What Disabled Veterans Should Know About VA Changes About PTSD Claims

PTSD

Posttraumatic Stress Disorder (PTSD) is now included in a new chapter in DSM-5 on Trauma and Stressor Related Disorders.   In  the DSM-IV PTSD was addressed as an Anxiety disorder.

The diagnostic criteria for the manual’s next edition identify the trigger to PTSD as exposure to actual or threatened death, serious injury or sexual violation. The exposure must result from one or more of the following scenarios, in which the individual:

  • – directly experiences the traumatic event;
  • – witnesses the traumatic event in person;
  • – learns that the traumatic event occurred to a close family member or close friend (with the actual or threatened death being either violent or accidental); or
  • – experiences first-hand repeated or extreme exposure to aversive details of the traumatic event (not through media, pictures, television or movies unless work-related).

The disturbance, regardless of its trigger, causes clinically significant distress or impairment in the individual’s social interactions, capacity to work or other important areas of functioning. It is not the physiological result of another medical condition, medication, drugs or alcohol.

Changes

DSM-5 pays more attention to the behavioral symptoms that accompany PTSD and proposes 4 distinct diagnostic clusters instead of 3.  They are described as re-experiencing, avoidance, negative cognitions and mood and arousal.

Re-experiencing covers spontaneous memories of the traumatic event, recurrent dreams related to it, flashbacks or other intense or prolonged psychological distress. Avoidance refers to distressing memories, thoughts, feelings or external reminders of the event.

Negative cognitions and mood represents myriad feelings, from a persistent and distorted sense of blame of self or others, to estrangement from others or markedly diminished interest in activities, to an inability to remember key aspects of the event.

Finally, arousal is marked by aggressive, reckless or self-destructive behavior, sleep disturbances, hyper-vigilance or related problems. The current manual emphasizes the “flight” aspect associated with PTSD; the criteria of DSM-5 also account for the “fight” reaction often seen.

The number of symptoms that must be identified depends on the cluster. DSM-5 would only require that a disturbance continue for more than a month and would eliminate the distinction between acute and chronic phases of PTSD.

PTSD Debate within the Military

Certain military leaders, both active and retired, believe the word “disorder” makes many soldiers who are experiencing PTSD symptoms reluctant to ask for help. They have urged a change to rename the disorder posttraumatic stress injury, a description that they say is more in line with the language of troops and would reduce stigma.

But others believe it is the military environment that needs to change, not the name of the disorder, so that mental health care is more accessible and soldiers are encouraged to seek it in a timely fashion. Some attendees at the 2012 APA Annual Meeting, where this was discussed in a session, also questioned whether injury is too imprecise a word for a medical diagnosis.

In DSM-5, PTSD will continue to be identified as a disorder.

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 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 Must Know About Special Rules For Certain Claims

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. See a full list of Polytrauma Points of Contact in the attached PDF.

PTSD

Posttraumatic Stress Disorder (PTSD) is now included in a new chapter in DSM-5 on Trauma and Stressor Related Disorders.   In  the DSM-IV PTSD was addressed as an Anxiety disorder.

The diagnostic criteria for the manual’s next edition identify the trigger to PTSD as exposure to actual or threatened death, serious injury or sexual violation. The exposure must result from one or more of the following scenarios, in which the individual:

  • – directly experiences the traumatic event;
  • – witnesses the traumatic event in person;
  • – learns that the traumatic event occurred to a close family member or close friend (with the actual or threatened death being either violent or accidental); or
  • – experiences first-hand repeated or extreme exposure to aversive details of the traumatic event (not through media, pictures, television or movies unless work-related).

The disturbance, regardless of its trigger, causes clinically significant distress or impairment in the individual’s social interactions, capacity to work or other important areas of functioning. It is not the physiological result of another medical condition, medication, drugs or alcohol.

Changes

DSM-5 pays more attention to the behavioral symptoms that accompany PTSD and proposes 4 distinct diagnostic clusters instead of 3.  They are described as re-experiencing, avoidance, negative cognitions and mood and arousal.

Re-experiencing covers spontaneous memories of the traumatic event, recurrent dreams related to it, flashbacks or other intense or prolonged psychological distress. Avoidance refers to distressing memories, thoughts, feelings or external reminders of the event.

Negative cognitions and mood represents myriad feelings, from a persistent and distorted sense of blame of self or others, to estrangement from others or markedly diminished interest in activities, to an inability to remember key aspects of the event.

Finally, arousal is marked by aggressive, reckless or self-destructive behavior, sleep disturbances, hyper-vigilance or related problems. The current manual emphasizes the “flight” aspect associated with PTSD; the criteria of DSM-5 also account for the “fight” reaction often seen.

The number of symptoms that must be identified depends on the cluster. DSM-5 would only require that a disturbance continue for more than a month and would eliminate the distinction between acute and chronic phases of PTSD.

PTSD Debate within the Military

Certain military leaders, both active and retired, believe the word “disorder” makes many soldiers who are experiencing PTSD symptoms reluctant to ask for help. They have urged a change to rename the disorder posttraumatic stress injury, a description that they say is more in line with the language of troops and would reduce stigma.

But others believe it is the military environment that needs to change, not the name of the disorder, so that mental health care is more accessible and soldiers are encouraged to seek it in a timely fashion. Some attendees at the 2012 APA Annual Meeting, where this was discussed in a session, also questioned whether injury is too imprecise a word for a medical diagnosis.

In DSM-5, PTSD will continue to be identified as a disorder.

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).

