Clothing Allowance: Special VA Benefits for the Disabled Service Connected Vets

Clothing allowance is an annual lump-sum payment made when a Veteran’s service-connected disability causes the use of certain prosthetic or orthopedic appliances (including a wheelchair) that tend to wear or tear clothing, or when the Veteran’s service-connected skin condition requires the use of medication that stains the clothing. Eligible Veterans can receive a one-time or yearly allowance for reimbursement.

You may receive a clothing allowance as a Veteran who uses either of the following:

  • Prosthetic or orthopedic appliance, such as a wheelchair or crutches, because of a service-connected disability (Note: soft and flexible devices, such as an elastic stocking, are not included)
  • Medication prescribed by a physician for a service-connected skin condition that causes permanent stains or otherwise damages outer garments

Additional clothing allowances may be provided if more than one prosthetic or orthopedic appliance, or medication described above, is used and/or affects more than one type of clothing garment.

Note: An ancillary benefit is an additional benefit that is related to, or derived from entitlement to certain service-connected benefits.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Military Veterans Should Know About VA Home Loan Guaranty Benefits

VA Home Loan Guaranty Benefits

Home Loans

VA helps Servicemembers, Veterans, and eligible surviving spouses become homeowners. As part of the VA’s mission to serve you, the VA provides a home loan guaranty benefit and other housing-related programs to help you buy, build, repair, retain, or adapt a home for your own personal occupancy.

VA Home Loans are provided by private lenders, such as banks and mortgage companies. VA guarantees a portion of the loan, enabling the lender to provide you with more favorable terms.

Benefits

Purchase Loans help you purchase a home at a competitive interest rate often without requiring a downpayment or private mortgage insurance. Cash Out Refinance loans allow you to take cash out of your home equity to take care of concerns like paying off debt, funding school, or making home improvements. Learn More

Interest Rate Reduction Refinance Loan (IRRRL): also called the Streamline Refinance Loan can help you obtain a lower interest rate by refinancing your existing VA loan. Learn More

Native American Direct Loan (NADL) Program: helps eligible Native American Veterans finance the purchase, construction, or improvement of homes on Federal Trust Land, or reduce the interest rate on a VA loan. Learn More

Eligibility

You must have suitable credit, sufficient income, and a valid Certificate of Eligibility (COE) to be eligible for a VA-guaranteed home loan. The home must be for your own personal occupancy. The eligibility requirements to obtain a COE are listed below for Servicemembers and Veterans, spouses, and other eligible beneficiaries.

VA home loans can be used to:

  • Buy a home, a condominium unit in a VA-approved project
  • Build a home
  • Simultaneously purchase and improve a home
  • Improve a home by installing energy-related features or making energy efficient improvements
  • Buy a manufactured home and/or lot.
Status Qualifying Wartime & Peacetime Periods Qualifying Active Duty Dates Minimum Active Duty Service Requirement
Veteran WWII 9/16/1940 – 7/25/1947 90 total days
Post-WWII 7/26/1947 – 6/26/1950 181 continuous days
Korean War 6/27/1950 – 1/31/1955 90 total days
Post-Korean War 2/1/1955 – 8/4/1964 181 continuous days
Vietnam War 8/5/1964 – 5/7/1975 *For Veterans who served in the Republic of Vietnam, the beginning date is 2/28/1961 90 total days
Post-Vietnam War 5/8/1975 – 9/7/1980 *The ending date for officers is 10/16/1981 181 continuous days
24-month rule 9/8/1980 – 8/1/1990 *The beginning date for officers is 10/17/1981
  • 24 continuous months, OR
  • The full period (at least 181 days) for which you were called or ordered to active duty
Gulf War 8/2/1990 – Present
  • 24 continuous months, OR
  • The full period (at least 90 days) for which you were called or ordered to active duty
Currently On Active Duty Any Any 90 continuous days
National Guard & Reserve Member Gulf War 8/2/1990 – Present 90 days of active service
  • Six years of service in the Selected Reserve or National Guard, AND
    • Were discharged honorably, OR
    • Were placed on the retired list, OR
    • Were transferred to the Standby Reserve or an element of the Ready Reserve other than the Selected Reserve after service characterized as honorable, OR
    • Continue to serve in the Selected Reserve

*If you do not meet the minimum service requirements, you may still be eligible if you were discharged due to (1) hardship, (2) the convenience of the government, (3) reduction-in-force, (4) certain medical conditions, or (5) a service-connected disability.

Spouses

The spouse of a Veteran can also apply for home loan eligibility under one of the following conditions:

  • Unremarried spouse of a Veteran who died while in service or from a service connected disability, or
  • Spouse of a Servicemember missing in action or a prisoner of war
  • Surviving spouse who remarries on or after attaining age 57, and on or after December 16, 2003
    (Note: a surviving spouse who remarried before December 16, 2003, and on or after attaining age 57, must have applied no later than December 15, 2004, to establish home loan eligibility. VA must deny applications from surviving spouses who remarried before December 6, 2003 that are received after December 15, 2004.)
  • Surviving Spouses of certain totally disabled veterans whose disability may not have been the cause of death

Other Eligible Beneficiaries

You may also apply for eligibility if you fall into one of the following categories:

  • Certain U.S. citizens who served in the armed forces of a government allied with the United States in World War II
  • Individuals with service as members in certain organizations, such as Public Health Service officers, cadets at the United States Military, Air Force, or Coast Guard Academy, midshipmen at the United States Naval Academy, officers of National Oceanic & Atmospheric Administration, merchant seaman with World War II service, and others

Restoration of Entitlement

Veterans can have previously-used entitlement “restored” to purchase another home with a VA loan if:

  • The property purchased with the prior VA loan has been sold and the loan paid in full, or
  • A qualified Veteran-transferee (buyer) agrees to assume the VA loan and substitute his or her entitlement for the same amount of entitlement originally used by the Veteran seller. The entitlement may also be restored one time only if the Veteran has repaid the prior VA loan in full, but has not disposed of the property purchased with the prior VA loan. Remaining entitlement and restoration of entitlement can be requested through the VA Eligibility Center by completing VA Form 26-1880.

Certificate of Eligibility

After establishing that you are eligible, you will need a Certificate of Eligibility (COE). The COE verifies to the lender that you are eligible for a VA-backed loan. This page describes the evidence you submit to verify your eligibility for a VA home loan and how to submit the evidence and obtain a COE.

Evidence Needed

The evidence you need depends on the nature of your eligibility. Consult the table below to determine your category and the evidence you will need when applying.

Applying for a COE

After gathering the evidence you need, you can apply for your Certificate of Eligibility (COE) in the following ways.

Servicemembers, Veterans, and National Guard and Reserve Members

Apply online

To get your Certificate of Eligibility (COE) online, please go to the eBenefits portal. If you already have login credentials, click the Login box, and if you need login credentials, please click the Register box and follow the directions on the screen.  If you need any assistance please call the eBenefits Help Desk at 1-800-983-0937.  Their hours are Monday-Friday, 8am to 8pm EST.

Apply through your lender

Most lenders have access to the Web LGY system. This Internet-based application can establish eligibility and issue an online COE in a matter of seconds. Not all cases can be processed through Web LGY – only those for which VA has sufficient data in our records. However, Veterans are encouraged to ask their lenders about this method of obtaining a certificate.

Apply by mail

Use VA Form 26-1880, Request for Certificate of Eligibility.

Surviving Spouses

Spouses can take the VA form 26-1817 to their lender for processing (see Apply Through Lender above) or may mail the 26-1817 and DD214 (if available) to the following address:

Download VA Form 26-1817, Request for Determination of Loan Guaranty Eligibility – Unmarried Surviving Spouses

If you can’t print the form, just call 1-888-768-2132 and follow the prompts for Eligibility and we will mail the form to you.

Send the completed form to:
VA Loan Eligibility Center
Attn: COE (262)
PO Box 100034
Decatur, GA 30031

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

What is VA Vocational Rehabilitation and Training Benefits

The purposes of the VA Vocational Rehabilitation (“Voc Rehab”) program are to help veterans with service-connected conditions become gainfully employed, maintain that employment, and achieve independence in daily living. The Voc Rehab program is implemented in Chapter 31 of Title 38 of the Code of Federal Regulations, so the benefits are sometimes referred to as “Chapter 31” benefits. The program includes several different services and benefits to help an eligible veteran achieve his or her rehabilitation goal. Services include vocational and personal counseling, education and training, financial aid, job assistance, and, if needed, medical and dental treatment. Program services generally are available for up to 48 months, but can be extended under certain instances.

