Veterans Benefits Blog

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.

Daniel G Krasnegor Agent Orange, FAQs, Veterans Benefits Claims Agent Orange, veterans disability benefits

VA has proposed extending presumptive service connection to veterans who have served in Southwest Asia Theater of Operation on or after September 19, 2001 and who develop one of the following infectious diseases:
1. Brucellosis
2. Campylobacter jejuni
3. Coxiella burnetii (Q fever)
4. Malaria
5. Mycobacterium tuberculosis
6. Nontyphoid Salmonella
7. Shigella
8. Visceral leishmaniasis
9. West Nile Virus.
With the exception of Malaria, Mycobacterium tuberculosis, and Visceral leishmaniasis, the infectious disease must have become manifest to a degree of 10 percent or more within one year from the date of separation from a qualifying period of service.
Malaria must have become manifested to a degree of 10 percent of more within one year from the separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service. There is no time limit for Mycobaterium tuberculosis or Visceral leishmaniasis.
If the regulation passes, these diseases will be the first diagnosed illnesses entitled to presumptive service connection associated with service in the Persian Gulf.

Nancy L Foti Veterans Benefits Claims Persian Gulf and Afghanistan veterans, presumptive service connection, veterans disability benefits

President Obama is scheduled to sign the Caregivers and Veterans Omnibus Health Services Act of 2010 today, May 5, 2010.

The law addresses a number of issues related to veterans’ health care, including assistance to family caregivers of disabled veterans, expanded health care services for women veterans, greater outreach to rural veterans, and enhancements to VA medical services.

For additional information about the bill, including the full text and a summary, visit http://www.govtrack.us/congress/bill.xpd?bill=s111-1963.

Sandra W Wischow Veterans Benefits Claims, veterans health care veterans disability benefits, veterans health care, Veterans legislation

Many veterans who served in Operations Desert Shield and Desert Storm are suffering from a range of physical disabilities, chronic ailments, and unexplained illnesses which may be due to an “undiagnosed illness.” Thousands of veterans who served in the Gulf War have come down with a pattern of symptoms that include rashes, joint and muscle pain, sleep issues, and gastrointestinal problems. However the cause of these problems remains unclear.

What is clear is that many Gulf War veterans are suffering from very real physical problems, and they are concerned along with their families about the long and short term consequences of these health problems. Many of these veterans suffering from what’s commonly called “Gulf War illness” have turned to the Department of Veterans Affairs (“VA”) for assistance. Congress has recognized, however, that “many ill Gulf veterans report having been told when they sought medical treatment that their ailments were ‘all in their heads.’” Report of the Special Investigation Unit of Gulf War Illness, 105th Congress. See http://www1.va.gov/rac-gwvi/docs/USSenate_ReportoftheSIUonGulfWarIllnesses_ReportNo105-39PartI_1998.pdf

The Washington Post has recently reported that in an effort to change this attitude on the part of VA, Secretary of Veterans Affairs, Eric K. Shinseki, has confirmed that VA will be re-examining the disability claims of what could be thousands of Gulf War veterans suffering from ailments. VA does not have an estimate of the number of veterans who may be affected, but it could be in the thousands. See http://www.washingtonpost.com/wp-dyn/content/article/2010/02/25/AR2010022506625.htmlVA also plans to improve training for medical staff working with Gulf War veterans and a review of “Gulf War illness” regulations to ensure that veterans receive the compensation they are entitled to by law.

Nancy L Foti Veterans Benefits Claims Gulf War veterans, Undiagnosed Illnesses, veterans disability benefits

     Whether a veteran claimant is seeking to establish service connection for a disability or obtain an increase in rating, a medical assessment by a doctor or other health care provider will almost always be vital. To establish service connection, a claimant needs to show a causal relationship between his or her current disability and some event or manifestation of disease in service, which, except in very obvious cases, will have to be established by someone with medical expertise. Likewise, evaluation of the degree of impairment most often requires a doctor’s input.

