Articles Posted in Veterans Law

38 C.F.R. pt. 4 (§§ 4.1 – 4.150) contains the VA’s Schedule for Rating Disabilities.  This is the law that the VA applies the facts of a specific Veteran’s claim for disability compensation to in order to rate that Veterans condition.  For example, let us say a Veteran submits a claim for a mental health condition. After assisting the Veteran with developing his or her claim, the VA determines that this condition is service-connected and that the Veteran suffers from:

  • mild memory loss,
  • chronic sleep impairment, and
  • occupational and social impairment with occasional decrease in work efficiency due to anxiety.

Based on these symptoms, the VA may assign a rating of thirty stockfresh_4360615_soldier-having-counselling-session_sizeS-300x200percent (30%).  This is because 38 C.F.R. § 4.130 (Mental Disorders) list these symptoms as justifying such a rating.  A problem arises when a Veteran files for a condition that is not listed in the rating schedule.

Suppose a Veteran of the Persian Gulf Wars filed for a number of claims, including: Continue Reading

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.

stockfresh_6621310_military-ship_sizeM-300x201Vietnam 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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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 18th 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.

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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

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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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

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.

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