On April 14, 2012, four attorneys and a paralegal from Goodman, Allen and Filetti’s Veterans Benefit Group participated in a free legal clinic for veterans and their dependents in Virginia Beach, Virginia. The clinic, which was sponsored by the American Bar Association and the Old Dominion University Student Veteran Association, was attended by 85 veterans, who were able to meet with an attorney to discuss their case and get free legal advice on how to proceed. Another free clinic is scheduled to take place in late Summer, and the attorneys and paralegals from Goodman, Allen and Filetti will be there once again.
You may have heard that VA had proposed new rules recently to allow veterans with ischemic heart disease, Parkinson’s Disease, and B-cell Leukemia, to get service connection automatically if they were exposed to Agent Orange. These rules have now been put on hold while Congress looks at whether or not to allow them to go forward.
For many years, the law has said that when scientists discover that a disease is likely to have been caused by exposure to Agent Orange, VA must add those conditions to a list of conditions which are presumptively service-connected. This means that if you were exposed to Agent Orange (and veterans who served in country in Vietnam are all presumed to have been exposed), and you develop the disease later on, you are automatically service-connected, unless VA can show there’s another cause. This list now includes conditions like Type II diabetes, and prostate cancer. The conditions are listed at http://www.publichealth.va.gov/exposures/agentorange/diseases.asp#veterans.
You can read the regulation if you like at 38 C.F.R. § 3.309(e).
Recent findings in the scientific community have confirmed that there is a relationship between Agent Orange exposure and ischemic heart disease, Parkinson’s and B-cell Leukemia. So, as was required by the law, VA proposed to add these conditions to its list of conditions that are presumptively service-connected.
The proposed regulations were published last March, and were set to become final in May. However, the United States Senate has voted to delay implementation of the new rules for another 60 days in order to think further about whether or not the science supporting the link to Agent Orange is any good. According to some news reports, some members of the Senate are upset about the amount of money it would cost to pay benefits to veterans with these diseases, and believe that these payments would be based upon weak evidence.
So, now it’s time to wait and see what will happen. In the meantime, if you’ve filed a claim for one of these conditions hoping that the new rules would be in effect soon, you’re going to have to wait a little longer. You should keep in mind that even if these regulations are never put into place, you can still tell the VA that service connection for your condition should be granted on a direct basis. If you have evidence that you now suffer from one of these conditions, you can cite to the studies relied on by VA in proposing this change, linking these conditions to Agent Orange exposure. While this may not be enough to win your case, it should require VA to consider assisting you by asking for a medical opinion about the origin of your condition.
PTSD is a psychiatric condition where a traumatic event occurs (called a “stressor”), and later (sometimes many years later), the veteran experiences symptoms related to that event. These symptoms can include nightmares, flashbacks, guilty feelings, an increased startle response, social isolation, and difficulty with authority figures, to name a few.
Normally, when a veteran seeks service connection for a condition, the claim can be granted if there is a current diagnosis and a doctor gives an opinion that the current condition is related to service. When a veteran is trying to get service connection for PTSD, it’s not so easy, because VA regulations provide an extra hurdle for veterans to get over before being service-connected for PTSD.
To be granted service connection for PTSD, the veteran must have a current diagnosis of PTSD. In addition, the psychologist, counselor or psychiatrist who provides the diagnosis must attribute the PTSD to a stressor that happened while the veteran was on active duty.
Now, here’s the twist. If the stressor is something that happened to the veteran when in the military, but not in combat, there must be evidence that the stressor actually occurred. The proof that the stressor happened cannot come from the veteran’s own memory of the event. Instead, there needs to be independent confirmation. This can come from service records or official military histories, a statement from a buddy who witnessed the event, or a newspaper article about the event. There is one exception to this rule that makes it a little bit easier for a veteran who was assaulted to prove that the assault happened. A bit more about that later in this post.
If the stressor occurred during combat (which includes coming under enemy fire or shelling), it’s a little easier to prove the case, because the stressor does not need to be independently confirmed. However, the veteran will still need to prove he or she was in combat. A veteran can show he or she was in combat through his or her own testimony, as well as through official records.
Here are a few examples to illustrate how a PTSD claim works.
Let’s say that our friend Joe Veteran was in Vietnam in 1968. Although Joe’s military occupational specialty (MOS) was supply clerk, that didn’t stop him from being assigned to various other jobs, including guard duty and driving soldiers back and forth between his station and another twenty miles away. One day in May 1968, Joe was assigned to drive two other soldiers to another station. Along the way, there was a small village where children were playing beside the road. As he was driving by the children, one of them ran out in front of the Jeep, and before he realized what was happening, Joe hit the child. The villagers took the child back to care for him, and although Joe told his superiors about the accident, he isn’t sure if it was officially reported or not. Now, 40 years later, when Joe is driving and sees a Jeep, memories of the accident come rushing back. He has bad dreams about hitting the child, and hasn’t been able to hold a job for more than six months before—he always seems to get into an argument with his boss, and quits or gets fired. After talking with his buddy Steve, who is receiving a 100-percent disability for PTSD, Joe agrees to go to the VA to be seen at the PTSD clinic. His doctor says there’s no doubt, he has PTSD from the stressor of the in-service accident. In this case, because the event didn’t happen during combat, Joe has to show that the accident actually happened. His word by itself, isn’t enough to prove the case. Joe can confirm the stressor in several ways. He can see if he can locate one of the soldiers who was with him in the Jeep on the day of the accident. If either one of them can provide a statement about the accident, that should be enough to confirm the stressor. Joe could also ask for VA’s help to see if there was an official report made about the accident. If so, that report would also be enough to confirm that the stressor occurred. If Joe can’t find any independent confirmation of the stressor, however, he is out of luck, and cannot be service-connected for PTSD.
