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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The roads and highways throughout Upstate South Carolina and Western North Carolina are some of the most scenic routes in the country, and the Blue Ridge Parkway and the “Tail of the Dragon” near Great Smoky Mountain National Park are highlights for motorcycle enthusiasts. However, these roads are windy, and a motorcycle accident can happen without warning.

stockfresh_5445021_traveling-on-motorcycle_sizeS-300x276Whether you are driving near Asheville or another area of Western North Carolina or Upstate South Carolina that is popular among motorcyclists, it is important to know how to share the road safely.

Here are some important tips from the National Highway Traffic Safety Administration (NHTSA) that can help you travel safely alongside motorcycles regardless of the type of road you are on.

Understanding How Motorcycle Accidents Happen

A crash involving a motorcycle often occurs when a driver does not appreciate that motorcyclists are vehicles — just like a passenger car — and thus have the same rights and responsibilities of an automobile driver.

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stockfresh_86920_nurses-standing-outside-a-hospital_sizeS-300x200Nurse do extraordinary work in promoting patient safety. We often think about the important role that physicians and surgeons play in providing life-saving treatment to patients in hospitals and other healthcare settings in Western North Carolina and Upstate South Carolina and across the country, but nurses also play an extremely important role.

According to an article from the Robert Wood Johnson Foundation, nurses are essential to improving patient safety in all aspects of American healthcare and to improving medical safety more generally.

More Nurse Leadership Could Mean Improved Patient Safety

According to the article posted by the Robert Wood Johnson Foundation (RWJF), if we want to improve American healthcare and to increase patient safety by preventing medical errors, then we need to give nurses bigger leadership roles in hospitals and physician’s offices. As the article explains, a recent RWJF Initiative on the Future of Nursing released a report with recommendations for improving medical safety. One of the most notable recommendations was that “nurses should be full partners, with physicians and other health care professionals, in redesigning health care in the United States.”

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When Memorial Day comes around each year, we know it is the start of summer. Since many families in Western North Carolina and Upstate South Carolina spend time outdoors and take vacations, now is the perfect time to think more about summer safety, Memorial Day safety, and ensuring that your family remains healthy throughout the season.

stockfresh_7102509_memorial-day-celebration_sizeS-300x277In the event that you or someone you love does sustain a serious injury this summer, an experienced Western North Carolina personal injury lawyer can help.

History of Memorial Day

When we gather around the picnic table or head out of town for a Memorial Day vacation, few of us think about the history of the holiday. According to an article from the U.S. Department of Veterans Affairs, Memorial Day officially became a holiday three years after the end of the Civil War in 1868. At that time, the Grand Army of the Republic (an organization made up of Union veterans) established May 30 as “Decoration Day,” or a time to decorate the graves of those killed in the Civil War.

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Each summer, many residents of Asheville, Waynesville, and Franklin, NC, as well as residents of Greenville and Spartanburg, SC, and surrounding areas enjoy boating with friends and family. Whether you are planning to enjoy boating on one of the numerous lakes in Western North Carolina or Upstate South Carolina, or if you are planning a drive to the coast, it is important to learn more about boating safety to avoid personal injuries.

stockfresh_3227578_man-boating-on-lake_sizeS-300x200May 20-26 is National Safe Boating Week. Now is a great time to learn more about safe boating practices and to understand issues of liability when boat accidents happen.

Tips for Safe Boating This Summer in North Carolina and South Carolina

Western North Carolina is full of popular recreational lakes, such as Lake Lure and Lake Fontana. Yet without practicing safe boating, accidents and boating injuries can happen.

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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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When families make the decision to put their loved ones in a nursing home, it usually happens because the family is not equipped to provide the kind of care that their loved one needs – and they hope that the nursing home can.

While many nursing homes take good care of their residents, too many nursing home residents find themselves in very vulnerable situations. Perhaps thstockfresh_6876639_nurse-pushing-old-man-on-wheelchair-in-hospice_sizeS-300x200ey do not have their full mental faculties. Many times they cannot walk, bathe, or use the bathroom without assistance. Those vulnerabilities can make them targets, and many rest homes do not do enough to protect their residents from abusive workers.

A recent investigative report from CNN looked into the issue in detail and discovered that more than 1,000 nursing homes have been cited for mishandling suspected sex abuse cases.

Building a new home is a time-consuming, stressful process that can have a lot of payoffs for the new homeowner. For one, if you have been monitoring the construction to some extent, you may have reasonable confidence that the construction is being done right and that contractors and subcontractors are not cutting corners.

You can also stockfresh_1456672_home-inspector_sizeS-200x300generally expect to have fewer problems with a new home that you might with a pre-owned home — fewer pests, less risk of mold or structural problems, etc. Except that is not always the case.

What happens if you have moved into your new home and you are already noticing problems? Who is responsible? What can you do?

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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