Intro to VA Law Part 1 NOSSCR 10.2014

ELEMENTS OF A SERVICE-CONNECTION CLAIM, AND THE TYPE OF EVIDENCE

NEEDED FOR EACH ELEMENT

Presenters:Jeff Bunten and Katrina Eagle,Attorneys at Law

NOSSCR Fall Conference

Las Vegas, NV – October 10, 2014

NOSSCR.CNF.IO

“Many unfortunate and meritorious veterans, whom

Congress have justly thought proper objects of immediate relief, may suffer great distress, even by a short delay, and may be utterly ruined, by a long one.”

Hayburn’s CaseHayburn’s Case, , 2 U.S. 409 (1792)2 U.S. 409 (1792)

Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference

The Real Deal

There is nothing basic about veterans law

VA’s backlog is epic and growingVA’s backlog is epic and growing

VA makes mistakes but if you don’t know the proper VA makes mistakes but if you don’t know the proper laws and regs, how will you know?laws and regs, how will you know?


How Does the VA Define a “Veteran”?For VA purposes, the definition of a veteran

is “a person who served in the active military, naval or air services, and who was discharged or released under conditions other than dishonorable.” 38 U.S.C. § 101(2), 38 CFR § 3.1(d) (2011).

How to tell? Start by looking at the veteran’s DD-214.

REPRESENTING THE MILITARY VETERAN


Compensation for Service-Connected DisabilityWhat does “service-connection” mean?Compare: a battlefield wound to knee and

knee injury playing football during active service: BOTH may be determined to be service-connected conditions



Compensation for Service-Connected Disability

VA compensation is paid in amounts based on the severity of the medical condition, in 10-percent increments from zero to 100 percent. The disability rating assigned to a veteran’s medical condition is based on its impact on, or interference with, the veteran’s ability to obtain and maintain gainful employment.



Current Service-Connected Disability Compensation Rates (as of 12/2013):

Disability Rating Monthly Annually

10 % $130 $1,560

20 % $258 $3,096

30 % $400 $4,800

40 % $577 $6,924

50 % $822 $9,864

60 % $1,041 $12,492

70 % $1,312 $15,744

80 % $1,525 $18,300

90 % $1,714 $20,568

100 % $2,858 $34,296


Compensation for Service-Connected Disability 3 Basic Requirements for Eligibility

Medical Evidence of CURRENT Disability

Evidence of a Disease, Injury or Event Coincident with Military Service

Nexus between the Current Disability and the In-Service Disease, Injury or Event



Compensation for Service-Connected Disability “Current Disability” includes a DIAGNOSIS by a

medical professional If the veteran does not yet have the medical

documentation of a diagnosed disability, still proceed with assisting the veteran in filing a claim for service-connection, so that the earliest possible EFFECTIVE DATE is established.

“Currently” means on or after date of VA application for benefits



Compensation for Service-Connected Disability Evidence of an In-Service Disease, Injury, or Event

Review and Scrutinize the Veteran’s Service Medical Records (SMR’s)

Be sure to understand the medical condition AND its symptoms



Compensation for Service-Connected Disability Evidence of an In-Service Disease, Injury, or Event

VA places GREAT WEIGHT on contents of veteran’s military personnel and medical records

VA is required to consider lay evidence of in-service injury, but lack of confirmation in SMR’s can be weighed against the lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)

There are relaxed evidentiary standards for combat veterans. See 38 U.S.C. § 1154



Compensation for Service-Connected Disability Requirement of a Nexus (link) b/n Current

Disability and In-Service Disease, Injury or Event Medical opinion re Nexus “as likely as not....”; i.e.,

physician need not be absolutely certain of the nexus Note: the VA will reject medical opinions as having

little to no probative value if the opinion is mere speculation, or does not reflect a comprehensive review of the historical medical records.

No “Treating Physician Rule” in the VA claims process. BUT, sometimes, no link required because…



MANY Medical Conditions Eligible for Presumptive S/C, such as:

1. Tropical Diseases

2. Former POW’s

3. Radiogenic Diseases

4. Herbicide / Agent Orange Exposure

5. Persian Gulf War

6. Chronic Diseases aka Continuity of Symptomotology

See 38 U.S.C. §1112; 38 CFR §3.309(a)-(e)



Re Presumptive S/C Claims: To successfully obtain presumptive s/c, a

condition must simply manifest within presumptive period; IT NEED NOT BE FORMALLY DIAGNOSED. See 38 U.S.C. §1112; 38 CFR §3.307(c)

ALS per recent VA reg – see 38 CFR § 3.318 Parkinson’s, IHD, and B Cell Leukemia were

added in 2010 as related to AO exposure

If all criteria for Pres. S/C cannot be met, then pursue DIRECT S/C claim

E.g., exposed to AO, but not in Vietnam



Establishing Entitlement to . . . Secondary Service-Connection

When a veteran has a service-connected condition, and later develops another medical condition that is directly related to the service-connected condition, then the second condition will also qualify as a service-connected condition, eligible for compensation.No time constraints b/n original and secondary condition manifestations.

Example: Diabetes Mellitus (Type II Diabetes)



Key Concepts Integral to a Service-Connection Claim:

Duty to Assist: VA’s statutory duty is very broad, and includes securing a medical evaluation and, or medical opinion, obtaining VA and other govt records, private Rx records. See 38 U.S.C.S. § 5103A

Even after RO denies claim, additional evidence can be submitted for consideration.



Key Concepts Integral to a Service-Connection Claim:

The VA also has a duty to give a sympathetic reading to a veteran's filings and adjudicate all potential claims reasonably raised by the evidence of record.

In addition, the VA is required to consider all legal theories raised by the record that may lead to a grant of the benefits requested, regardless of whether they are specifically raised by the claimant, and consider the benefit of the doubt rule.



Key Concepts Integral to a Service-Connection Claim: Presumption of Soundness: the veteran will be

presumed to have been in good health when he or she entered the service unless there is clear evidence to the contrary. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).

Presumption of Aggravation: In order to rebut POS, VA must show condition EPTS AND was not aggravated beyond its natural progression as a result of service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).



When the veteran needs evidence to show in-service injury, disease or event:

1.Military Personnel Files

2.Military Medical Records

3.Other Types of Military Records That May Support Claim

4.Lost or Destroyed Records


When the veteran needs medical-nexus evidence:

1.Veteran’s Own Treating Physician

2.Independent Medical Evaluation and, or Opinion

3.If evidence in claim triggers VA’s duty to provide VAX, request one – see 38 C.F.R. 3.159(c). It is a “low threshold” of evidence that triggers VA’s duty.


Tips re Veterans Law Practice:1. The very first question to ask a potential client: “do

they have a current medical condition?” Then “why do you think it’s related to your military service?”

2. Be up-front and direct with the veteran – you may be the first to do so! Intentional or not, the veteran is swamped in letters and forms from the VA but is never told the basic facts re his case and what is needed for it to be granted.

3. Know the veteran’s VA file WELL! Be sure to note all pending and potential deadlines.

4. Research and understand the medical condition at the crux of the veteran’s claim.



Key Resources: NOVA (National Organization of Veterans

Advocates): www vetadvocates . com Veterans Benefits Manual (produced annually by

NVLSP, published by Lexis/Nexis) US CAVC (Veterans Court): www uscourts.cavc.gov Dept of VA: www va .gov www .military .com www. vawatchdog. org Google!!


Katrina’s Contact Information:

10755 Scripps Poway Parkway; # 353; San Diego, CA 92131;

858.549.1561 (o) / 858.549.1167 [email protected]