Let’s change the facts now. Instead of having an accident on the way, this time, while on the road, Joe and his fellow soldiers are suddenly surprised to find that enemy shells are exploding around them. They manage to get away, but years later, Joe finds himself ducking down every time he hears a car backfire or another loud noise. He has nightmares about getting killed by one of the shells, and Joe’s doctor says his PTSD is caused by the shelling incident. Since Joe came under enemy fire, he is considered to have been in combat. Therefore, Joe doesn’t have to prove that the shelling incident actually occurred, and it will be easier for him to be granted service connection. Under an old set of rules, VA sometimes will say that without a medal documenting combat, or a combat MOS, that there’s no evidence of combat. However, VA is not allowed to simply ignore a veteran’s report of having been in combat. This alone can be enough to prove combat.
A third situation is one where a veteran is assaulted in service. Let’s get back to Joe. This time, Joe and his sergeant don’t get along. One day, after a heated argument, Joe’s sergeant sneaks up behind him and hits him over the head with a large piece of wood. No one else is there to witness the event. Joe doesn’t want to get in more trouble with his sergeant, so he doesn’t report the incident. However, he does ask to be transferred to another company, making up an excuse as to why. Now, years later, when he sees someone who looks like his sergeant, Joe has flashbacks about the attack. He’s been diagnosed with PTSD as a result of the attack, and applies for service connection. Since the attack didn’t happen in combat, Joe has to prove that the attack actually occurred. VA recognizes that veterans are often unwilling to talk about or report such attacks, and the rules make it a bit easier for a veteran to prove that the stressor occurred. He can prove it happened through showing things such as behavior changes, requests for transfer or though statements from family members. Here, for example, although Joe gave an excuse for asking for his transfer to another company, he can use that event to prove that the attack occurred.
Here is the text of some relevant VA regulations:
38 C.F.R. § 3.304(f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Although service connection may be established based on other in-service stressors, the following provisions apply for specified in-service stressors as set forth below:
(1) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.
(2) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.
(3) If a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.
38 C.F.R. § 4.125(a) If the diagnosis of a mental disorder does not conform to DSM-IV or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis.
One of the most frequent questions I hear from veterans sounds something like this:
“Why did I get retroactive benefits for only a few months when I was injured (or when my disease started) years ago?”
Another similar question is “I filed my first claim 20 years ago—so when I won my case, why didn’t my benefits go back to when I filed my first claim?”
Here’s the answer.
Under the law and VA regulations, it is illegal to pay any benefits before the date you filed your claim that led to the grant of service connection.
There are a few exceptions to this rule, that allow a veteran who files a claim within a year of separation from service to receive benefits retroactively to the date after separation from service, or that allow for retroactive payments when the law changes. These really are exceptions—and 99 percent or more of cases will follow the regular rules.
As a practical matter, let me explain how this works.
Let’s say that a soldier (we’ll call him “Joe Veteran”) was in service from January 1966 to January 1969. In June 1968, Joe was loading supplies into the back of a truck when he slipped and fell, injuring his right knee. Joe was treated in service and diagnosed with a twisting injury. He was put on profile, and when he left service six months later, the knee was still painful. Joe now has been diagnosed with severe arthritis in the right knee, and might need to have surgery to replace the joint. Joe is now service-connected for his right knee, and receives a 40 percent disability.
Let’s look at how the date the claim is filed affects when benefits can be paid:
(1) Six months after leaving service, in July 1969, Joe files a claim for service connection. It takes the VA two years to process the claim, but it is granted in 1972. Because Joe filed his claim for service connection less than one year after he separated from service, Joe will be service-connected effective in January 1969, the day following separation from service. Joe’s benefits will be paid prior to the date he filed his claim.
(2) Six months after leaving service, in July 1969, Joe files a claim for service connection. This time, however, the claim for service connection is denied by the VA Regional Office (the “RO”) in 1972 because Joe doesn’t provide the RO with any evidence showing that his in-service injury caused him to have a permanent disability. Even though his knee is still painful, Joe is busy raising his new family, and working, so he moves on with life, and does not appeal. By June 2002, however, his knee is getting really painful. He goes to the doctor who X-Rays him, and learns that he may need a knee replacement in a few years. Joe decides to file a new claim in October 2002. This time, he gives the RO the X-Ray reports, and his claim for service connection is granted in a decision in January 2005. Because Joe’s claim was denied in 1972, and he did not appeal, that decision became final. Under the law, Joe’s benefits can’t be paid prior to the date he filed his claim to reopen in October 2002. This means that even though Joe’s disability has been there since service, and even though he tried to get the benefits in 1969, he can only receive benefits back to October 2002.
(3) Let’s change things around a bit. This time, when Joe gets out of service, he is too busy going to school, and raising his family, to file a claim. Not to mention that he’s not the type to complain about pain or go to the doctor. He deals with the pain in his knee for many years, but it’s so bad by June 2002, that he finally goes to the doctor. He learns that he has severe arthritis and may need to have his knee replaced. Joe’s buddy encourages him ask the VA for compensation, and he files a claim for service connection in October 2002. When he wins his claim three years later, his benefits are awarded retroactively to October 2002, not back to when he left service, like Joe hoped. The reason is that because Joe didn’t file his first claim for service connection until October 2002, it would be illegal for VA to pay him before his date of claim.
Here’s the text of the law and VA’s regulations:
38 U.S.C. § 5110(a) Unless specifically provided otherwise in this chapter [38 USCS §§ 5100 et seq.], the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.
38 U.S.C. § 5110(b) (1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.
38 C.F.R. § 3.400: Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.
38 C.F.R. § 3.400(b)(ii)(B)(2) Direct service connection (§ 3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated.