Veterans Law

February 28, 2018

Is My Family Entitled To VA Benefits?

The old adage “other agencies may take care of a Veteran’s family, but the VA only takes care of the Veteran” is only partially true. In certain circumstances, family members, dependents, and survivors of Veterans may be entitled federal VA benefits. These benefits may include an increase to the Veteran’s disability compensation, dependency and indemnity compensation (DIC), death compensation (including Accrued, Substitution, and Non-negotiated Benefits), educational and training assistance (DEA), health care, VA home loans and housing-related assistance, and death pension.

Dependent Pay

If a Veteran has a service-connected disability rated at or greater than 30%, the Veteran’s disability payments will be increased if he or she has a spouse and/or dependents – including biological children, step-children, and eligible parents. These increased payments for children continue until the 18^th birthday of children who are not enrolled in an educational institution. If the child enrolls in and attends courses at an educational institution, this compensation may be continued until age 26, as long as the attendance is recorded and sent to the VA. It is the responsibility of the Veteran to record and send to the VA proof of attendance on a VA Form 21-674, and any other pertinent forms, every year. The amount of time it takes the VA to process dependent pay can vary greatly.

November 11, 2017

Protections Against Employment Discrimination for Military Personnel and Veterans

by Tod M. Leaven

Even in our great nation, military service is not always as lauded as it should be and Servicemembers and Veterans are not always as sought after as employees as they should be. Fortunately, the United States Congress realized that we do not all act as we should towards these heroes and Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA). This brief article will focus on the anti-discrimination provisions of USERRA.

It is important to realize that USERRA is a floor and not a ceiling. In other words, it does not supersede any laws, regulations, or agreements that increase protections based on service in the uniformed services but it supersedes all those which reduce, limit or eliminate a right or benefit.[1] Continue Reading

September 18, 2017

When Being Bad Can Cost You Your Benefits: Willful Misconduct under the VA

by Tod M. Leaven

Most 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:

July 7, 2017

Love and Marriage, The Department of Veterans Affairs Style

by Tod M. Leaven

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.

The 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

June 22, 2017

The Three Elements of a Service-Connected VA Claim And the Importance of the Nexus

by Sal Lo Monaco

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.

Current 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.

April 25, 2017

Addressing Injuries Caused by the VA

by Tod M. Leaven

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.

The 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.

March 14, 2017

Increasing the Rating for a Current Service-Connected Disability

by Tod M. Leaven

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.

Disabilities 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.

February 21, 2017

The VA’s Duty to Maximize a Veteran’s Benefit

by Tod M. Leaven

By 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.

December 15, 2016

Can You Receive VA Benefits While Incarcerated?

by Tod M. Leaven

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.

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

November 29, 2016

The Military Medical Retirement Process

by Sal Lo Monaco

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”).