Basic entitlement for Voc Rehab requires 1) a veteran with an award of monthly VA compensation or 2) a service member awaiting discharge from the service with a condition which will likely be awarded monthly VA compensation. In addition, a Voc Rehab claimant generally

  • Must have served on or after September 16, 1940; and
  • Must have service-connected conditions that are schedular rated at least 20% disabling (10% if VA determines a “serious employment handicap” exists); and
  • Needs Voc Rehab to overcome an employment handicap; and
  • It has been less than 12 years since VA notified the claimant of his or her qualification for Voc Rehab benefits.

The 12 year eligibility period can be extended if certain conditions prevented the claimant from participating in the program or if a serious employment handicap exists.

A veteran who is eligible for an evaluation under Chapter 31 must first apply for Voc Rehab services using VA Form 28-1900 [http://www.va.gov/vaforms/form_detail.asp?FormNo=28-1900]. An eligible applicant will receive an appointment with a Voc Rehab counselor who will determine if an employment handicap exists as a result of the veteran’s service connected condition. If an employment handicap is established, a plan to address the veteran’s unique rehabilitation and employment needs will be developed.

Under the Voc Rehab program, VA will pay training costs, tuition and fees, books, supplies, equipment, and special services needed by the veteran. While in training, VA will also pay a monthly “subsistence allowance” to help with living expenses. For veterans with service-connected disabilities so severe that they cannot immediately get back to work, the program will try to improve his or her ability to live as independently as possible.

Chapter 31 of title 38, United States Code, provides for the training and rehabilitation of veterans with service-connected disabilities.  “The purposes of [chapter 31 benefits] are to provide for all services and assistance necessary to enable veterans with service-connected disabilities to achieve maximum independence in daily living and, to the maximum extent feasible, to become employable and to obtain and maintain suitable employment.”  38 U.S.C. § 3100.  38 U.S.C. section 3101 refers to a VA “vocational rehabilitation program” and defines that rehabilitation program.  Additionally, 38 U.S.C. section 3104 provides in pertinent part:  “Services and assistance which the Secretary may provide under this chapter, pursuant to regulations which the Secretary shall prescribe, include … [p]lacement services to effect suitable placement in employment, and postplacement services to attempt to insure satisfactory adjustment in employment.”  38 U.S.C. § 3104(a)(5).

Under VA regulation, the term rehabilitation program “includes, when appropriate: (1) A vocational rehabilitation program (see paragraph (i) of this section); … or (3) A program of employment services for employable veterans who are prior participants in Department of Veterans Affairs or state-federal vocational rehabilitation programs.”  38 C.F.R. § 21.35(f). Further, 38 C.F.R. section 21.35(i) restates the definition of “vocational rehabilitation program” in the same terms as already defined in 38 U.S.C. § 3101(9)(A)(ii).  Cottle v. Principi, 14 Vet. App. 329, 332-33 (2001).

The statutory purpose of vocational rehabilitation programs is “to enable veterans with service-connected disabilities … to the maximum extent feasible, to become employable and to obtain and maintain suitable employment.” 38 U.S.C. § 3100; see also 38 C.F.R. § 21.1 (same).  Thus, the very fact of a veteran’s participation in a rehabilitation program, the objective of which is to become employable, is evidence that the veteran is presently unemployable.

[A] veteran’s participation in an activity carried out under this section [entitled “Therapeutic and rehabilitative activities”] … may [not] be considered as a basis for the denial or discontinuance of a rating of total disability for purposes of compensation or pension based on the veteran’s inability to secure or follow a substantially gainful occupation as a result of disability.

38 U.S.C. § 1718(f)(1).  A plain reading of the statute reveals that the Board may not properly consider an appellant’s participation in a vocational rehabilitation program as evidence of employability.  Thus, the interim evaluations from a vocational rehabilitation program are both irrelevant and immaterial to evaluating employability because they do not logically establish employability in the periods in which they are rendered; they only point to the strength of an expectation of future employability.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

What Military Veterans Should Know About VA Education Benefits

VA offers a number of educational benefits to veterans and, in some cases, to a veteran’s spouse and dependents. Educational benefits programs include the Montgomery GI Bill (“New GI Bill”), Post-9/11 Educational Assistance Program, Veterans Educational Assistance Program (VEAP), Reserve Education Assistance Program (REAP), Survivors & Dependents Assistance (DEA), Educational Test Program, National Call to Service Program, and Veterans Retraining Assistance Program. Each program has different eligibility requirements, eligibility periods, and time limits for completing the educational programs. A person receiving benefits from one VA educational program cannot receive benefits from any other VA educational benefits program.

Each program requires a claim for the benefit desired to begin the process using VA Form 22-1990 [link]. As all of these programs often have very specific requirements, any potential claimant should carefully review each program in detail to identify the benefits for which they may be eligible and the best program for their individual needs. The two most commonly sought programs are briefly described below.

Benefits under the Montgomery GI Bill are generally available for those who went on active duty after June 30, 1985. In some cases, Selected Reserve and National Guard members may also be eligible. In all cases, there are minimum service periods of from 2 to 4 years depending on the specific circumstances of service. Under this program, which is also known as “Chapter 30” benefits, educational benefits are available for up to 36 months. Payments are for a fixed amount depending on whether the educational program is full- or part-time.

Eligible veterans must have received an honorable discharge (not just “other than dishonorable”). Before applying, a claimant must also have (1) obtained a high school diploma or equivalent or (2) completed the equivalent of 12 credit hours in a college degree program. Involuntarily separated veterans may also qualify under certain conditions.

The Post-9/11 GI Bill became effective August 1, 2009, and provides financial support for education and housing to individuals with at least 90 days of aggregate service after September 10, 2001, and individuals discharged with a service-connected disability after 30 days of service. A veteran must have received an honorable discharge to be eligible for Post-9/11 GI Bill benefits, which are also known as “Chapter 33” benefits. Approved training under this program includes undergraduate and graduate degrees, vocational and technical training, licensing, and national testing. To receive benefits, the particular training program attended must be approved by VA.

In general, the Post 9-11 GI Bill program pays full tuition directly to the school for all public school in-state students. There are some restrictions and caps for those attending private or foreign schools. The program will also pay a limited monthly housing allowance, books and supplies stipend, and a one-time rural benefit, if applicable. The Chapter 33 program provides up to 36 months of benefits and benefits are generally payable for up to 15 years following release from active duty.

An individual entitled to either Chapter 30 or Chapter 33 benefits may transfer an entitlement to educational assistance to: (1) a spouse; (2) a child; or (3) a combination of spouse and child. The family member must otherwise be eligible for benefits at the time of transfer to receive transferred educational benefits. Applications should be submitted using VA Form 22-5490 [link].

38 U.S.C. Chapter 35 provides educational assistance to “eligible persons,” including “children whose education would otherwise be impeded or interrupted by reason of disability or death of a parent from a disease or injury incurred or aggravated in the Armed Forces.”  38 U.S.C. § 3500.  For purposes of DEA benefits under chapter 35, “eligible person” means a child of a person who, as a result of qualifying service, died of a service-connected disability or has a total disability permanent in nature resulting from a service-connected disability, or who dies while a disability so evaluated was in existence.  38 U.S.C. § 3501(A)(1)(a).

In general, an eligible child’s period of eligibility for educational assistance under chapter 35 ends on his or her 26th birthday.  38 U.S.C. § 3512(a); 38 C.F.R. § 21.3041(a), (b), although there are some exceptions.  38 C.F.R. § 21.3041(g).  The general rule is that the commencing date of an original award of educational assistance is the latest of:  (a) the date the educational institution certifies the course; (b) one year before the date of receipt of the claim; or (c) the effective date of the approval of the course, or one year before VA receives approval notice, whichever is later.  38 U.S.C. § 3672; 38 C.F.R. § 21.4131(a).  When determining the effective date of an award under Chapter 35 the Secretary may consider the individual’s application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision.  38 U.S.C. § 5113(b).

