Articles Posted in Veterans Law

stockfresh_4472715_veteran-letterpress_sizeS-300x200Most disabilities stemming from injuries or illnesses accrued or aggravated while in military service are compensable under the VA’s disability compensation benefits scheme.  A notable exception is when the illness or injury stemmed from the service member’s willful misconduct.

What the Law Says

The United States Code states that “no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs.”[1]  The Code of Federal Regulations (hereinafter “the CFR”) state that “[b]asic entitlement for a veteran exists if the veteran is disabled as the result of a personal injury or disease (including aggravation of a condition existing prior to service) while in active service if the injury or the disease was incurred or aggravated in line of duty.”[2]  The CFR defines in line of duty as:

an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran’s own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs…Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was: (1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.  (2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.  (3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court.[3]

The CFR defines willful misconduct as:

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There are many VA benefits a spouse is eligible for, but not everyone is eligible for the designation of “spouse.”  While what constitutes a valid marriage is usually left up to the individual 50 states, the VA does have its own interpretations and can add or subtract requirements in certain circumstances.  This brief article will highlight some anomalies in the VA’s marriage requirements.

stockfresh_291905_wedding-rings_sizeS-300x300The VA defines the term marriage as meaning “a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued.”[1]  The VA defines the term spouse as meaning “a person of the opposite sex whose marriage to the veteran meets the requirements of § 3.1(j).”[2]  Though the VA and Congress has not updated 38 C.F.R. § 3.50(a) and 38 U.S.C. § 101(31), the opposite sex requirement was invalidated when the Secretary of the VA announced the VA would no longer enforce it.[3]    Continue Reading

In order for the Department of Veterans Affairs (VA) to award service-connection for a disability, the Veteran must establish these three elements:

  • A current chronic physical or mental condition;
  • An event or stressor that occurred during Active Duty service; and
  • A link (also known as a ‘nexus’) that connects the chronic condition to the in-service event.

stockfresh_1296032_troops-foreground_sizeS-300x135Current Chronic Physical or Mental Condition 

If a Veteran is suffering from a condition (or conditions) that continue to ail him/her post service, and is considered chronic (or ongoing in nature), these condition(s) may be related to his/her time in service.  These condition(s) may include physical ailments, such as: Degenerative Disc Disease (DDD); hypertension (high blood pressure); and osteoarthritis; and diagnosed mental health conditions, such as: Traumatic Brain Injury (TBI); Post-Traumatic Stress Disorder (PTSD); and General Anxiety Disorder.

In-Service Event or Stressor During Active Duty

If a Veteran suffered an injury or illness while on Active Duty, this injury or illness may be compensated by the VA as a service-connected disability.  Please note that service-connection refers to the injury or illness being experienced while on Active Duty. This means that for Reserve components, or National Guard, the only way to establish service-connection is during any time the Veteran was activated or ordered to Active Duty for a specific time period, be it for training or recall purposes.  Some aspects of service-connection may require an eligible period of service, such as a specific length of time during a specific period of time (i.e. 90-days of total Active Duty service with at least one full day during a war-time period).  This may vary from benefit to benefit sought by VA.

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If an illness or injury is caused by VA activities, including VA healthcare, the VA offers an alternative procedure (38 U.S.C. § 1151, hereinafter referred to as “§ 1151”) to the usual remedies under the Federal Tort Claim Act (28 U.S.C. §§ 1346(b), 2671-2680, hereinafter referred to as “FTCA”).  This internal procedure mirrors the VA’s disability compensation procedure and takes full advantage of the highly veteran-friendly benefits granted by statute and regulation.  This article will briefly describe when both § 1151 and FTCA actions are available, what the procedures and requirements are, and what the possible remedies may be.  It is important to note that both § 1151 and FTCA actions may take place simultaneously, but an award from one may have to credit an award from the other.  Because many factors need to be weighed and certain deadlines have to be met, it is highly advised that a Veteran consults his or her attorney as soon as possible after receiving an illness or injury at a VA facility or due to VA care, and before deciding upon either a § 1151 or FTCA claim.

stockfresh_7295473_vet-concept-wooden-letterpress-type_sizeS-300x200The first thing to do is to look at the two actions.  FTCA is applicable any time an employee of the government commits a negligent or wrongful act or omission while acting within the scope of his office or employment.[1] The FTCA further defines employee of the government as “includ[ing]…officers or employees of any federal agency…and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.”[2]  This scope is far broader than the scope of § 1151, which is only applicable when the injury or death is caused by VA hospital care, medical or mental health treatment and examinations, and vocational rehabilitation or Compensated Work Therapy (“CWT”).  If a VA maintenance employee incorrectly hung a sign in the Lobby of the VA and the sign fell, injuring a visitor, then this visitor could have a claim against the VA under the FTCA.[3]  However, if a VA Doctor amputated the wrong limb of a patient, then that patient could have a claim under both § 1151 and the FTCA.

