(Transcript)

Cindy Speaker:  Good afternoon and welcome to this episode of our Facebook broadcast. My name is Cindy Speaker and I have with me today Nathan Guin of Gardberg & Kemmerly. He is a VA attorney and he is going to talk with us about a topic that I have never heard of and that is Nexus Medical Opinions and why they’re important to the VA disability process. So, Nathan, thanks for being with us today.

Nathan Guin:   Thank you for having me again, Cindy. I appreciate it.

Cindy Speaker:  We’ve done this a few times now, we’re getting pretty used to it. It’s getting more comfortable all the time.

Nathan Guin:   I would say I think this is the first time we’ve had no connection hiccups or anything like that so it’s definitely going a little bit more smoothly.

Cindy Speaker:  You’re right. Usually have some little glitch some place. Yeah. Well, Nathan, what is a Nexus Medical Opinion and what is the significance of it?

Nathan Guin:   At its base, a Nexus Medical Opinion is essentially just establishing a relationship between something that happened in service and a current disability. So, essentially, let’s say a veteran fell or hurt his knee somehow or another in service and still suffers from, let’s say, degenerative joint disease of the knee. Something with his knee. Or had a total knee replacement, things like that. Part of getting service connection would be getting a Nexus Medical Opinion and essentially what that’s going to say is that the current diagnosis, whether that be arthritis, total knee replacement, whatever it might be, is related and caused, as likely as not caused by the injury in service. Essentially it’s just providing a causal link between an injury that occurred and a lot of times denials will be, oh this was acute in service. So, you have to have that link to bring that together.

The reason why it’s so important is because it’s one of the essential components of a successful claim for service connection. You have to have an injury, event or disease in service, a currently diagnosed disability, and a Nexus Medical Opinion or a medical link. At its base it sounds very simple, but is one of the most important things you have to have in a case.

Cindy Speaker:  How strong does that causal link have to be? Does it have to be 100%? 50%? How strong of a link does there need to be established there?

Nathan Guin:  The standard is as likely is not. Which basically means, over 50%. So if that’s 50.0001, as long as it is a hair over 50% and a doctor will state that, and the magic words are, as likely as not. In terms of percentages, it’s just the tiniest portion, the tiniest nudge over 50% and that’s really what the standard is. It doesn’t have to be 100%. I just has to be as likely as not that that’s what caused it.

Cindy Speaker:   You mentioned the magic words, is there a fairly specific format that this opinion needs to be expressed in?

Nathan Guin:   The more rational and the more through the opinion is, the better but at the very end when you’re concluding, the magic word is definitely something like … Or the magic sentence, phrase, would be, and I’ll use the knee example again, veterans currently diagnosed with degenerative joint disease of the bilateral knee, so the left knee, the right knee, whatever it may be, is as likely as not due to x event that occurred in service. A lot of times it’ll say, as likely as not related to the fall that veteran sustained on July 4th, 1968 and therefore it’s causally related.

Cindy Speaker:   Now, I assume it’s a doctor that expresses this opinion? Would it be a family doctor or what type of doctor would do this?

Nathan Guin:  It doesn’t even have to be a doctor necessarily. It can be anybody, and there’s a code section which I won’t bore everybody with, that says that competent medical evidence can come from basically anybody who is competent to render medical opinions. We can get an opinion from a physicians assistant, nurse practitioner, in some cases registered nurses, so it doesn’t have to be a doctor. It can be any medical professional. It could be, but rarely is, VA doctors, they can make the opinions but they rarely do. It can be a family doctor. There are a number of medical professionals that provide VA opinions, as likely as not Nexus Opinions for veterans. You kind of have to search around for those, we have a couple that we use but it really can be any medical professional. It does not have to be a doctor. Specifically, it doesn’t have to be a VA doctor.

Cindy Speaker:  I’m just curious, cause Nathan, we talked before about another very specific topic to VA claims and that was the Compensation & Pension Exams. Does this in any way relate to that? Maybe it doesn’t, I’m just-

Nathan Guin:   Yeah. It does because the C&Ps, the Compensation & Pension Exams can act as a Nexus Statement.