Pursuant to 38 U.S.C. section 5113(b)(2) the criteria for an earlier effective date under this statute requires that the claimant is an eligible person who:

(A) submits to the Secretary an original application for educational assistance under Chapter 35 of this title . . . within one year of the date that the Secretary makes the rating decision;

(B)   claims such educational assistance for pursuit of an approved program of education during a period preceding the one-year period ending on the date on which the application was received by the Secretary; and

(C)   would have been entitled to such educational assistance for such course pursuit if the individual had submitted such application on the individual’s eligibility date.

Forever GI Bill – Harry W. Colmery Veterans Educational Assistance Act

The Harry W. Colmery Veterans Educational Assistance Act, also known as the “Forever GI Bill,” will bring significant changes to Veterans education benefits over the coming years. Most changes enhance or expand education benefits for Veterans, servicemembers, families, and survivors. View our breakdown of the updated benefits.

Resources

Contact Us

  • Join the conversation on Facebook or follow us on Twitter.
  • Our Education Call Center is available at 1-888-442-4551 (Monday – Friday, 7 a.m. – 6 p.m. CST) for any questions about GI Bill benefits.
  • Take advantage of your local Veterans Service Officer to help you navigate the new information.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

How VA Evaluates Income for Non-Service Connected Pension

Countable Income for Non-Service Connected Pension

To determine the income limit requirement for eligibility, the VA will require the Veteran to report all “countable income” for the Veteran’s household.

Countable income” refers to all household income:

  • the Veteran’s,
  • Veteran’s spouse (if living with the Veteran), and
  • Dependents.

The Veteran’s “countable income” must be below the maximum annual pension rate, MAPR, and the Veteran’s “net worth” must not provide adequate maintenance of the Veteran.

The need for pension is determined by “countable income” minus allowable deductions. The calculated reduced income is then subtracted from MAPR limit and the result is the annualized pension divided by 12 months.

As an example:

  • The MAPR for a Veteran who needs aid and attendance with no dependents is $21,531 income per year.
  • The Veteran’s countable income is $32,000 per year.
  • After subtracting the allowable deductions, the countable income of the Veteran is reduced to $15,000/year.
  • The MAPR of $21,531 minus $15,000 of countable income equals $6,531 per year of VA Pension.
  • The $6,531 yearly VA Pension is divided by 12 months to determine the monthly amount.
  • The Veteran receives a VA pension for $544.25 monthly for this example.

Allowable Deductions from Countable Income for VA Pension

The Veterans “countable income” is reduced by specific expenses. However, often Veterans believe that they are not eligible for pension because they make too much or are denied because they do not know the complete list of income exclusions and deductible expenses that would reduce their “countable income”.

The complete list of income exclusions is provided in 3.272 of title 38, Code of Federal Regulations. This knowledge is important because most Veterans mistakenly think that the only income deduction is unreimbursed medical expenses over 5% of the Veteran’s household income. When in fact there are many deductions and when the Veteran uses all of the deductions that apply to their situation, the outcome is greater.

Another mistake that Veterans make is reporting income that is excluded from income reporting on the pension application.       Not knowing the rules or what information to supply can cause a VA denial!

All income received from the following exclusions are not considered countable income by the VA. Veterans should make sure that when applying for pension, all deductions are applied and only income not excluded is counted. The list includes 22 income sources that are excluded from reporting and are found in Title 38 CFR 3.272:

  1. Welfare,
  2. Maintenance in an institution or facility due to age or impaired health,
  3. VA pension benefits ( Payments under Chapter 15 of Title 38 and including accrued pension benefits payable under 38 U.S.C. 5121),
  4. Reimbursement for casualty loss,
  5. Profit from the sale of property,
  6. Joint accounts,
  7. Unreimbursed medical expenses that are 5% of the MARP,
  8. Veteran’s final expenses,
  9. Educational expenses for Veteran or Spouse,
  10. Domestic Volunteer Service Act Programs,
  11. Distribution of funds under 38. U.S.C 1718,
  12. DOD survivor benefit annuity,
  13. Agent Orange settlement payments,
  14. Restitution to individuals of Japanese ancestry,
  15. Cash surrender value of life insurance,
  16. Income received by American Indian beneficiaries from trust or restricted lands,
  17. Payments from the Radiation Exposure Compensation Act,
  18. Alaska Native Claims Settlement Act,
  19. Monetary allowance under 38 U.S.C. chapter 18, Victims of Crime Act,
  20. Healthcare premiums to include Medicare, (make sure to include all insurance premiums paid for all 4 Parts of Medicare-A,B,C,D and Supplemental plans),
  21. Medicare prescription drug discount card and transitional assistance program, and
  22. Lump-sum life insurance proceeds on a veteran.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

What Disabled Veteran Should Know About Special Rules For Certain Claims

Congress, and in some cases VA, has recognized that some conditions resulting from service are so widespread or unique that they require special procedures. Two of the most common of these conditions, herbicide exposure in Vietnam Era veterans and undiagnosed or multisymptom illnesses in Persian Gulf War veterans, are described below.

Herbicide-Exposed Veterans

Congress has established a “presumption” of exposure to herbicides, most infamously including “Agent Orange,” for veterans who served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975. A presumption is a legal term that means that VA has to assume a fact unless there is evidence against the fact. For Vietnam veterans this means that evidence of actual exposure Agent Orange is not required – those veterans is presumed to have been exposed to Agent Orange – if they meet the requirements for the presumption.

For claimants, this means that if a veteran can show he or she was in Vietnam during the specific period and currently has a medical condition listed in VA regulations as being caused by Agent Orange which began within the listed time periods, VA must service connect that condition. Conditions that are presumptively service-connected for herbicide exposure include chloracne, Type 2 diabetes (also know as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, Non-Hodgkin’s lymphoma, B cell leukemia, Parkinson’s disease, and ischemic heart disease. Other presumptive conditions are listed, so a Vietnam veteran with a health condition should review the entire list. [link to CFR]

Just who is eligible for the herbicide presumption has been the topic of extensive debate and litigation. As it currently stands, having earned a Vietnam Service Medal is not enough to obtain the presumption. A veteran must show that he or she put “boots on the ground” in Vietnam or have been a “brown water” (inland waters) sailor to qualify. A single layover or shore leave is enough to receive the presumption. In addition, some veterans with service in Korea are also eligible for the presumption. For veterans with service in Thailand the key to claims for exposure are military duties that took the veteran out to and alongside the perimeter of bases where defoliants were acknowledged to have been used. Such duties include dog handling, security, and some maintenance activities.

Many veterans have challenged this definition, especially “blue water” (open ocean) sailors and Air Force ground support personnel who believe that they were exposed to Agent Orange or other herbicides during service. VA, backed by the courts, will not apply the presumption unless they have evidence of “boots on the ground” from these veterans.  Air Force members and reservist who served

On June 19th, 2015 the Federal Register published that Air Force Servicemembers and Air Force Reservists who served during the period of 1969 through 1986 and whose service required that they regularly and repeatedly operate, maintain, or serve onboard C-123 aircraft that was exposed to Agent Orange are now eligible for VA disability compensation for presumptive conditions due to Agent Orange Exposure.

In addition, any veteran who believes that he or she was exposed to a herbicide can file a claim and attempt to show actual herbicide exposure. This can be done by providing evidence of actual exposure, such as photographs showing Agent Orange barrels. In addition, veterans who served in other locations, such as Guam, have occasionally been able to show actual exposure although the government does not officially acknowledge Agent Orange was stored or used in those locations.

A unique aspect of Agent Orange claims is the possible retroactive assignment of effective dates. A series of court orders in the class-action litigation in Nehmer v. United States Department of Veterans Affairs, requires VA in certain cases to make an award effective on the date of the claimant’s application or the date of a previously-denied application, even if such date is earlier than the effective date of the regulation establishing the presumption. In other words, the Nehmer case created an exception to the rules for calculating effective dates and requires VA to assign retroactive effective dates for certain awards of disability compensation and DIC.

Another result of the Nehmer case is that if an individual was entitled to retroactive benefits as a result of the court orders but died prior to receiving such payment, VA must pay the entire amount of the retroactive payments to the veteran’s estate, regardless of any statutory limits on payment of benefits following a veteran’s death. Veterans and surviving spouses, dependent children, and dependent parents of veterans with service in Vietnam who previously filed claims for conditions associated with herbicide exposure should carefully review current VA regulations to determine if they are eligible for retroactive benefits.

