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

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

In late May 2010, VA Secretary Eric Shinseki prepared a letter to the leaders of the House and Senate requesting that his draft legislation entitled “Veterans Benefit Programs Improvement Act of 2010” be considered and enacted. The purpose of the draft bill is to improve (1) VA’s compensation and pension programs, (2) the timeliness and efficiency of VA’s adjudication of claims and appeals, (3) VA’s loan guaranty system, (4) vocational rehabilitation and education benefits, and (5) Veterans Group Life Insurance participants. Details of the particulars with respect to the suggested changes and reasons for them can be viewed at: http://www.vawatchdog.org/10/nf10/nfmay10/may10files/SecyLegislation.pdf
While it is clear that many of the proposed changes appear good for veterans, there are several items that have surfaced that may negatively impact the legal representation of veterans.
Under Title II, Section 206, which concerns decisions of the Board of Veterans’ Appeals, the legal standard of what the Board must include in its decisions may change. VA is concerned that more than half of the claims appealed to the Veterans Court result in a remand back to the Board due to an inadequate statement of reasons or bases. The comments to the proposed change note, among others, that while some remands are necessary, many remands based on reasons or bases do not benefit the claimant. Therefore, changing the statutory language from reasons or bases to “a plausible statement of the reasons for the Board’s ultimate findings of fact and conclusions of law” would reduce the number of remands.
Under Title II, Section 207, which addresses the definition of prevailing party status for purposes of entitlement to Equal Access to Justice Act, i.e., reimbursement of attorney fees, the proposed language is alarming. If the language is adopted, attorneys who represent veterans before the United States Court of Appeals for Veterans Claims would only be eligible for reimbursement of attorney fees if, after securing a remand or reversal at the appellate level, the veteran ultimately is awarded a monetary or other benefit at the administrative level. The language further allows the Court and the Secretary to prescribe rules that would allow the Court to retain control over all remands, and only upon a showing that the veteran was awarded benefits, could the attorney be entitled to reimbursement of fees.
If either of these proposed changes become law, it is likely to negatively impact the number of attorneys willing to represent veterans at the court level. If attorneys know that the chances of recovering attorney fees is limited and that it will be that much more difficult to secure remands, the Veterans Court will likely see many more unrepresented claimants.

David J Lowenstein FAQs, Veterans Benefits Claims, Veterans Benefits Legislation Veterans Benefits Claims, Veterans Benefits Legislation, 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

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