Veterans Benefits Blog

Even if a particular condition is not on VA’s “presumptive list” as a condition caused by Agent Orange exposure, a veteran can present medical evidence to show that his or her individual condition is “as likely as not” related to that exposure.

A new VA study suggests a link between Agent Orange exposure and kidney cancer, a condition that is not on VA’s “presumptive list.” While this is a limited study, this type of evidence may be helpful in establishing that this exposure is “as likely as not” related to kidney cancer, and can provide support for an opinion by your doctor that the two are related.

For more about the study, see http://health.usnews.com/health-news/family-health/cancer/articles/2011/05/14/agent-orange-linked-to-kidney-cancer-study

Sandra W Wischow Agent Orange, Veterans Benefits Claims Agent Orange, presumptive service connection, Veterans Benefits Claims

The Senate Veterans’ Affairs Committee chairwoman is set to introduce on Wednesday, May 11, 2011, a bill that would require separating service members to attend the Transition Assistance Program, more frequently known amongst service members and veterans as “TAPs.” As it stands today, the TAPs class is a voluntary program meant to assist service members in achieving employment post military service. The course currently offers guidance in resumé writing, job-search techniques and interview preparation for departing Enlisted and Officer service men and women.

TAPs is available to all departing service members, discharged other than dishonorably. Unfortunately, most service members are unaware of this opportunity. Sen. Patty Murray, D-Wash., is proposing to make the program mandatory. It appears the “Hiring Heroes” bill would maintain the same TAPs course format; there is no indication that the chairwoman is seeking any changes to what is offered. A substantial change to the program in general, however, is the government involvement in follow up.

Sen. Murray is critical of the government’s lack of assistance once service men and women separate from active duty. While the TAPs program is a step in the right direction, there is no follow up to continue to assist the veteran. It is important to note that there are programs available to assist veterans in obtaining employment after they have separated, if they ask for assistance. But again, according to Sen. Murray, many veterans are unaware of these services. The Hiring Heroes bill would require the government to contact veterans and notify them of these services while following up on their progress.

Additional programs would be available for disabled veterans as well, providing an additional 24 months of vocational rehabilitation and employment services, if the bill is passed.

To find out more information about the proposed bill, visit: http://murray.senate.gov/public/index.cfm?a=Files.Serve&File_id=0ea542fe-c8c9-4d9a-ae4d-bc67ffa0f909To find out more information about current Vocational Rehabilitation and Employment services, visit: http://www.vba.va.gov/bln/vre/

Jessica Mast Flage Education Benefits, FAQs FAQs, Veterans Benefits Legislation, Veterans legislation

Under VA regulations, a veteran who was exposed to herbicides in service and develops a disease which is listed on the “presumptive list” is presumed to have developed the disease because of his or her exposure to herbicides. For a list of these conditions, see http://www.publichealth.va.gov/exposures/agentorange/diseases.asp.
Generally, VA refers to this as exposure to Agent Orange, although there were also other herbicides used with different names. If your condition is on the list, establishing service connection is a relatively straightforward process.

Suppose your condition is not on the presumptive list? Unfortunately, VA will often deny service connection, without much more explanation than that the disability is not included on the presumptive list. While the Regional Office may stop there, that may not be the end of your claim and you should not necessarily accept this as a final answer.

In a case called Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994), the Federal Circuit Court of Appeals determined that even if a particular condition was not included on the presumptive list for radiation exposure, the veteran could still establish service connection independently – that is, by submitting evidence that his or her disability was as likely as not related to radiation exposure in service. This rule has also been applied to claims involving Agent Orange.

So, let’s suppose you served in Vietnam. You are presumed to have been exposed to Agent Orange, so an “event in service” is established. If you now have one of the diseases on the presumptive list (for example, prostate cancer or diabetes), service connection is relatively simple to establish.

Suppose that instead you have one of the forms of leukemia that is not listed on the presumptive list, such as CML or AML? You can still establish service connection with a medical opinion that the leukemia was “as likely as not” caused by your exposure to Agent Orange. This is certainly a more difficult process than establishing service connection for a presumptive condition, but it can be done.