Polytraumatic Injuries Requiring Specialized Rehab

Recent combat has resulted in new patterns of polytraumatic injuries and disability requiring specialized intensive rehabilitation processes and coordination of care throughout the course of recovery and rehabilitation. While serving in Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF), military service members are sustaining multiple severe injuries as a result of explosions and blasts. Improvised explosive devices, blasts, landmines, and fragments account for 65 percent of combat injuries (see subpar. 17a). Congress recognized this newly emerging pattern of military injuries with the passage of Public Law 108-422, Section 302, and Public Law 108-447.

Combat injuries are often the result of a blast. Blasts cause injuries through multiple mechanisms. Severe blasts can result in total body disruptions and death to those closest to the blast site or they can result in burns and inhalation injuries. Blast injuries typically are divided into four categories: primary, secondary, tertiary, and quaternary or miscellaneous injuries.

1. Primary Blast Injuries. Primary blast injuries are caused by overpressure to gas- containing organ systems, with most frequent injury to the lung, bowel, and inner ear (tympanic membrane rupture). These exposures may result in traumatic limb or partial limb amputation.

2. Secondary Blast Injuries. Secondary blast injuries occur via fragments and other missiles, which can cause head injuries and soft tissue trauma.

3. Tertiary Blast injuries. Tertiary Blast injuries result from displacement of the whole body by combinedpressure loads (shock wave and dynamic overpressure).

4. Miscellaneous Blast-related Injuries. These are miscellaneous blast-related injuries such as burns and crush injuries from collapsed structures and displaced heavy objects. Soft tissue injuries, fractures, and amputations are common.

Animal models of blast injury have demonstrated damaged brain tissue and consequent cognitive deficits. Indeed, the limited data available suggests that brain injuries are a common occurrence fromblast injuries and often go undiagnosed and untreated as attention is focused on more “visible” injuries. A significant number of casualties sustain emotional shock and may develop PTSD. Individuals may sustain multiple injuries from one or more of these mechanisms. Explosions can produce unique patterns of injury seldom seen outside combat.

Center for Disease Control and Prevention (CDC) Classification of Blast Injuries

Auditory or Vestibular
Tympanic membrane rupture, ossicular disruption, cochlear damage, foreign body, hearing loss, distorted hearing, tinnitus, earache, dizziness, sensitivity to noise.

Eye, Orbit or Face
Perforated globe, foreign body, air embolism, fractures.

Respiratory
Blast lung, hemothorax, pneumothorax, pulmonary contusion and hemorrhage, atrioventricular fistula (source of air embolism), airway epithelial damage, aspiration pneumonitis, sepsis.

Digestive
Bowel perforation, hemorrhage, ruptured liver or spleen, mesenteric ischemia from air embolism, sepsis, peritoneal irritation, rectal bleeding.

Circulatory
Cardiac contusion, myocardial infarction from air embolism, shock, vasovagal hypotension, peripheral vascular injury, air embolism-induced injury.

Central Nervous System
Concussion, closed or open brain injury, petechial hemorrhage, edema, stroke, small blood vessel rupture, spinal cord injury, air embolism- induced injury, hypoxia or anoxia, diffuse axonal injury.

Renal and/or Urinary Tract
Renal contusion, laceration, acute renal failure due to rhabdomyolysis, hypotension, hypovolemia.

Extremity
Traumatic amputation, fractures, crush injuries, burns, cuts, lacerations, infections, acute arterial occlusion, air embolism-induced injury.

Soft Tissue
Crush injuries, burns, infections, slow healing wounds.

Emotional or Psychological
Acute stress reactions, PTSD, survivor guilt, post-concussion syndrome, depression, generalized anxiety disorder.

Pain
Acute pain from wounds, crush injuries, or traumatic amputations; chronic pain syndromes.

Recognizing the specialized clinical care needs of individuals sustaining multiple severe injuries, VA has established four PRCs. The PRC mission is to provide comprehensive inpatient rehabilitation services for individuals with complex physical, cognitive and mental health sequelae of severe and disabling trauma, to provide medical and surgical support for ongoing and/or new conditions, and to provide support to their families. Intensive clinical and social work case management services are essential to coordinate the complex components of care for polytrauma patients and their families. Coordination of rehabilitation services must occur seamlessly as the patient moves from acute hospitalization through acute rehabilitation and ultimately back to the patient’s home community. Transition to the home community may include a transfer from a PRC to a less acute facility.

The Secretary of Veterans Affairs designated five PRCs, co-located with TBI Lead Centers, at VA Medical Centers in Richmond, VA; Tampa, FL; Minneapolis, MN; San Antonio, TX, and Palo Alto, CA (see App. A). It is VHA policy that the PRCs provide a full-range of care for all patients eligible for VA care, who have sustained varied patterns of severe and disabling injuries including, but not limited to: TBI, amputation, visual and hearing impairment, spinal cord injury (SCI), musculoskeletal injuries, wounds, and psychological trauma. Due to the medical complexity of these patients, PRCs must be prepared to admit individuals who may have a higher level of medical acuity and require interdisciplinary management by various medical specialists. The general admission criteria to the PRC include:

1.The individual with polytrauma is an eligible veteran or an active duty military service member; and
2.The individual has sustained multiple physical, cognitive, and/or emotional impairments secondary to trauma; and
3.The individual has the potential to benefit from inpatient rehabilitation; or
4.The individual has the potential to benefit from a transitional community re-entry program; or
5.The individual requires an initial comprehensive rehabilitation evaluation and care plan.

It is recommended that all patients experiencing a polytraumatic injury be referred to a VA PRC. The PRC team has specialized expertise to determine the most appropriate setting for care. If the patient does not require admission to a PRC, the team can assist with coordination of care at the most appropriate facility. Referral to a PRC also ensures that the patient and family are integrated into the VA system of care with the appropriate rehabilitation services. NOTE: The SCI Chief for the applicable region needs to be contacted by the PRC admissions clinical case manager to consult on the transfer of patients with a diagnosis of TBI and SCI.

Referrals to the PRC must be given the highest priority and the screening process needs to be expedited to ensure that there are no delays in transferring a patient to the Center. The PRC must accept admissions on a 24/7 basis. To establish the medical needs and acuity of the patient, there is a need to review medical documentation, consult with the referring treatment provider, and coordinate a plan for transfer.

Referral of service members with polytrauma to a PRC is initiated by DOD, typically by the MTF social worker or case manager, or other DOD representative. Where assigned, the VA- DOD liaison social worker is actively involved in the referral process, facilitating communications, information exchange, transition of care, and family support. The PRC’s admissions clinical case manager coordinates the referral and screening process for the accepting VA PRC. NOTE: For those referral sources that do not have VA-DOD liaisons, admission screening is to be coordinated between the PRC admission clinical case manager and the MTF.

Points of Contact
VA Polytrauma Points of Contact are available at 39 VAMCs without specialized rehabilitation teams. These Points of Contact, established in 2007, are knowledgeable about the VA Polytrauma/TBI System of care and coordinate case management and referrals throughout the system and may provide a more limited range of rehabilitation services.