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Because most injuries and illnesses change over time, the Veterans Administration allows Veterans to file for an increase in certain disability ratings.  It is important to note that the VA will not automatically adjust a Veteran’s compensation if his or her condition worsens – the Veteran has to actively file for an increase, even if it is clear to the VA that the conditioned has worsened.

stockfresh_7143766_military-fatigues-flag-dog-tags_sizeS-1-200x300Disabilities rarely stay the same.  They improve, worsen, or change altogether throughout their existence.  When an injury or illness worsens, such as an arthritic knee losing flexibility or a veteran with Traumatic Brain Injury or TBI experiences greater memory loss or increased seizures, a claim for a disability rating increase should be filed.  There are a couple of options on what to file.  VA Form 21-526b, Veteran’s Supplemental Claim for Compensation, may be submitted as a formal claim for an increased rating claim.  VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, can also be used for increasing a rating. VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, can be submitted as a formal claim for total disability rating based on individual unemployability (“TDIU”).  It is import to know that a claim for TDIU does not increase the actual rating of a specific claim, rather it potentially increases the rate of pay if a condition(s) leads to the inability of a Veteran to find and maintain gainful employment.  A veteran may also file a VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC (“Intent to File”).  Filing an Intent to File form will preserve a date to act as the effective date as long as one of the forms mentioned above is filed within one year of filing the Intent to File form.

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stockfresh_7295473_vet-concept-wooden-letterpress-type_sizeS-300x200By regulation, the VA has a duty to grant “every benefit that can be supported in law.”[1]  However, the same regulation also states, in the same sentence, that the VA must also protect the interests of the Government.[2]  This competing interest necessitated the courts to continually refine the VA’s duty to maximize a Veteran’s benefits.  As it stands so far, this duty is robust and even includes inferring claims for individual unemployability (“TDIU”) and special monthly compensation.

The VA must assume that the claimant is always seeking the maximum benefit allowed under law.[3]  This includes assigning the most favorable diagnostic code (“DC”) if more than one equally applies.  In Vogan v. Shinseki, the Court held that the failure of the Board of Veterans Appeals (“BVA”) to consider any other DC under which the Veteran may be entitled to additional benefits establishes prejudice.[4]  This especially comes into play when the VA is rating by analogy.  For example, when rating for an undiagnosed illness due to presumptive service connection for qualifying Persian Gulf War veterans, there will be no precise DC for the undiagnosed condition – this is because the rating tables only list conditions with diagnoses.  The VA must look for a closely related injury or illness, preferably one that affects similar functions in similar body parts and have similar symptoms.[5]  To show that the VA is considering the highest rating within any given DC, in its decision the VA must discuss the next highest rating and why the current rating is the most appropriate.

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The fact that a Veteran may have broken the law since he or she has left the military does not take away the fact that that Veteran has served our Country with honor.  However, the fact that the Veteran ended up incarcerated does mean that the federal, state, or municipal government will be footing the bill for a lot of the Veteran’s care and therefore the VA is relieved of some of its duty to provide.  Contrary to popular belief, Veterans still can apply for and receive VA benefits while incarcerated.  What follows is a summary of some of the benefits a Veteran may receive and the special rules surrounding them.  Because there is a reduction of benefits to some incarcerated Veterans and some Veterans may be tempted to avoid incarceration by becoming a fugitive, Congress has enacted strict penalties for Veterans who the VA designates as fugitive felons.stockfresh_1964096_jail-cell-with-open-door_sizeS-300x162

Disability Compensation and DIC (Dependency and Indemnity Compensation) are significantly limited while in the big house under certain circumstances.  38 U.S.C. § 5313(a) states that

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Military service members often suffer injuries while serving our country.  When a medical condition develops that a physician believes will not heal enough in order for the service member to be able to perform his or her military duties within one year, the service member is then referred to the Medical Evaluation Board (MEB) for possible out-processing due to the medical condition.

In 2009, the Integrated Disability Evaluation System was established in order to bridge the gap between the Department of stockfresh_4360615_soldier-having-counselling-session_sizeS-1-300x200Defense (DoD) disability, and the Veterans Affairs (VA) disability procedures.   The IDES allows DoD and VA to work together by simplifying the entire military disability process as a whole, and is only utilized for service members who have attained conditions that disallow them to perform their military duties (labelled as “Medically Unfit for Duty”).

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The VA minimizes large legal hurdles in a disability benefit claim by allowing Veterans to reopen closed claims after the VA has issued a final denial.

stockfresh_182656_veteran-with-crutch_sizeS-199x300Though most Veterans and veteran service organizations put the primary focus of disability benefit claims upon medical evidence, in the end VA claims are legal procedures.  They are specific remedies requested from a federal administrative agency and are governed by federal statutes, federal regulations, and judicial precedence.  As with any legal proceeding, some of the toughest barriers to a remedy sought are the deadlines – often the statutes of limitations or the statutes of repose.  In allowing a Veteran to reopen a claim after the VA has issued a final denial in that very same claim, the VA has made it more possible that no valid claim should ever be uncompensated, even if the Veteran misses every single deadline.

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So, you just received an appointment for a VA Compensation and Pension (C&P) Examination.  Now what?

stockfresh_7295473_vet-concept-wooden-letterpress-type_sizeS-300x200The C&P examination is one of the most important appointments a Veteran should keep when pursuing a claim before the VA.  Although it is not the only factor in deciding a claim, this examination assists the VA in evaluating a Veteran’s condition as to the severity and whether the condition relates to military service.

Most Veterans both look forward to and dread these important examinations for several reasons.  For starters, a C&P examination (or examinations, pending the number and type of disabilities claimed) can take some time to complete.  A doctor will need to examine the Veteran for the conditions, which may include standard medical testing, providing lab specimens, answering specific personal questions, etc.  Some evaluations may require Range of Motion (ROM) testing, repetitive testing, and recording of limitations, flare-ups, and impact of function (or lack thereof) regarding employment.

Upon receiving the notice of examination, it is very important that the Veteran attends on the date and time prescribed.  As the Veteran is the only one who is notified of the examination, it is equally important to notify the Veteran’s representative or attorney of the upcoming appointment.  The representative may want to discuss certain aspects of the examination prior to attending.

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