due diligence when dealing with any of the branches which oversee our requests for compensation and not leave it up to one doctors interpretation. Merry Christmas and have a happy and healthy new year.

  3. asknod says:

    Your case is a classic example of why we advocate that you a) do it yourself or b) have an attorney involved. I’m 0/3 with 3 different VSOs and 3/3 on claims with myself in the Captain’s chair. Mr. Carpenter is a master of the VA system. You are very lucky to have him as your attorney. There are few with more knowledge.

  4. Dottie says:

    We just talked to our attorney, Mr. Carpenter. It took 2 and a half years to get the C and P exam on the hep c. after hiring the attorney, we got it. We had a nexus that the VSO never put into our file from the VA hepatologist in our favor already and the lawyer said the VA examiner nexus is so favorable that they aren’t even waiting on the 2nd IMO from the first Dr. They are sending it back to RO for a rating. It’s a shame you have to go to these measures to get what you rightfully deserve. I am assuming it won’t even have to go to BVA now. So now we have two nexus letters in our favor from their doctors. It will be interesting to see what happens now

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