Polytrauma Points of Contact (PPOC)
VISN Facility/Health Care System Contact Information
1. Louis A. Johnson VAMC- Clarksburg, WV (304) 623-3461
2. Beckley VA Medical Center, WV (304) 255-2121
3. Asheville VA Medical Center- Asheville NC (828) 298-7911
4. Fayetteville VA Medical Center- Fayetteville, NC (910) 488-2120
5. Carl Vinson VA Medical Center- Dublin, GA (334) 727-0550
6. Central Alabama Veterans Health Care System: East Campus- Tuskegee, AL (478) 272-1210
7. Columbus Outpatient Clinic- Columbus, OH (614) 257-5327
8. Chillicothe VA Medical Center- Chillicothe, OH (740) 773-1141
9. VA Northern Indiana Health Care System- Marion, IN (989) 497-2500
10. Aleda E. Lutz VA Medical Center- Saginaw, MI (260) 426-5431
11. Battle Creek VA Medical Center- Battle Creek, MI (269) 966-5600
12. Iron Mountain, MI VAMC (906) 774-3300
13. Marion VA Health Care System- Marion, IL (618) 997-5311
14. VA Eastern Kansas Health Care System: Colmery-O’Neill VA Medical Center Topeka, KS (785) 350-3111
15. Harry S. Truman Memorial Veterans’ Hospital- Columbia, MO (573) 814-6638
16. John J. Pershing VA Medical Center- Poplar Bluff, MO (573) 778-4359
17. Southeast Louisiana Veterans Health Care System- New Orleans, LA (504) 556-7245
18. Kerville VA Medical Center- Kerville, TX (830) 896-2020
19. Waco VA Medical Center- Waco, TX (254) 0743-0711
20. VA Texas Valley Coastal Bend Health Care System (956) 291-9000
21. Amarillo VA Health Care System- Amarillo, TX (806) 355-9703
22. West Texas VA Health Care System- Big Spring, TX (432) 263-7361
23. El Paso VA Health Care System- El Paso, TX (915) 564-6159
24. Northern Arizona VA Health Care System- Prescott, AZ (505) 265-1711
25. VA Montana Health Care System- Ft. Harrison, MT (406) 442-6410
26. Cheyenne VA Medical Center- Cheyenne, WY (307) 778-7550
27. Sheridan VA Medical Center- Sheridan, WY (307) 672-1677
28. Alaska VA Healthcare System- Anchorage, AK (907) 257-4854/6911
29. VA Roseburg Healthcare System- Roseburg, OR (541) 440-1000
30. VA Puget Sound Health Care System-American Lake (206) 277-3693
31. VA Southern Oregon Rehabilitation Center and Clinics- White City, OR (541) 826-2111
32. Spokane VA Medical Center- Spokane, WA (509) 434-7018
33. Jonathan M. Wainwright Memorial VA Medical Center- Walla Walla, WA (509) 525-5200
34. Sierra Nevada Health Care System- Reno, NV (775) 786-7700
35. VA Central California Health Care System- Fresno, CA (559) 225-6100
36. VA Pacific Islands Health Care System- Honolulu, HI (808) 433-0605
37. Manila Outpatient Clinic-Manila, Philippines (632)-318-8387 or (632)-833-4566
38. VA Southern Nevada Healthcare System- Las Vegas, NV (702) 636-3000
39. Fargo VA Medical Center- Fargo, ND (701) 239-3700

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

What Veterans Should Know About Legal Presumtions of VA Disability Claims

What’s a Legal Presumption?

A presumption is a rule of law which permits a court to assume a fact is true without any evidence until there is a certain weight of evidence which rebuts (disproves or outweighs) the presumption.  Each presumption is based upon a particular set of apparent facts coupled with established laws, logic, or reasoning.  A presumption is “rebuttable” when a person can present facts to persuade a judge that the presumption is not true in his or her particular case.  The VA system includes a number of presumptions some favorable and some unfavorable to claimants, as described below.

Presumption of In-service Occurrence

Congress has specified a number of conditions the diagnosis of which within certain periods after discharge from service gives rise to a statutory presumption of incurrence in service.  38 U.S.C. § 1112(a)(1); Collamore v. Derwinski, 2 Vet. App. 541, 543 (1992).  These presumptions include:

  • a chronic or tropical disease developing a 10% or more degree of disability within 1 year
  • active tuberculosis developing a 10% or more degree of disability within 3 years
  • Hansen’s disease developing a 10% or more degree of disability within 3 years
  • multiple sclerosis developing a 10% or more degree of disability within 7 years

38 U.S.C. § 1112(a).  There is also a broad presumption for prisoners of war detained for not less than 30 days.  38 U.S.C. § 1112(b).

Presumption of Soundness

“[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment.”  38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b).  Therefore, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service.  Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227.

Upon entering service, an individual will be presumed sound, “except as to defects, infirmities, or disorders noted at [entry], or where clear and unmistakable evidence demonstrates that the injury or disease existed before [service] and was not aggravated by such service.”  38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b).  “Clear and unmistakable evidence,” as used in the governing statutes, has been interpreted to mean evidence that “cannot be misinterpreted and misunderstood, i.e., it is undebatable.”  Vanerson v. West, 12 Vet. App. 254, 258-59 (1999) (citing definition of “clear and unmistakable error” in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).

The Court has held that the Board should seek medical opinions as necessary to determine the sufficiency of the evidence offered to rebut the presumption of soundness.  Adams v. West, 13 Vet. App. 453 (2000), aff’d sub nom. Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001).  The regulations implementing 38 U.S.C. § 1111 state that medical evidence is necessary to rebut the presumption of soundness and that the Board should not make such a determination without seeking medical opinions. See 38 C.F.R. § 3.304(b); see also Adams, 256 F.3d at 1318.  Although the Secretary may not seek an opinion for the sole purpose of discrediting an appellant’s claim, the Board is free to obtain a medical opinion to clarify an issue of medical complexity.  See Adams, 256 F.3d at 1318; see Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009).

In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the Federal Circuit discussed the interplay between the statutory presumptions of soundness and aggravation and its effect on VA’s burden of rebuttal.  The Federal Circuit neatly summarized the burden-shifting framework as follows:

The effect of section 1111 on claims for service-connected disability thus may be summarized as follows.  When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress” of the preexisting condition.

370 F.3d at 1096 (quoting 38 U.S.C. section 1153).  In deciding whether a condition preexisted service, the Board must consider the veteran’s medical history, accepted medical principles, evidence of the “basic character, origin and development” of the condition, and “lay and medical evidence concerning the inception, development and manifestations” of the particular condition.  38 C.F.R. §§ 3.304(b)(1), (2).

The Court reviews de novo a Board decision concerning the adequacy of the evidence offered to rebut the presumption of soundness.  See Cotant v. Principi, 17 Vet. App. 116, 130 (2003).  However, the Federal Circuit has stated that, in reviewing the legal sufficiency of such rebuttal evidence, this Court may employ the “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard of review because it subsumes de novo review of questions of law.  Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004).  Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009).

The only prerequisite for the application of the presumption of soundness is that the veteran’s entry examination be clear of any noted diseases or disabilities.  See Wagner, 370 F.3d at 1096.  The Court has recognized that service connection may be granted for congenital diseases.  Monroe v. Brown, 4 Vet. App. 513, 515 (1993).  The presumption of soundness applies if a veteran’s congenital condition is not noted at entry. See id.

The presumption of soundness does not, however, apply to congenital defects, because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111.  38 C.F.R. § 3.303(c); see Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects); see Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”).  “VA regulations state that congenital or developmental defects ‘are not diseases or injuries within the meaning of applicable legislation.'”  Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (quoting 38 C.F.R. § 3.303(c)).  On the other hand, “congenital diseases . . . may be service connected.”  Id.

“[A] defect differs from a disease in that the former is ‘more or less stationary in nature’ while the latter is ‘capable of improving or deteriorating.'”  Id. (quoting VA Gen. Couns. Prec. 82-90 at 2).  Thus, congenital defects and conditions resulting from them are not compensable, whereas congenital diseases and conditions resulting from them are compensable.  For this reason, “[t]he presumption of soundness does not . . . apply to congenital defects, because such defects ‘are not diseases or injuries’ within the meaning of 38 U.S.C. §§ 1110 and 1111,” the statutes governing basic entitlement to VA benefits and the presumption of soundness.  Id. at 397.

Importantly, it is well established that merely noting a history of pre-service medical problems does not suffice to “note” a medical condition that is present at induction.  See Crowe v. Brown, 7 Vet. App. 238, 245 (1995) (childhood history of asthma did not “note” the condition at induction); 38 C.F.R. § 3.304(b)(1) (“History of preservice existence of conditions recorded at the time of examinations does not constitute a notation of such conditions”).

Presumption of Regularity

There is a “presumption of regularity” under which Government officials are presumed to “have properly discharged their official duties.”  Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992).  This presumption is a legal fiction that allows the Court to assume, without proof or evidence, that VA did whatever action it was supposed to have done.  For example, a common use of the presumption of regularity is when there is a dispute about whether VA mailed a document to a claimant.  The Court will presume that VA mailed the document to the claimant on the proper date and to the proper address even if there is nothing in the C-file about the mailing unless the claimant can show that the mailing did not happen that way.

The presumption of regularity does have some limits.  First, the presumption of regularity applies only when the performance of the procedure appears regular.  See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (noting that the presumption of regularity “allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary” (quoting Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001))).  The mailing of notices discussed above is a prime example.  If the C-file contains some notices, but not others, the absence of letters seeking information or providing the purportedly requested information, may show that the mailing procedure was not performed regularly, such that the presumption is not applicable.  See U.S. VET. APP. R. 28.1(a)(1) (“The record of proceedings shall contain . . . [documents] relevant to the issues before the Board that are on appeal to the Court”).  Although the presumption may be rebutted by clear evidence that the mailing procedures were not regular or were not followed in a particular instance, “[a]n ‘assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process.'”  Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (quoting Jones v. West, 12 Vet. App. 98,102 (1998)).

