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?
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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.
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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…
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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)
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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)
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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.
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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.
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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).
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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.
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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.
REPRESENTING THE MILITARY VETERAN
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
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!!
Las Vegas, NV - 10 Oct 2014NOSSCR 2014 Fall Conference
Katrina’s Contact Information:
10755 Scripps Poway Parkway; # 353; San Diego, CA 92131;
858.549.1561 (o) / 858.549.1167 [email protected]
REPRESENTING THE MILITARY VETERAN