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Articles Posted in Veterans Law

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:

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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.

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As long as the veteran (1) served in a qualifying area of Southwest Asia during the qualifying dates; (2) has a qualifying chronic disability; and (3) this qualifying disability has manifest during a presumptive period, then the veteran qualifies for presumptive service connection for this disability.

The qualifying areas for this presumption are Iraq, Kuwait, Saudi Arabia, any neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, Afghanistan, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.[1] The qualifying dates are August 2, 1990, to the present. It is important to note that this list of qualifying areas does not include some countries where veterans were also exposed to toxins, such as Turkey. This does not mean that veterans who only served in Turkey are ineligible for disability compensation benefits, it simply means that they are not entitled to “Presumptive Service Connection” and therefore they have the additional hurdle of showing an actual in-service event that caused their disability.

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One of two events may take place whenever the VA pays a veteran more than it should, either an Overpayment or an Administrative Error/Error in Judgement. An overpayment is when the veteran or veteran’s dependent receives more money than allowed because of an action or lack of action of the veteran or dependent. This can include under-reporting income, not reporting a change in family status, or defaulting on a VA-guaranteed loan. This can also include failing to report Social Security back-pay while receiving VA Pension. In contrast, an Administrative Error/Error in Judgement occurs when the VA erroneously overpays a veteran or dependent through no fault of the beneficiary. This can include when the VA fails to provide clear notice of a specific reporting requirement, and there is no evidence that the veteran or dependent has reason to believe that he or she is not entitled to the extra compensation.

What Are Your Options?

When presented with a potential Overpayment, the alleged debtor may dispute the validity or amount of the debt, request a waiver of collection of the debt, offer a settlement amount to satisfy the debt, or any combination of the three simultaneously. There is no deadline to dispute the validity or amount of the debt, however if the alleged debtor submits a dispute within thirty (30) days of receiving the Notice of Overpayment (NOO) the VA will stay collection by offsetting other VA benefits. Unlike a dispute, there is a one-hundred and eighty (180) day deadline from the NOO to request a waiver of recovery of a debt.

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Sometimes it is easy to determine if someone is a veteran, but other times it can be pretty difficult. This brief article will shed some light on the Department of Veterans Affairs’ (“VA”) definition of “veteran” regarding benefit entitlement.

The pertinent statutes and regulations define “veteran” as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable” (38 U.S.C. § 101(2) and 38 C.F.R. § 3.1(d)). The three major elements of this definition are: (1) Service, (2) Active Duty, and (3) Discharge or Release.

It is important to note that the pertinent statutes and regulations do not require service in the armed forces. Rather, it states service in the military, naval, or air services. Including the word “or” in the definition means that the service does not need to be military. Including the broad word “services” greatly expands the scope of “veteran.” In addition to service in the traditional military, the VA includes service in the following as qualifying service:

This post will try to briefly explain the two most common and helpful forms of supporting evidence, Lay Evidence and Expert Evidence.

When submitting a claim to the Department of Veterans Affairs, it is always highly encouraged that you also submit additional evidence which can support your claim. The problem is that the VA is not always clear as to what evidence would be the most helpful and how that evidence should be arranged. The law states that the VA must “consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits” (38 U.S.C. §5107(B)) and that each disabling condition for which a veteran seeks service connection “must be considered on the basis of…all pertinent medical and lay evidence” (38 C.F.R. §3.303(a)). This means that the VA cannot deny a claim without first considering both the lay and medical evidence, if submitted. Though the VA uses the term “Medical Evidence,” it would be more appropriate to use the term “Expert Evidence” since often the evidence needed does not come from a doctor but rather from a counselor, social worker, or someone else with particular and pertinent expertise. Not only must the VA consider this evidence, but it also must specify in its decision which evidence it finds to be persuasive or unpersuasive and why. Continue Reading

Exaggeration, especially when it comes to military or combat experiences, is nothing new. Probably the only time that people exaggerate more is when talking about fishing or past dating. Lately it seems that everyone is lying about their past experiences, from Fox News’s Bill O’Reilly to NBC’s Brian Williams to the Secretary of the Department of Veterans Affairs. The more a veteran sees a person of trust, such as a news anchorman or an executive official, lie about their record the more that veteran may be tempted to do the same themselves, especially when there appears to be no consequences for such behavior.

First and foremost, it is important to remember that there are few things as important as duty, honor, and integrity, regardless of any outside consequence. When a veteran sacrifices his or her duty, honor, and integrity for pecuniary or social gain, that veteran violates a pillar of military service. In addition, dishonesty about military service can indeed be an actual crime.

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