Herbicide-exposed Veterans (including Agent Orange)

For certain veterans exposed in service to a herbicide agent, Congress has established a presumption of service connection for a number of diseases.  See 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e).  Service connection for diseases listed in 38 C.F.R. § 3.309(e) is presumed if a veteran was exposed to certain herbicides, including Agent Orange, during military service.  See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  The term “herbicides” is not limited to Agent Orange, but includes any tactical herbicide.  Vietnam veterans are rebuttably presumed to have been exposed to herbicides if they served in the Republic of Vietnam.  38 C.F.R. § 3.307(a)(6)(iii).  So veterans deemed to have served in the Republic of Vietnam as discussed below, do not have to produce evidence of actual exposure to Agent Orange or any other herbicide.

A veteran who served in the Republic of Vietnam, its offshore waters, or other locations, “if the conditions of service involved duty or visitation in the Republic of Vietnam” between January 9, 1962, and May 7, 1975, is presumed to have been exposed during such service to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii).  Under VA’s interpretation of this regulation, a veteran who set foot on the landmass of the Republic of Vietnam is entitled to a presumption of exposure to Agent Orange.  Haas v. Peake, 525 F.3d 1168, 1174 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009).  Service on a U.S. Navy vessel may also qualify, as long as the veteran set foot on land at some point.  Id. at 1195, 1197.

The presumption of herbicide exposure also applies for Navy veterans who served on vessels that were originally designated as offshore, or “blue water,” vessels, but nevertheless conducted operations on the inland “brown water” rivers and delta areas of Vietnam.  When a veteran alleges exposure to herbicides during service aboard a Navy or Coast Guard ship that operated on the offshore waters of Vietnam, VA is required to look for:

  • evidence that shows the ship
    • docked to the shores or piers of the RVN
    • operated temporarily on the RVN inland waterways, or
    • operated on close coastal waters for extended periods, with evidence that
      • crew members went ashore, or
      • smaller vessels from the ship went ashore regularly with supplies or personnel
  • evidence that places the veteran onboard the ship at the time the ship docked to the shore or pier or operated in inland waterways or on close coastal waters for extended periods, and
  • the veteran’s statement as to whether he or she went ashore when the ship docked or operated on close coastal waters for extended periods, if the evidence shows the ship docked to the shore or pier or that crew members were sent ashore when the ship operated on close coastal waters.

M21-1MR, part IV, subpt ii, chap 1, sec H.28; see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).

“A veteran who contracts a disease not presumed under the regulation to be caused by herbicide exposure” may still seek to establish service connection on a direct basis, pursuant to Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Ischemic heart disease is now on the list of diseases subject to presumptive service connection secondary to herbicide exposure.  38 C.F.R. § 3.309(e); 75 Fed. Reg. 53,202 (Aug. 31, 2010) (section 3.309(e) is amended “by adding ‘Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina)'”), Parkinson’s disease, and all chronic B-cell leukemias.).  The list of presumptive conditions now includes:

  • AL amyloidosis
  • Chloracne and related conditions
  • Type 2 diabetes
  • Hodgkin’s disease
  • Ischemic heart disease
  • Chronic B-cell leukemias
  • Multiple myeloma
  • Non-Hodgkins lymphoma
  • Parkinson’s disease
  • Acute and subacute peripheral neuropathy
  • Porphyria cutanea tarda
  • Prostate cancer
  • Respiratory cancers
  • Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma.

38 C.F.R. § 3.309(e).

Combat

Claimants seeking compensation for conditions that are the result of combat have a reduced evidentiary burden (sometimes called the “combat presumption”).  Where a veteran “engaged in combat with the enemy in active service . . . the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence of aggravation.”  38 U.S.C. 1154(b); see also 38 C.F.R. § 3.304(d) (“Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances . . . of such service even though there is no official record of such incurrence or aggravation”).  Section 1154(b) does not eliminate the need for medical nexus evidence; it merely reduces the burden of presenting evidence of incurrence or aggravation of an injury or disease incurred in or aggravated by combat service.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996).

Even when the combat presumption applies, a “veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.”  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Boyer v. West, 11 Vet. App. 477, 478-79 (1998).  Section 1154(b) does not eliminate the need for evidence of a medical nexus; it merely reduces, for veterans who have engaged in combat with the enemy, the burden of presenting evidence of incurrence or aggravation of an injury or disease in service.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) (“Section 1154(b) does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected.”); Jensen v. Brown, 19 F.3d 1413, 1416-17 (Fed. Cir. 1994); Clyburn v. West, 12 Vet. App. 296, 303 (1999).

Prisoners of War (POWs)

The law identifies certain diseases for which service connection will be rebuttably presumed for a veteran who was a prisoner of war (POW) for not less than 30 days.  See 38 C.F.R. §§ 3.307, 3.309(c).  Conditions subject to presumptive service connection for POWs are listed under 38 U.S.C. section 1112(b)(4).  However, the presumption is rebutted “[w]here there is affirmative evidence to the contrary, or evidence to establish that an intercurrent injury or disease which is a recognized cause of [such disease], has been suffered between the date of separation from service and the onset of [the] disease.”  38 U.S.C. § 1113(a); see also 38 C.F.R. § 3.307(d).

Under 38 U.S.C. section 1112(b), if a veteran was a prisoner of war for 30 days or more, certain diseases, including beriberi, chronic dysentery, malnutrition, and other nutritional deficiencies will be presumed service connected if manifested to a degree of 10% anytime after military service even if there is no record of the disease in service.  38 U.S.C. § 1112(b)(3); see also 38 C.F.R. § 3.309(c)(2)(ii), (“Note” instructing that “For purposes of this section, the term beriberi heart disease includes ischemic heart disease in a former prisoner of war who had experienced localized edema [(swelling)] during captivity.”  59 Fed. Reg. 35464 (1994).  “Ischemic heart disease” is a synonym for “arteriosclerotic heart disease.” Dorland’s Illustrated Medical Dictionary, 30th ed., 528.  Applicable regulations expanded that presumption to apply to atherosclerotic heart disease as well.  38 C.F.R. § 3.309(c)(1). (“Atherosclerotis” is a common form of “arteriosclerotis.”  Dorland’s Illustrated Medical Dictionary, 30th ed., 172.).  Presumptive service connection allows a presumption of service connection for former POWs who suffer from atherosclerotic heart disease and hypertensive vascular disease if manifest to a degree of 10% or more any time after service.  38 C.F.R. § 3.309(c)(1).

Radiation-exposed Veterans

Qualification under the presumptive provision of 38 U.S.C. section 1112(c) occurs when a veteran suffers from one of the fifteen listed cancers, and establishes participation in a “radiation risk activity” defined as:

(i)    Onsite participation in a test involving the atmospheric detonation of a nuclear device.
(ii)   The occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946.
(iii) Internment as prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which (as determined by the Secretary) resulted in an opportunity for exposure to ionizing radiation comparable to that of veterans described in clause (ii) of this subparagraph.

38 U.S.C. § 1112(c)(4)(B); Hardin v. West, 11 Vet. App. 74, 77-78 (1998).  A veteran’s radiation exposure that does not constitute a “radiation-risk activity” as defined by the statute is not entitled to the statutory presumption of service connection in section 1112(c).  Lasovick v. Brown, 6 Vet. App. 141, 146-47 (1994).

Camp Lejeune Presumptive Conditions

Exposure to contaminants in the water supply at Camp Lejeune has resulted in the VA amending its regulations, effective March 14, 2017, to establish presumption of service connection for eight conditions.

From 1953 to 1987, water sources at Marine Corps Base Camp Lejeune were contaminated with industrial solvents that are correlated with health conditions. It has been determined by scientific authorities and health experts that the drinking water at Camp Lejeune was contaminated with perchloroethylene, trichloroethylene, vinyl chloride, benzene and other petroleum contaminants from leaking storage tanks and determined that prolonged exposure to these chemicals increase the risk of certain health conditions.