Cindy Speaker:  Oh, okay.

Nathan Guin:  Sometimes they do. We see it more in PTSD cases. They’ll relate it to service. Frequently, it’s to combat those negative opinions. A lot of times the C&P examiners will find that there is no link. That it’s not at least as likely as not. There’s not a causal link. So, you have to combat that. Going along with the 50% thing, a nudge over 50%, if there’s a balance of the evidence then they have to give the benefit to the claimant. If you can give them as strong of a statement from your doctor saying it is related and it goes up against the C&P that’s negative, they’re supposed to give the claimant the benefit of the doubt and bump them up and grant the benefits.

Cindy Speaker:  Okay, interesting. Now, this is just so complex. A veteran, they have this disability, they believe and I’m sure they are correct, that there is a causal connection. Now, they have to work through all this paperwork. It sounds like you almost need a lawyer to work through it. Do some veterans … I’m sorry, go ahead.

Nathan Guin:   I’m sorry. I’ll give you more time for your question.

Cindy Speaker:   I was just going to say, is this something that a veteran can do on their own? How would they even know that all of this exists?

Nathan Guin:   They can and I guess the easiest way to say this, a lot of times they’ll spell it out. They’ll say there’s no link. So, don’t explicitly tell you in a denial that you need a Nexus Medical Opinion. A lot of times it’ll be, “We found no link.” Or, “The C&P examiner found no link.” So, they can, in theory, a veteran can do it on their own but you run into issues like, they only go to the VA and VA doctors are not usually comping at the bit to give positive Nexus Medical Opinions. Or, you have some family doctors, great family doctors or specialists, whoever they may be, that are really good doctors, good people, it has nothing to do with that but they’re kind of reluctant, a lot of doctors are reluctant to put that out there and say I’m sure. Even if it’s as at least as likely as not, it’s like they’re saying they’re sure. A lot of them are reluctant to put that on paper. Which, I can understand that they might not want to do that.

They can do it on their own but there are certainly limitations and environmental factors, I guess for lack of a better term, that can make it more difficult or even impossible for them to do it on their own.

Cindy Speaker:   So getting an attorney involved, like you, and I know you handle a lot of these cases, does it cost the veteran? How do they pay for your services?

Nathan Guin:  Generally speaking, if a veteran wants to hire us, we’re free unless we win, basically, is the easiest way to put it. There are obviously sometimes costs associated, like with ordering medical records or if we did need to get a Nexus Medical Opinion and those, if we are successful, are recouped at the end. There’s usually not an upfront cost in terms of hiring us or if we need to get a Nexus Medical Opinion. I think I kind of alluded to earlier, we have a couple different medical professionals in different fields that we use pretty frequently to try to help our cases and get veterans the benefits that they’re entitled to. I guess, we have connections, you could say.

Cindy Speaker:   That’s great. It sounds like a lot of this that you’re really able to facilitate and streamline a very complicated process, on behalf of the veteran. Was that a fair statement?

Nathan Guin:   I think so. It’s something that we deal with pretty frequently. I’ve had a couple different cases just recently, I’ve had probably half a dozen in the past, this year alone where I’ve looked at the case and said, “Man, we really need, there’s some good stuff here.” and you can kind of connect the dots if you really want to but, they really need you to be explicit and we’ve had successful outcomes in those cases because we have said, “We need to bite the bullet here. Get this Nexus Medical Opinion.” And we’ve come out with beneficial and positive decisions for the veteran.

Cindy Speaker:   Let me go back to the Compensation & Pension Exams, because we mentioned that. You made a comment that sometimes the C&P exam is sufficient and you don’t have to have the Nexus Medical Opinion. Can you give me an idea of percentage. How often do you need these Nexus Medical Opinions?

Nathan Guin:  The majority of the time. The vast majority.

Cindy Speaker:  Okay.

Nathan Guin:   The C&P Exams, by their very nature, are supposed to be VA medical opinions and so they’re essentially … it’s the VA asking their own doctors to give them an opinion and say is it as likely as not or you know, is it not. They usually act as a negative Nexus.

