Articles Posted in Veterans Law

As of writing this article, blue water Vietnam Veterans are entitled to the same presumptive service connection as if they had boots on the ground in the Republic of Vietnam.  The United States Court of Appeals for the Federal Circuit has ruled that blue water Vietnam Veterans are entitled to receive benefits for illness because of exposure to Agent Orange.

Vietnam Veterans know that for many years the VA has distinguished between what is known as “blue water Veterans” and “boots on the ground” Veterans.  Blue water Veterans are Veterans who served aboard ships off the coast of the Republic of Vietnam, or in Vietnam’s deepwater ports, between January 9, 1962, and May 7, 1975.  Boots on the ground Veterans are Veterans whose feet physically touched the ground in the Republic of Vietnam, even if just for one second, during that same period.[1]  For the sake of brevity, “brown water” Veterans (those who served in Vietnam’s navigable rivers and in-country waterways), Veterans who served on airbases in Thailand, and other Veterans who have been added to the presumptive service-connection list will simply be included under the category of “boots on the ground” Veterans.

In Procopio v. Wilkie, 2017-1821 (January 29, 2019)[2] (click here for the decision), the United States Court of Appeals for the Federal Circuit held that Congress had always intended all members of the uniformed services who served within the twelve nautical miles territorial sea of the Republic of Vietnam to be entitled to the presumptions detailed in 38 U.S.C. §1116.  Congress, the Court states, never had any intention of differentiating between blue water Veterans and boots on the ground Veterans.  The Court goes further to state that the VA never had the authority to add the boots on the ground requirement at a later date.  In adding this later requirement and subsequently denying Veterans who had served in the territorial waters off the coast of the Republic of Vietnam for Agent Orange related presumptive service-connected conditions, the VA ceased applying the applicable law accurately.  As of the day this article was written, February 1, 2019, the decision in Procopio had not been appealed.

If you need to make a claim because of Post Traumatic Stress Syndrome or PTSD, the VA has a form titled VA 21-0781 which you will need to use. On the form, the VA instructs Veterans to detail any in-service event which may have contributed to the Veteran’s claimed PTSD. In addition to these details, it is in the Veteran’s best interest to include the following information on the same VA 21-0781 form.

1. State how long these symptoms have lasted;
2. State whether these symptoms create distress or limit the Veteran’s ability to function normally;

Miltary Sexual Trauma (“MST”) is when a servicemember is a victim of sexual assault, forced or coerced into sexual activities, or exposed to “repeated, unsolicited verbal or physical contact of a sexual nature which is threatening in character.”[1]  Due to the nature of the military, its esprit de corps, its command structure, and the potential for severe retaliatory action, most sexual harassment and assaults go unreported.

Because of the gross underreporting of MST, it can be difficult for an MST survivor to accumulate enough credible evidence that the in-service event occurred to support his or her claim.  The VA cannot use the absence of an MST report in a Veteran’s service record as evidence that the event did not take place;[2] however, the Veteran cannot simply rely upon his or her statements that the event did take place.  He or she must submit additional credible evidence.  The VA details possible evidence which can corroborate the Veteran’s statements in 38 C.F.R. § 3.304(f)(5),[3] which states: Continue Reading

Arthritis and Hypertension are just two common conditions in an extensive list that the VA will grant presumptive service connection for if the symptoms manifest to a certain degree within one year after discharge from service. 

Usually, when a Veteran files a claim for disability benefits from the VA, he or she must show three things: (1) a current compensable condition, (2) an in-service event or injury, and (3) a direct link between the two.  With presumptive service connection, the Veteran only has to show that he or she has a current compensable condition and that he or she has met the other requirements for the presumption.  For chronic condition presumptive service, the requirements are[1]:

1. The Veteran served for ninety days or more during a period of war,
2. A chronic condition listed under 38 C.F.R. § 3.309(a) became manifest within a prescribed period (one year after discharge from service, except leprosy, tuberculosis, and multiple sclerosis, which are three years, three years, and seven years, respectively), and
3. This manifestation within one-year has to rise to the level of 10% under the VA disability rating schedule in 38 C.F.R. §4.40-4.150.

Several Chronic Conditions Are Accepted By The VA

The complete list of VA accepted chronic conditions is listed under 38 C.F.R. § 3.309(a) and includes such common conditions for Veterans as, but is not limited to, anemia; arteriosclerosis; stones of the kidney, bladder, or gallbladder; cirrhosis of the liver; diabetes; psychoses; Raynaud’s disease; and gastric or duodenal ulcers.

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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:

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