A presumptive connection is established for the following conditions:

Kidney Cancer – Liver Cancer – Non – Hodgkin Lymphoma – Adult Leukemia – Multiple Myeloma – Bladder Cancer – Parkinson’s Disease – Aplastic Anemia/Myelodysplastic Syndromes

The rule allows Servicemembers with records demonstrating no less than 30 days of service (either consecutive or cumulative) at Camp Lejeune during the specified timeframe, and who have been diagnosed with any of the eight enumerated diseases to be presumed to have a service-connected disability for purposes of entitlement to VA benefits. The rule applies to all military active duty, reserve, and National Guard personnel that meet the requirements of the regulation.

If you have a record of service at Camp Lejeune between August 1, 1953, and December 31, 1987, served there for at least 30 days during that period, and developed a condition that you believe is related to exposure to the drinking water at the base, VA recommends you file a disability compensation claim. VA is also reimbursing certain Veterans’ family members for eligible out-of-pocket medical expenses related to the 15 covered conditions. More information can be found at: https://www.clfamilymembers.fsc.va.gov.

Gulf War Veterans

38 C.F.R. §§ 3.317(c), (e)(1).  The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.  38 C.F.R. § 3.317(e)(2).

A veteran who served in Southwest Asia can be service connected for “undiagnosed illness” without direct evidence of a nexus between hos or her service and the illness. For the purposes of this section, Southwest Asia includes Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, UAE, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above. VA also considers service in Afghanistan to be included.

A veteran having service in any of these areas since August 2, 1990, is considered eligible for presumptive service connection for one or more of the following “manifestations:”

  • An undiagnosed illness;
  • A medically unexplained chronic multisymptom condition (such as fibromyalgia, chronic fatigue syndrome, or irritable bowel syndrome; or
  • One of a list of infectious diseases determined by the VA, which includes leishmaniasis

A veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War is entitled to presumptive service connection for the following conditions:

  • Brucellosis
  • Campylobacter jejuni
  • Coxiella burnetii (Q fever)
  • Malaria
  • Mycobacterium tuberculosis
  • Nontyphoid Salmenella
  • Shigella
  • Visceral leishmaniasis
  • West Nile virus

Finally, for an undiagnosed illness or medically unexplained illness the condition must have manifested itself during service or to a “degree of 10 percent or more during the presumptive period, which is continuing since August 1990. For infectious diseases the presumptive period varies by disease from one year to no time limit.

For “undiagnosed” and “multisymptom” diseases that do not have their own rating tables, the issue of which condition is “similar” to the claimant’s condition can mean the difference between an award and denial. VA is required to explain why they used a particular table and must take into account the claimant’s specific symptoms. Using the wrong rating table can unfairly prevent a 10% rating.

Another common problem is private physicians trying to diagnose something to assist the veteran. A diagnoses, even if only an attempt to narrow the possible causes, does not satisfy the “undiagnosed” condition requirement, as VA as pointed out in many denials. Claimants should discuss the difference between a best guess diagnoses and a diagnoses to a medical certainty if a Gulf War claim is being considered.

Veterans of the Persian Gulf with a health concern are eligible for an examination, whether or not he or she has a current condition. Persons undergoing the examination are added to the VA Persian Gulf War Veterans Health Registry. This registry allows VA to track Persian Gulf Veterans health conditions and, hopefully, detect conditions related to service in that theater that should be added to the presumptive list.

Certain Chronic Diseases

As discussed above, statutes and regulations governing presumptive service connection for chronic diseases, provide that such conditions which manifest within the presumptive period “shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record of evidence of such disease during the period of service.”  38 U.S.C. § 1112(a) (emphasis added); see also 38 C.F.R. §§ 3.307(a)(3), 3.309(a).   The law provides for presumptive service connection for various chronic diseases—designated in section 3.309(a)—if compensable manifestations of the chronic disease occur within one year of discharge from service.  38 C.F.R. § 3.307(a)(3).  Evidence of the existence of a chronic disease during the applicable one-year presumption period allows for an award of service-connection.  See 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a); 3.309(a) (classifying organic heart disease and hypertension as chronic diseases); see also Salong v. Brown, 7 Vet. App. 130, 132 (1994) (doctor’s diagnosis together with statement that appellant had been treated shortly after discharge, sufficient to show development of chronic disease within presumption period).  Only the conditions listed in section 3.309(a) are considered chronic.  38 C.F.R. § 3.307(a).  The Court has stated that hearing loss is not “a chronic disease entitled to any presumption of service connection” under section 3.307(a)(3) and section 3.309(a).  Godfrey v. Derwinski, 2 Vet. App. 352, 354 (1990).

Children of Vietnam Veterans

VA will pay a monthly benefit to an individual suffering from spina bifida whose biological mother or father is or was a Vietnam veteran or a veteran with service in Korea as defined in the regulation.  38 C.F.R. § 3.814(a).  This benefit is available to any “individual” regardless of age or marital status who was conceived after the date on which the veteran first served in Vietnam or Korea during the specified period.  Id. § 3.814(c)(3).  For the purposes of this benefit, spina bifida includes any form except spina bifida occulta.  Id. § 3.814(c)(4).

Monthly benefits are also available for individuals whose biological mother is or was a Vietnam veteran who suffers from a medical condition other than spina bifida.  38 C.F.R. § 3.815(a).  The regulations list 18 specific birth defects eligible for benefits and explicitly state that eligible conditions are “not limited to” those on the list.  38 C.F.R. § 3.815(d)(1).  The regulations also contain several lists of birth defects that are not eligible for benefits.  Id. § 3.815(d)(2)-(8).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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What Disabled Veterans Must Know About Service Connected Medical Conditions

Service Connected Medical Conditions

VA is authorized to compensate eligible individuals only for “service connected” conditions. A service-connected condition is a condition caused by, aggravated by, or the result of, an event during military service or a condition considered service-connected by law (such as Section 1151 claims). As such, “service connection” is a critical concept in VA benefits law. In practice, the determination of service connection can be difficult for VA and frustrating for the veteran. As a result, service connection is one of the most contested issues in the VA claims process.

Establishing service connection generally requires:

  1.  medical evidence of a current disability or condition;
  2.  evidence of an in-service occurrence or aggravation of a disease or injury; and
  3.  medical evidence of either a nexus between the claimed in-service disease or injury and the current disease or injury.

As a practical matter, establishing the existence of a current medical condition or disability is usually straightforward because the condition is often the motivation for filing a claim. A past condition that has been corrected or resolved or the anticipation of a future condition are not current conditions and do not provide a basis for service connection.

Next, the condition must have occurred in or resulted from the veteran’s military service. In most cases, the evidence of the event (wounded by enemy action, training injury) can be found in service records, service medical records, or unit records. Under certain circumstances, a claimant may establish an in-service event by other evidence, such as “buddy statements” or testimony by other service members witnessing the event or private medical records. Whatever the case, VA will also review service medical records to determine if the claimed condition existed when the veteran entered service. If a condition is determined to be “pre-existing” and not aggravated in service, the claim will be denied.

There are also certain “presumptions” regarding specific conditions and in-service events (atomic test participation, agent orange exposure) that may apply. A presumption is when the law assumes an event occurs except when there is evidence that the event actually did not happen. So, for veterans who were exposed to radiation during atomic bomb tests, that radiation is assumed to cause certain diseases. If the veteran now suffers from one of those diseases, he or she does not have to prove the radiation actually caused the disease: VA must accept that the disease as service-connected.

Finally, VA must find a “nexus” (a “connection”) between the current condition and the in-service disease, injury, or event. In practice, most service-connection issues boil down to whether a claimant can establish a nexus. For many medical conditions, such as cancer, it is extremely difficult to connect the current disease to specific events, even when occurrence of the event is not disputed. In such cases, it is especially important for the claimant to obtain strong medical evidence supporting nexus. This is not easy. Providing adequate nexus evidence becomes even more difficult as the time between service and the claim grows.

Although a condition must result from actions “in the line of duty,” service-connected conditions are not limited to “battlefield” wounds or similar injuries. The “in the line of duty” requirement has been broadly interpreted to mean almost anything that occurs during service, including such things as car accidents, sports injuries, and illnesses unrelated to specific military activity. The condition generally need only have occurred or begun during service, including authorized leave periods.

Secondary Service Connection

“Secondary” service connection is awarded when a disability “is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a); Roper v. Nicholson, 20 Vet. App. 173, 181 (2006); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  “Proximate cause” is defined as “[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred.”  BLACK’S LAW DICTIONARY 1225 (6th ed. 1990); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002), rev’d on other grounds by Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003); VA Gen. Coun. Prec. 6-2003, at *3-4, n.4 (Oct. 28, 2003).