Bottom line? If your claim is denied because your condition is not on the presumptive list, but there is medical evidence of a link between your condition and Agent Orange, you should file a notice of disagreement and continue to pursue your claim.

The missing element in your claim is nexus – a connection between exposure to Agent Orange and your current illness. You’ll need a medical opinion to establish this connection, so you should discuss this with your doctor. It will help him or her if you do some research yourself – check the literature, to see if you can find any studies linking your condition to Agent Orange, or, more generally, to dioxin. If you provide study data to your doctor, he or she will be better able to provide a solid opinion linking your condition to Agent Orange exposure.

A second thing to look at is whether there is medical evidence linking your condition to benzene. Agent Orange was typically mixed with diesel fuel to distribute it, so exposure to Agent Orange generally would include exposure to benzene. There is also a chemical link between dioxin and benzene. So, don’t limit your research to dioxin – look for medical evidence linking your condition to benzene as well.

Presumptive service connection is not the only way to establish service connection for conditions caused by Agent Orange exposure. You’ll have a harder time establishing the connection for conditions that are not on the presumptive list, but with a strong medical opinion and supporting medical literature, it can be done.

Sandra W Wischow Agent Orange, Veterans Benefits Claims Agent Orange, Gulf War veterans, Persian Gulf and Afghanistan veterans, presumptive service connection, VA claims, Veterans Benefits Claims, veterans disability benefits

If Congress cannot reach an agreement on the 2011 budget by midnight tonight, April 8, 2011, the government will shut down. While many questions and issues remain unknown as to how a shutdown will truly impact the nation, the Department of Veterans Affairs just issued a field guide explaining what services will and will not be impacted by a shutdown.

Here are some highlights:

VA hospitals and clinics will remain open and fully functional. You should have no problem getting your prescription, and can attend your scheduled appointment for treatment or go to the emergency room.

Payments of disability (service-connected) and pension (non-service-connected) will continue as usual.

Processing of claims for benefits will continue, but may be slowed down significantly.

Many people at the VA Regional Offices and the Board of Veterans’ Appeals will not be working—phone calls to these offices will not be answered, and it is unlikely that decisions on claims will be made.

For all the details, click on the following link http://va.gov/FieldGuide_Flyer_Final_6261.pdf

David J Lowenstein FAQs, Veterans Benefits Claims, veterans health care Allen & Filetti, FAQs, Veterans Benefits Claims, veterans health care

The United States Supreme Court does not often hear cases from the veterans claims system, but it recently issued a decision in Henderson v. Shinseki that was favorable to veterans, though the claimant in this case is not completely out of the woods.

All appellate systems have prescribed periods for appealing to a higher court. In many instances the filing of a document to initiate the appeal, a notice of appeal (NOA), is “jurisdictional,” meaning that failure to file it properly deprives the court of the power to hear the appeal. The issue for the Supreme Court was whether Mr. Henderson’s claim had suffered this fatal blow when, because of a paranoid schizophrenic episode, he missed the filing deadline for his appeal to the Veterans Court. That court and the Federal Circuit above it held that this failure required dismissal of the claim.

The Supreme Court reversed, however. It recognized that veterans’ appeals are part of a unique administrative scheme, and it said that the statute containing the appeal deadline indicated Congressional concern for veterans, such that Congress would not have intended the deadline to be jurisdictional.

The high court noted that the deadline was an important rule, however, and it sent the case back for further consideration as to whether there was any exception that should be applied. There is a principle called “equitable tolling” that may allow the court to hear the appeal if it is found that ultimate fairness and justice so requires.

While it is a victory for veterans that the court allowed for the possibility of some exceptions to the strict deadline, there is no assurance in advance that an exception would apply. This reinforces the crucial importance of filing a notice of appeal on time and in the proper place.

To appeal to the Veterans Court from the agency (Board of Veterans’ Appeals), the notice must be filed within 120 days of the Board’s decision and it is filed with (sent to) the Veterans Court itself, not the agency. To appeal from the Veterans Court to the Federal Circuit, one has 60 days from the entry of judgment by the Veterans Court (usually about 21-22 days after the decision), but the filing is made with the Veterans Court, not the Federal Circuit.

David E Boelzner FAQs, Veterans Benefits Claims FAQs, filing a claim, Veterans Benefits Claims, Veterans Court, veterans disability benefits

Recently, the U.S. House of Representatives passed a budget amendment that, if enacted into law, would essentially invoke a seven-month moratorium on payment of all legal fees by the government to those who successfully litigate a matter against it. Such payments are currently authorized under the Equal Access to Justice Act (EAJA).

In 1980, Congress established EAJA in response to its concern that people may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in suing the government to vindicate their rights. Congress expressly made payment of legal fees under the EAJA available to veterans and their dependents who hire private attorneys to represent them at the U.S. Court of Appeals for Veterans Claims and if they win the case against the government in that court.

If the budget amendment becomes law, EAJA fees would be temporarily suspended. Because there does not appear to be a distinction between those people who would be affected by the broad moratorium, veterans and their dependents would likely suffer because attorneys rely on reimbursement of reasonable attorney fees under EAJA in order to provide low or no cost services. If the attorneys are not awarded attorney fees in successful appeals, it is unlikely that they would agree to represent veterans and their dependents before the court. This will negatively affect those who have been unfairly denied benefits by VA and need the expertise of an attorney skilled in the area of veteran’s benefits law to litigate the matter at the Court.

To see the EAJA deliberations, check out http://www.scribd.com/doc/49535676/EAJA-Deliberations

David J Lowenstein Veterans Benefits Claims, Veterans Benefits Legislation Veterans Benefits Claims, veterans disability benefits, Veterans Disability claims, Veterans legislation

Many veterans know of the existence of VA’s “benefit of the doubt” doctrine, but question how the doctrine is applied in a case.

I. What is the “benefit of the doubt” doctrine?

VA claimants have the burden to prove their claim to the VA, that is, when making a person makes a claim to VA that person has the responsibility to present evidence that will establish entitlement to the benefits that person is seeking. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA will give the “benefit of the doubt” to the claimant.” 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2010); see Gilbert v. Derwinski, 1 Vet. App. 53, 55 (1990) (the benefit of the doubt standard is similar to the sandlot baseball rule that the tie goes to the runner).

II. Does this mean the VA has to always give me the benefit of the doubt and therefore believe all of the evidence I submit to support my claim?

No, as the adjudicator of the claim, VA has the duty to weigh the evidence and determine whether that evidence if probative or not. Sometimes VA will find some evidence has more probative weight than other pieces of evidence. The “benefit of the doubt” doctrine only comes into play when two pieces of evidence are of equal weight, in that instance, VA must give the favorable evidence the “benefit of the doubt.” For example, let’s say that a veteran is trying to establish service connection for a right knee condition that developed due to an in-service fall. VA affords him an examination where the examiner reviews his claims file and determines that the condition is not related to service. The veteran then obtains a medical opinion from his doctor that is also based on a complete review of his claims file, and provides a thorough medical opinion and rationale as to why his right knee condition was caused by service. In that instance, having all things be equal between both examinations, VA should give the “benefit of doubt” to the favorable medical opinion and thus probably grant the claim.

Here’s one way to look at when the benefit of the doubt applies and when it doesn’t.

Let’s say that Joe Veteran is trying to get service connection for the arthritis in his back. Joe had an accident in service in 1968 when he fell out of the back of a moving jeep, hitting his low back. Now, 40 years later, he has arthritis in his lumbar spine and believes that his low back problem was caused by the Jeep accident. In order to be service-connected, VA rules require that there be a medical opinion that relates the currently diagnosed disability to the Jeep accident. Here, Joe gave his service medical records to his doctor who wrote an opinion saying that the current arthritis is likely due the in-service accident. VA then gets its own opinion; but its doctor says that the back problem is more likely caused by old age. In this case, there are two pieces of evidence both addressing the same question—was Joe’s Jeep accident the cause of the arthritis 40 years later. If there’s nothing about either opinion that makes it better than the other, VA is required to give the benefit of the doubt to the veteran and accept the favorable opinion.