   Many claims fail at VA initially because the necessary medical assessment is not obtained. Veterans seeking benefits can greatly shorten the agony of a prolonged involvement with VA by dealing with this need early on. Two challenges arise.
   One is locating a doctor willing to provide the assessment. While doctors can be engaged to provide “independent medical opinions,” this is a service that must be paid for by the veteran and is usually rather costly. By far the best option for obtaining an assessment is usually the veteran’s treating physician. Such a doctor will be familiar with the veteran’s condition and will usually want to be helpful to his or her patients. This circumstance may be complicated if the veteran receives her health care from a VA facility. There used to be a VA policy that actually encouraged VA doctors to assist veterans with supporting their claims via medical opinions. That policy was abandoned by VA. But there is no prohibition against VA doctors providing information, including expert assessment, to veterans pursuing claims; some VA doctors seem to believe, mistakenly, that there is such a prohibition.
   If a veteran receives care from a non-VA doctor, or is able to convince his VA doctor to provide help, what is needed is a statement from the doctor in writing that addresses the issue in a way that will be useful in supporting the claim. (The assurance that a written statement will suffice and no live or deposition testimony will be necessary, is often a selling point for doctors.) Again, much waste of time and stress can be avoided if the medical opinion is done right to begin with. Many statements from private doctors are of little help because the doctors do not understand the VA system and do not provide the crucial information.
   Doctors do not think like lawyers, and the claim process is a legal system. One important thing to get straight with the doctor is the VA standard of proof: many doctors, if they’ve had any acquaintance with the legal system at all, will be comfortable stating opinions only to a “reasonable degree of medical certainty.” This is commonly required in civil litigation, but it is not the basis for establishing a fact in a veteran claim. Veterans need only demonstrate that something is “as likely as not” true, so doctors need to understand that if they are comfortable saying that something is just as likely as unlikely, that is enough to support a claim.
   It is also important to have the doctor include the necessary information to make the opinion valuable. She should list or describe the medical data relied on: the records reviewed, examinations performed, and tests administered. She must then provide not only a bald conclusion such as “the arthritis is related to the injury in service,” but also a reason for the conclusion, such as: “arthritis can result from traumatic injury of the type the veteran received in service, and there are no other obvious causes in the medical history, therefore it is as likely as not that his arthritis is related to service.”
   Securing a solid medical opinion can often win a case outright and, at the very least, it can make it more difficult for VA to deny, which is sometimes the essence of the fight.

David E Boelzner FAQs, Veterans Benefits Claims medical opinions, Veterans Benefits Claims, veterans disability benefits

In December 2008, a class action lawsuit was filed in Sabo v. United States on behalf of veterans who (1) served in Operation Iraqi Freedom or Operation Enduring Freedom, (2) were diagnosed with post-traumatic stress disorder, and (3) were discharged from service with ratings of less than 50 percent.
Recently the attorneys representing the veterans and the government reached an agreement, wherein at least 4,300 members of the class action will be entitled to an expeditious review of their disability evaluations as well as a correction of their past and future benefits.

The disability ratings are essential to veterans suffering from post-traumatic stress disorder. A permanent disability rating of 30 percent or higher entitles a veteran to monthly disability benefits for the remainder of the veteran’s life, to free health care for the veteran and his or her spouse for life, and to free health care for their minor children.

Veterans who are eligible for such review are those who were discharged from service between December 17, 2002, and October 14, 2008 and were determined unfit to serve in part due to a diagnosis of post-traumatic stress disorder.

While notices have been mailed to roughly 4,300 veterans, if you did not receive a notice and believe you are a veteran who fits the criteria discussion above, you have until July 24, 2010 to “opt-in” to the class action lawsuit. You should go to www.ptsdlawsuit.com to obtain additional information regarding the lawsuit and information on how to become a member of the lawsuit.

David J Lowenstein PTSD, Veterans Benefits Claims PTSD, veterans disability benefits

If you missed the 60 Minutes segment on VA disability claims processing, you can watch it online, at cbs.com.
http://www.cbs.com/primetime/60_minutes/

Sandra W Wischow Veterans Benefits Claims Veterans Benefits Claims, veterans disability benefits

On Sunday, January 3, at 7 PM, 60 Minutes will run a segment on delays at the VA in claims processing, titled “Delay, Deny and Hope That I Die.” You can see a preview of the segment at the CBS website, http://www.cbsnews.com/sections/60minutes/main3415.shtml

Sandra W Wischow Veterans Benefits Claims Veterans Benefits Claims, Veterans Disability claims

You can obtain information from the Senate Veterans Affairs Committee page at
http://veterans.senate.gov/

At that page, click on the tab that says “VA Benefits Claims Process.” That provides information on the process itself, as well as information about the Senators who serve on the Veterans Affairs Committee and how to contact them for assistance.