Medical Conditions Aggravated by “Service”

VA will compensate claimants for medical conditions that existed at the time of entry into service that were made worse or “aggravated” by service.  The essence of a claim for benefits based on a theory of aggravation is that a claimant’s service caused a worsening of a preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (“[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service connected aggravation of that disorder.”).

An appellant may obtain service connection for aggravation of a preexisting condition under 38 U.S.C. section 1153.  In such a case, “the burden falls on the veteran to establish aggravation.”  Wagner, 370 F.3d at 1096.  If the veteran succeeds in showing aggravation, “the burden shifts to the government to show . . . that the increase in disability is due to the natural progress of the disease.”  Id.  Where there has been an increase in disability during service, the proof that the increase was due to the natural progress of the disease must also be by clear and unmistakable evidence.  38 C.F.R. § 3.306(b).  Therefore, the first task for the Board in evaluating a presumption of aggravation claim is to find whether the appellant has shown an increase in disability during service.  If the Board finds aggravation, the second task is for the Board to consider whether the increased disability is due to the natural progression of the disease.  See Wagner, 370 F.3d at 1096.

Also see the discussion of the “presumption of soundness” as it applies to determining if a medical condition pre-existed service.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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How Willful Misconduct Affects VA Disability Claims

Willful Misconduct

A veteran cannot receive VA compensation for a disability that is the result of willful misconduct.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.1(m), (n), 3.301(a)-(b), (c)(2), (d).  Willful misconduct is broadly defined as “an act involving conscious wrongdoing or known prohibited action [;] … [i]t involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.”  38 C.F.R. § 3.1(n); see Yeoman v. West, 140 F.3d 1443, 1448 (Fed. Cir. 1998) (holding that VA’s willful misconduct regulations were not unconstitutionally void for vagueness); Daniels v. Brown, 9 Vet. App. 348, 351 (1996) (willful misconduct negates statutory presumption that disease or injury was incurred in line of duty (citing 38 U.S.C. § 105(a))); VA Gen. Coun. Prec. 2-93 (January 13, 1993) (discussing origins and subsequent history of willful misconduct prohibition in context of tobacco use) [hereinafter 1993 VAGC Opinion ].

However, a “[m]ere technical violation of police regulations or ordinances will not per se constitute willful misconduct,” and the latter “will not be determinative unless it is the proximate cause of injury, disease or death.”  38 C.F.R. § 3.1(n)(2)-(3).  Moreover, alcohol abuse, a specific type of willful misconduct, is defined as “the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user.”  38 C.F.R. § 3.301(d); see Allen v. Principi, 237 F.3d 1368, 1376-78 (Fed. Cir. 2001); see also 38 C.F.R. § 3.301(c)(2) (“The simple drinking of alcoholic beverage is not of itself willful misconduct [; however] … [i]f, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct.”). The Board may consider state law in interpreting VA’s definition of willful misconduct. Yeoman, 140 F.3d at 1446 (holding that “[t]he Board’s consideration of … state law was a proper part of its interpretation of willful misconduct under the standards mandated by the very regulations defining that term and its relation to drunkenness.”).  The Board’s determination that a disability is the result of willful misconduct is a finding of fact.  Thomas v. Nicholson, 423 F.3d 1279, 1283 (Fed. Cir. 2005).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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How Character of Discharge Affects VA Disability Claims

VA benefits are restricted to veterans discharged or released “under conditions other than dishonorable.” The military services each have several categories of discharge, one of which is “dishonorable.” These categories are not what VA bases a character of service determination: VA has its own unique system.

VA generally accepts “honorable” discharges and discharges “under honorable conditions” as qualifying discharges without further investigation. VA has also determined that a “dishonorable” discharge is not an “other than dishonorable” discharge and so will disqualify a claimant from any VA benefits unless a narrow insanity exception applies. If an individual received a discharge under “other than honorable conditions” or a “bad conduct” discharge, VA will make a special “character of service determination” before further processing a claim. In making this determination VA is supposed to consider the veteran’s entire period of service not just the specific type of discharge. If VA determines that the individual was separated from service under a disqualifying condition, the veteran will be ineligible for compensation benefits, although he or she may still qualify for certain healthcare benefits. A character of service determination can be appealed if unfavorable.

Veterans with multiple periods of active duty may have been discharged with a different character of service for different periods of service. In such a case, the discharge for the period of service to which a medical condition is connected controls eligibility. For example, a veteran with an honorable discharge followed by a dishonorable discharge for two separate periods of service would be eligible for benefits for a condition connected to the first period of service, but not the second.

A veteran with a discharge that does not qualify him or her for compensation benefits may try to “upgrade” the character of the discharge. VA does not change the character of discharge assigned by the service branch. Each service branch has a “Discharge Review Board” (“DRB”) and a “Board for Correction of Military Records” (“BCMR”). Both of these Boards have their own procedures for reviewing cases of veterans looking to change an unfavorable character of discharge and it is beyond the scope of this KNOWLEDGE BOOK to describe the processes. Veterans who believe that their character of discharge was improper or unfair are encouraged to contact an advocate or attorney experienced in the upgrade process.

Regardless of the character of discharge, individuals are not eligible for VA benefits for conditions that result from “willful misconduct” or substance abuse. Willful misconduct includes intentional acts such as self-inflicted injuries to avoid duty or deployment. Health conditions arising from the abuse of illegal drugs or alcohol abuse are also excluded. As questions of willful misconduct are very fact specific, claimants potentially affected by this requirement are encouraged to discuss the matter with an experienced advocate. There is one very important exception to the substance abuse exclusion. An individual is eligible for VA benefits for conditions related to drug or alcohol abuse arising from another allowable service-connected condition. For example, an individual suffering from post-traumatic stress disorder (“PTSD”) as a result of an incident during service can receive benefits for the adverse health effects of alcoholism if the alcoholism is determined to be a result of the PTSD. Alcoholism unrelated to another service-connected condition would not be eligible for compensation.

VA “compensation . . . is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable.”  38 C.F.R. § 3.12(a).  “A discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions[:] . . . An offense involving moral turpitude.  This includes, generally, conviction of a felony.”  38 C.F.R. § 3.12(d)(3).  38 U.S.C. section 101(2) defines a veteran as a person who “was discharged … under conditions other than dishonorable.”

While no statute or regulation generally states that dishonorable conditions are equivalent to conditions other than honorable, section 3.12(d)(4) states as follows:

(d)   A discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions.

. . .

(4)   Willful and persistent misconduct.  This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct.  A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious.

The law, however, contains an exception that “if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person’s court-martial, discharge, or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary.”  38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b).

VA regulations define an insane person as one who, while not mentally defective or constitutionally psychopathic, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.”  38 C.F.R. § 3.354(a); see Zang v. Brown, 8 Vet. App. 246, 253 (1995) (stating that phrase “due to disease” applies to all three circumstances provided in section 3.354(a)); see also VA Gen. Coun. Prec. 20-97 (May 22, 1997) (clarifying VA’s definition of insanity).  Although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis.  Beck v. West, 13 Vet. App. 535, 539 (2000); Zang, 8 Vet. App. at 254-55; 38 C.F.R. § 3.354(a).

When determining whether a veteran was insane at the time of an offense, the rating agency “will base its decision on all the evidence procurable relating to the period involved.”  38 C.F.R. § 3.354(b).  The Court reviews the Board’s factual decision in this regard under the “clearly erroneous” standard of review.  38 U.S.C. § 7261(a)(4); Beck, 13 Vet. App. at 539; Gilbert v. Derwinski, 1 Vet. App. 49, 52-53 (1990).

Acceptance of an undesirable discharge to escape trial by general court-martial is considered a discharge or release “under dishonorable conditions.”  38 C.F.R. § 3.12(d)(1).  Such a discharge generally “is a bar to the payment of benefits.”  38 C.F.R. § 3.12(b).  Further, an honorable or general discharge awarded under the Department of Defense’s special discharge review program (“SDRP”) generally “does not remove any bar to benefits.”  38 C.F.R. § 3.12(h).  When a veteran has multiple periods of service, it is the character of service for the period in which the medical condition arises that determines eligibility.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency