Articles Posted in veterans disability

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 Defense (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”).

Continue Reading

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.

Though 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.

Continue Reading

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

The 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.

Continue Reading

VA Disability Benefits are reserved for ill or injured veterans who served our great nation.  Because of veterans’ sacrifices, special laws and rules give veteran disability benefits certain extra protections that other compensation programs do not enjoy.

VA disability benefits are like no other compensation program in the United States.  Although they share some similarities with other programs such as Workers’ Compensation and Social Security Disability, VA disability benefits are unique and more secure in many ways.  This security is codified in 38 U.S.C. § 5301, the VA Benefits Nonassignability and Exempt Status Law (hereinafter referred to as the “Shelter Law”).  Additional securities are guaranteed through VA specific rules and regulations. Continue Reading

Sometimes a Veteran may be entitled to a higher disability rating than is contemplated in the Schedule for Rating Disabilities when the VA’s schedule does not contemplate the level of symptoms or disability that the Veteran presents.

The VA’s Schedule for Rating Disabilities (hereinafter referred to as “Schedule”) is found in 38 C.F.R. Part 4, §§ 4.40 – 4.150.  Separated into separate sections depending upon body system and condition, the Schedule lists a host of illnesses and injuries, designating particular rating percentages for different levels of symptomatology.  Continue Reading

The Presumption of Sound Condition is a powerful doctrine when used appropriately.  It can force the VA to accept that the Veteran entered military service in sound condition and is only rebuttable by Clear and Unmistakable Evidence – a high threshold to pass.

38 U.S.C. § 1111 states:

For the purposes of section 1110 of this title, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.

It is important to understand that in order for this presumption to apply, a Veteran must have been examined, accepted, and enrolled for service.  For most Veterans, examination, acceptance, and enrollment for service formally took place at a Military Entrance Processing Station (MEPS).  If there was no examination, there is no presumption.  Recently with the operations in Iraq and Afghanistan, National Guardsmen and Reservists were called to active duty but not given a formal service entrance examination.  In this case, the pre-deployment examination should be used.  A Veteran can rely on the presumption if an examination did take place but the VA either cannot find the records[1] or can only find partial records and there is no note of the condition. Continue Reading

In pursuing VA veteran disability benefits, the Special Rules for Combat Veterans Law (38 USC § 1154) provides combat veterans with a much-needed advantage in proving an in-service occurrence or aggravation of illness or injury.

The three major elements a veteran must prove is (1) a current condition, (2) an in-service occurrence or aggravation of illness or injury, and (3) a causal connection between the in-service occurrence or aggravation and the current condition.  Because combat is wrought with immediacy and uncertainty, records that might normally have been created may likely be incomplete, may not have been created, or if created they may have been destroyed.[1] Because of this, Congress enacted 38 USC § 1154(b), which states:

Continue Reading

In the event of claimed military sexual trauma (“MST”), the VA rater cannot treat the fact that the assaults were not recorded in either a veteran’s service personnel record or a veteran’s medical records as pertinent evidence against a veteran’s claim that a sexual assault occurred. In other words, a lack of official documentation does not equate to negative evidence.

Veteran, AZ, served from 1973 to 1974, and was pregnant when she was honorably discharged. In 2004, she was diagnosed with PTSD, which she stated was due to a senior non-commissioned officer (“NCO”) sexually assaulting her while in service, resulting in her pregnancy and the birth of her daughter. AZ filed a claim for service connection for PTSD and was denied due to the fact that there was no record of the sexual assault in her service records. AZ submitted lay statements from her siblings, whom all stated that she told them, at the time of her pregnancy, that she was sexually assaulted by her NCO and that she did not report him to any military authorities out of fear. She was denied again and she appealed to the Board of Veterans Appeals (“BVA”), which held that her service records must support and not contradict the veteran’s testimony. The BVA stated:

Here, the evidence of record does not corroborate the Veteran’s account . . . . [T]here is no documentation in the service records to indicate that the Veteran reported having been personally assaulted, or that she instigated proceedings against her alleged attacker. Moreover, the Veteran’s service treatment records contain no evidence that the Veteran sought treatment for the alleged sexual or physical assault itself. . . .

A VA disability rater cannot consider the positive effects of current medication when rating a disability if the applicable diagnostic code is silent with respect to medication. However, this can be reversed by the VA amending the Federal Code.

During the rating decision, the VA looks at the current level of disability claimed and applies the rating schedule, found in 38 C.F.R. Book C. Quite often, the rater looks at the current level of disability as the veteran presents at that moment, as described in the veteran’s application, as described by a medical doctor, and as presented in the veteran’s medical charts. The veteran’s current condition is usually rated including the positive effects of any medication. Continue Reading

Some of the best advice a veteran representative or attorney can give to a veteran, who is filing a claim for a new disability or a claim to increase the rating of a current service-connected disability, is to journal. Journaling will (1) help the veteran remember his or her conditions, the severity of his or her conditions, and the limitations his or her conditions set; (2) help the veteran record and remember dates of flare-ups; (3) help the veteran accurately record sleep; (4) help the veteran precisely and efficiently convey this information to his or her primary care provider so that this information makes it into the veteran’s health records; and (5) help the veteran’s representative or attorney better understand the complete picture and look for potentially compensable secondary disabilities.

Continue Reading

Contact Information