The House of Representatives Veterans Affairs Committee page also includes a great deal of information about VA, benefits available, and how to get help with your claim. That page can be accessed at
http://veterans.house.gov/

Sandra W Wischow Veterans Benefits Claims Veterans Benefits Claims, veterans disability benefits

In a previous blog posting I discussed evidence in veterans cases, including a feature unique to this system, the rule that if evidence is approximately balanced on any given point, the veteran claimant is supposed to be given the benefit of the doubt. In actual practice this favorable rule is not applied because VA determines that the evidence is not balanced. This posting will discuss how that occurs and some hints about developing your evidence to avoid some of the most common reasons for losing claims.
How VA gets around the benefit-of-the-doubt rule
The equipoise standard in veterans cases seems like a highly favorable factor: all one has to do to win is show it’s 50-50. The rub comes in the fact that weighing evidence has a large component of subjective judgment, and by finding some items of evidence more believable than others, VA can conclude that the evidence is not balanced but is one-sided against the claim. In the example in the previous posting about a soldier fall and the immediate treatment records not including any mention of a head injury, the decision-maker might choose to believe that triage doctors are very thorough in noting any symptoms complained of, so the omission of any mention of a head injury would weigh very heavily in this decision-maker’s evaluation of the evidence. To a certain degree the decision-maker is permitted to make these evaluations and the Veterans Court will not disturb the agency’s conclusions if they are plausible.
On the other hand, VA quite often brings completely unwarranted assumptions into its weighing of evidence, such as the notion that if there are no complaints of symptoms or treatment for a condition in medical records, the veteran had no such symptoms or condition; the notion is based on the assumption that all patients always consult a doctor for every condition or complaint they have. It’s not true and it’s not in the evidence, but VA will assume it anyway. These sorts of erroneous evaluations of evidence are often the basis for appeal.
Good evidence
Presenting strong evidence to support a claim is vital to its success. The best way to accomplish this is, first, to know the key facts necessary to prove a claim, what lawyers call “elements.” The three elements of a service-connection claim are (1) an incident in service, i.e. an injury or first manifestation of a medical condition, (2) a current recognized disability, and (3) a causal relation between (1) and (2), i.e. the disability is the same condition or related to the incident in service in some way.
VA is required to send notice to all claimants of what must be proven; it often obscures this information in a blizzard of legal provisions or misleading statements about the duty to assist, but somewhere in the notice letter sent after the claim is filed will usually be a listing of the elements. Ask yourself if you have submitted or can obtain convincing information on each of those elements. (This inquiry can also serve to prompt the threshold question central to any claim: is there a provable entitlement to the benefit sought? VA does not award benefits based on sympathy or veteran hardship; it does not care legally whether you are in financial straits. It can only award based on evidence.)
Especially bear in mind that, whether your claim is for service connection or for increase of rating, it requires medical expert evidence to establish one of the key facts: you must show causal relation with an incident in service for a service connection claim, and you must show degree of severity of the condition in an increased rating claim. If you don’t have such evidence, you need to get it, either through treating physicians or perhaps by pressing VA to get a medical opinion. Having evidence that supports each of the necessary elements is the most important factor in developing a successful claim.
What is good evidence? Anything pertinent to an issue of the claim, that is, one of the crucial facts that must be proven, is relevant evidence and must be considered, but certain qualities affect the weight given to evidence. A few hints:
Direct personal knowledge. Hearsay (something somebody else told you), which is a concern in other types of legal cases, is not strictly taboo in veterans cases, but evidence is unquestionably stronger if it comes from someone with direct personal knowledge of the fact in question. A veteran can, for example, say that he received a certain diagnosis for a condition, but much stronger, more convincing evidence would be the actual medical record in which the diagnosis was stated or a statement from the doctor who made it.
Expert versus lay testimony. Related to the last point is that those to provide evidence must be “competent” to do so. This is a legal term that basically means, possessed of the knowledge, training or experience to reliably say what is being said. Thus, a family member could be perfectly competent to say that a veteran had a limp when she returned from service, but unless that family member is a doctor, he is not competent to say that the veteran had a hip dislocation; the latter requires medical training and judgment. Don’t overlook, though, the capability of lay persons to competently attest to what they can clearly see or perceive.
Corroboration. Although it is supposed to be neutral, VA in fact views anything a claimant says as suspect, because there is always the possibility that the claimant is fabricating or exaggerating something in order to get money from the government. This factor can be offset through corroboration: records or other witnesses who can verify what the claimant is saying. Even a writing made by a claimant can serve to corroborate, if the record was made contemporaneously with the event, e.g. jotting down immediately afterward what happened during a medical exam or an accident. If reliance must be placed solely on a claimant’s recollection, it can be strengthened through detail that increases the plausibility of the story. Needless to say, any hint of falsehood or inaccuracy seriously undermines the value of evidence.
By paying careful attention to whether you have evidence on each of the key facts, and observing the preceding tips for making that evidence as persuasive as possible, you can significantly improve your chances of VA making a favorable decision initially, but even if it doesn’t, you will have vastly improved your chances of a successful appeal and eventual favorable decision.

David E Boelzner FAQs, Veterans Benefits Claims veterans disability benefits