Now, let’s change the facts around. In this case, Joe has explained that he believes the Jeep accident caused the current back problems, saying that this was the only injury he ever had to his back. In this case, however, Joe doesn’t get a medical opinion from his doctor and VA doesn’t get one either. Here, there’s no medical opinion at all answering the question about whether the arthritis was caused by the Jeep accident. Because there’s no favorable opinion, there’s just not enough evidence to allow VA to grant the claim, and no evidence to which the benefit of the doubt rule can apply.

Nancy L Foti FAQs, Uncategorized, Veterans Benefits Claims Veterans Benefits Claims, veterans disability benefits

Similar to the Social Security Administration’s announcement that no cost-of-living adjustments (COLA) will be made to Social Security benefits in 2011, Veterans, their families and survivors will also not see a COLA in 2011. The lack of a COLA increase applies to compensation and pension benefits from the Department of Veterans Affairs.

David J Lowenstein FAQs veterans disability benefits, Veterans Disability claims

A key part of VA benefits for many veterans is access to free VA medical care for any condition that is service connected or, for certain veterans, additional health care for additional disabilities for themselves and health care for spouses and dependents.

On January 6, 2011, VA released its 2010 Veterans Health Administration Facility Quality and Safety Report. In the lengthy report, VA discusses the quality of the facilities, staffing, and care provided at each VA medical center and across the entire VA health system. It includes many metrics that can be used to compare the care provided from one medical center to another, including treatment for specific conditions, such as diabetes mellitus, and overall satisfaction with both inpatient and outpatient care.

The report card can be found at http://www1.va.gov/health/HospitalReportCard.asp

Todd M Wesche Veterans Benefits Claims, veterans health care Add new tag

Last month the Department of Veterans Affairs (VA) announced the testing of a new procedure to obtain veterans’ medical records more quickly. Secretary Eric K. Shinseki stated in a news release that the VA is exploring a procedure that employs a private contractor to obtain veterans’ private medical records and transmit them to the offices processing the veterans’ claims. But, how does adding yet another individual into the chain of claims processing achieve the goal of moving a veteran’s claim along more quickly?

The Secretary says he hopes these new procedures will decrease the time it takes to obtain a veteran’s private medical records by one month. Currently, on average, it takes private medical records approximately 40 days to reach the VA. The private contractor’s sole scope of work is to contact private physicians, obtain the records, scan them into a computerized system, and transmit them to the VA office processing the claim.

Currently, VA employees are tasked with those responsibilities, along with reviewing claims files, obtaining government agency records, and many other functions. The hope is that the private contractor will relieve VA employees of the medical records chore to enable them to use their time processing claims. The Secretary’s aim is to decrease the time it takes to decide a claim by “freeing up” the VA employees and by obtaining private medical records more quickly.

How can you help make the process move faster on your end?

When filing a claim for Veterans Benefits, the VA is more than likely going to review your private medical records. You can help by obtaining these records on your own. Your physician will likely require you to fill-out and sign some sort of records release. The faster you sign and return the release form permitting the physician to give your records to another individual (or organization like the VA), the faster the VA will receive your records and decide your claim. Also, if you obtain your own records and provide them to VA, make sure you tell VA that you’ve already gotten all the records, so that VA won’t delay your case by requesting the records again.

To read the entire news release, please follow this link:

http://www1.va.gov/opa/pressrel/pressrelease.cfm?id=2015

Jessica Mast Flage FAQs, Veterans Benefits Claims VA claims, Veterans Benefits Legislation, veterans disability benefits, Veterans Disability claims