Cindy Speaker:  There’s kind of an inherent conflict of interest there.

Nathan Guin:  It seems to be. Yeah. You could say that for sure. Sometimes, it comes out right but in those very few instances it seems like the evidence is so overwhelming that something is related to service, whatever condition it may be, like I said, a lot of the times it’s PTSD because they can confirm stressors and things like that, that are a little more difficult to prove than … Or are a little bit easier, through service records than you could for a physical injury itself. It’s kind of counter intuitive. That’s usually the ones where we see positives and even then, it’s very rare. A lot of times the C&Ps are not that helpful for the veteran themselves.

Cindy Speaker:  Okay. Is there cost associated, you said? You said something about a cost for the Nexus Medical Opinion, what kind of cost is that?

Nathan Guin:  So, it depends on where you get it. Obviously, if you can get one from the VA, then you’re good to go and I’m not through the VA health system, but you pay whatever your copay was or if there’s any cost associated with that at all, then that’s what it would be. The same for if you see a specialist or a private doctor. Sometimes they’ll charge a fee. Sometimes it’ll just be the cost of copay for that visit. It really kind of depends but usually it’s going to be somewhere in the range of, at the very low end probably $250, at the more median level around $500 to $750, for an opinion on that because that’s usually for … They have to review the claims file from the veteran which sometimes can be 2,500 pages or more. That’s obviously time consuming to go through so many documents and then they also have to go through any current documents that they have from other doctors to try to make that link. A lot of it’s document review and obviously, people’s time, especially medical professionals times are very valuable. There’s sometimes a substantial cost that comes with it. It really just depends on how far you have to go to get a Nexus Opinion. If you can get it from your normal doctor or not.

Cindy Speaker:   At what point do you get these opinions. So the veteran files his claim for disability and begins the process. I think they have to have the C&P Exam. What are the steps. Walk us through the steps of a VA disability claim if you would. They file the claim, and by the way, can you help with that? Or do they have to do that on their own?

Nathan Guin:   Kinda sorta. The regulations bar anybody else from filing the claim. A lot of times people don’t know where to get the forms. They’ll be a potential and they’ll say I want help with my VA claim and we’ll say we can’t get involved unless there’s a decision, but here is … You can find it on the internet but a lot of times people either don’t have a computer or they don’t have access to it. We can give them the forms they need to fill out and say come back when you have a decision. We can’t fill out the forms and do evidence submission, things like that. There has to be a rating decision before we can get involved.

Cindy Speaker: Let me just stop you there for a second. If they file first, then do you only get involved if they get denied?

Nathan Guin:   Not necessarily. The VA is different. It’s similar and also very different from social security, in many aspects. The most significant of which is it’s incremental. A lot of times people get denied but we also take cases where someone gets service connected but it’s for 10%, 20%, 30%, whatever that may be and they say well that’s not enough or the effective date, they believe is incorrect. There are different things you can appeal. Obviously, you can appeal for higher ratings, earlier effective dates. It’s not just denials, it’s veterans who are unsatisfied with their current ratings and want increases and feel like their condition warrants it and we help with those as well.

Cindy Speaker:   Excellent. Excellent. When can they be submitted as evidence? At what point in the claim are they actually submitted as evidence?

Nathan Guin:  The beauty of the VA is that there’s no deadline necessarily for when evidence can be submitted. You can submit it with your initial claim. You can submit it with a notice of disagreement. You can submit it while you’re waiting to get a rating decision or while you’re waiting to get a statement of the case. You can submit it any time. The only time that you can’t … A lot of times if you go up to the board of veterans appeals and you have a hearing and the case isn’t remanded for further development, at that point evidence submission is kind of cut off unless you ask them to keep the record open for a number of days to get an opinion, if you don’t already have one. Really, at any point in the process you can submit a Nexus Medical Opinion and it is to be considered, reviewed as evidence for your claim.

Most of the time, we’ll submit those with pleadings. If we have a notice of disagreement or a 409, which is an appeal to the board of veterans appeals. A lot of times we’ll submit it within those ’cause we can make additional arguments and bring in more of the evidence that we have to link everything together but they can be submitted at any time.

Cindy Speaker:  Okay. You know, Nathan, next time, I would love to ask you to really recap and go through the steps of a VA disability claim but I have a feeling that’s a lengthy discussion, isn’t it?

Nathan Guin:  It can be. It can be as easy or as difficult as you’d like it to be.

Cindy Speaker:  Maybe we could go in depth another time because here’s what I’m thinking. I know some veterans, I have a friend that’s a veteran and you did a training, kind of, well we did an interview but it was a training on some of these issues for veterans who are disabled. They’re having health problems and they’re not getting any help and they don’t even realize they’re eligible or what to do. Sometimes it’s related to the less than honorable discharge, which you’ve talked about that in another session too. In going through this, can you give us kind of maybe just the bullet point steps.

They apply for disability, you can maybe help them find the paperwork. They do that themselves. Then suppose they get their rating or whatever, you could potentially step in and help them in what areas? I’m starting out with the things that we expressed already but you talked about you could potentially help them with that rating. Maybe get it higher. Take it from there and tell us a little bit more about how an attorney can be helpful in this process.

Nathan Guin:  Bare bones, you’d have the application, like you said, the rating decision and you can appeal for an increased rating or you can appeal for service connection if you’re denied. At any point after the rating decision is issued, an attorney can get involved. If you get your rating decision back and you still want to go at it yourself and file a notice of disagreement, you can do that, obviously. Basically at any point in the process, we can be engaged in the case and be hired to help any veteran with their cases.

When you get a rating decision, you have to file a notice of disagreement within one year of receiving that decision. There is a form that is associated with that. I’m not sure what number it is off the top of my head but you submit that. The next thing you’ll get is what’s called a statement of the case. That’s essentially a rating decision, it’s just formatted differently and it’s the next step so they have to differentiate between the two somehow so you know where you are. At that point, you have 60 days to file what’s called a form nine. That’s easy because it’s form nine. You can find that. You can always submit any additional evidence you want to with that. That will take you to the board of veterans appeals where you can either have a hearing or you can opt not to have a hearing with the veterans law judge.

Those are all conducted at the regional offices. Whatever state you are in. There’s a few that have multiples but generally speaking, they’re at the state capital. Like, in Alabama it’s in Montgomery. Mississippi, Jackson. So on and so forth. They’ll issue a decision and they can either grant, deny, or remand your claim. Let’s say they grant it. You can say I’m happy, we’re good to go. Everything’s done. If they deny it, you can either file a motion of reconsideration or you can have 120 days to appeal it to the court of appeals for veterans claims. If they remand it, then it kind of turns it around and sends it back to the regional office for further development, whatever that might be. Then, the regional office will issue what is called a supplemental statement of the case.

Sometimes those are done before the board hearings. Sometimes people will get a statement of the case, you’ll appeal it and then you get a supplemental statement of the case and then you get a hearing. Just kind of depends on how it goes. From there, it goes back up to the board and then the whole system goes forward with that, whether you’re granted or denied and you can take that to the court of appeals for veterans claims. That’s kind of the easiest way to explain it. It’s still a little bit-

Cindy Speaker:  That is fantastic information and I hope, for those of you watching, whether you’re watching live or watching via the replay. If you have friends, family members, loved ones who are veterans and they have some kind of a disability or medical situation, they are not collecting benefits but you think potentially they would be eligible, I hope that you’ll share this with them because I think, Nathan you just did a beautiful job of laying that out. Like I said, this is a very complicated process and I think that the fact that you know all the steps and are able to guide a veteran through it. Let me ask you this, if a veteran wants to get in touch with you, how can they do that?

Nathan Guin:  They can give us a call here at our office in Mobile. It’s 251-343-1111 is our phone number. They can also find us on the web at GardbergLaw.com, that’s GardbergLaw.com. If they want to they can also reach out to us via email and that would be vacontact@gardberglaw.com, again, GardbergLaw.com. Those are a couple different ways they can get in touch with us and we can answer any questions they may have.