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How VA Compensates Disabled Veterans With Special Monthly Compensation (SMC)

Special Monthly Compensation (SMC)

Special Monthly Compensation (SMC) is available when, ‘as the result of service-connected disability,’ a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.”  Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114(k)–(s)).  The Board’s determination as to whether a veteran is entitled to SMC is a finding of fact that the Court reviews under the “clearly erroneous” standard of review.  Id. (citing Prejean v. West, 13 Vet. App. 444, 447 (2000); Turco v. Brown, 9 Vet. App. 222, 224 (1996)).  Section 1114( l ) provides, in pertinent part:  if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance, the monthly compensation shall be $3,075.  38 U.S.C. § 1114(l).

While a scheduler rating depends on the severity of a condition, SMC for loss of use does not depend on the degree of loss, except that the loss of use must be permanent. The more seriously disabled veteran may be eligible for SMC payments for combinations of anatomical loss or loss of use. In addition, severely disabled veterans may be awarded further compensation for regular aid and attendance needs and for permanent housebound conditions. As SMC has many possible combinations and involves a significant amount of additional compensation, it is recommends that severely injured veterans get help in filing their SMC claims from someone experienced in such cases.

In addition to compensation based on the degree of disability, Congress has also authorized additional compensation for certain disabilities. This “special monthly compensation” (“SMC”) is intended to compensate claimants for service-connected conditions that involve loss of use or anatomical loss (amputation) of body parts, such as hands or feet, or loss of hearing or sight. SMC can result in significantly more monthly compensation for severely injured veterans.

VA has promulgated regulations implementing section 1114 relevant to the determination of whether a veteran “is so helpless as to be in need of regular aid and attendance are contained in § 3.352(a).”  38 C.F.R. § 3.350(b)(3); see 38 C.F.R. § 3.351(c)(3) (providing that a claimant is entitled to SMC based on the need for aid and attendance by establishing “a factual need for aid and attendance under the criteria set forth in [38 C.F.R. § 3.352(a)].”).

The Court has held that the order in which disabilities are service connected is not relevant to VA’s determination of a claimant’s eligibility for special monthly compensation under 38 U.S.C. section 1114(s).  Whenever a veteran has a total disability rating, schedular or extraschedular, based on multiple disabilities and the veteran is subsequently awarded service connection for any additional disability or disabilities, VA’s duty to maximize benefits requires VA to assess all of the claimant’s disabilities without regard to the order in which they were service connected to determine whether any combination of the disabilities establishes entitlement to special monthly compensation under section 1114(s).  If, after such an assessment, VA determines that the claimant is entitled to special monthly compensation, the effective date of the award of special monthly compensation will be the effective date assigned for the award of benefits for the final disability that forms the relevant combination of disabilities.  Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010), as amended (Apr. 21, 2011).

Levels of SMC Ratings 

Each level of SMC ratings are successive and are preceded by an entitlement to certain conditions included under SMC(K).  The basic elements of Special Monthly Compensation ratings include:

  • anatomical (or physical) loss or the loss of use (Loss of use from neurological, muscular, vascular, contractures, etc.)  of one or more of the following:
    • limbs,
    • hands,
    • feet
    • reproductive organs;
  • aphonia (loss of voice);
  • deafness;
  • blindness;
  • loss of bowel and bladder control;
  • being permanently housebound;
  • and a need for regular aid and attendance with activities of daily living or a higher level of care–all of which must be a result of the veteran’s service-connected disabilities.

A rating of SMC (K) would include: 

  • The anatomical loss or loss of use (Loss of use from neurological, muscular, vascular, contractures, etc.) of:
    • one hand.
    • one foot.
    • both buttocks (where the applicable bilateral muscle group prevents the individual from maintaining unaided upright posture, rising and stooping actions).
    • one or more creative organs used for reproduction (absence of testicles, ovaries or other creative organ, ¼ loss of tissue of a single breast or both breasts in combination) due to trauma while in service, or as a residual of a service-connected disability(ies). NOTE: these do not serve as eligible prerequisite conditions for the higher levels of SMC.
    • One eye (loss of use to include specific levels of blindness).
  • Complete organic aphonia (constant loss of voice due to disease)
  • Deafness of both ears to include absence of air and bone conduction.

A rating of SMC(L) would include:

  • The anatomical loss or loss of use of:
    • Both feet,
    • One hand and one foot
  • Blindness in both eyes with visual acuity of 5/200 or less.
  • Permanently bedridden.
  • Regular need for aid and attendance to assist with activities of daily living such as dressing oneself, tending to personal hygiene, care and adjustment of assistive appliances or prosthetics, feeding oneself, and the like. (specific criteria is established in 38 CFR § 3.352(a)) (NOTE: If such services are not being provided at the expense of the U.S. Government due to hospitalization).

Ratings above the SMC(L) level to include SMC(M), SMC(N), SMC(O), SMC(P), SMC(R) and SMC(S) are specialized multifaceted levels which are based on various specific combinations of anatomical loss or loss of use of designated extremities and/or senses, together with seriously disabling conditions and particular degrees of aid and attendance requirements, housebound or bedridden statuses deemed medically necessary, and explicit service-connection ratings. These levels also outline various requirements to include full and half step upgraded SMC level ratings. The conditions providing the basis of these levels are as follows.

A rating of SMC(M) would include:

  • The anatomical loss or loss of use of (neurological loss):
    • Both hands,
    • Both legs at the region of the knee
    • One arm at the region of the elbow with one leg at the region of the knee
  • Blindness in both eyes having only light perception.
  • Blindness in both eyes resulting in the need for regular aid and attendance.

A rating of SMC(N) would include:

  • The anatomical loss or loss of use of both arms at the region of the elbow.
  • The anatomical loss of both legs so near the hip that it prevents the use of a prosthetic appliance.
  • The anatomical loss of one arm so near the shoulder that it prevents the use of a prosthetic appliance along with the anatomical loss of one leg so near the hip that it prevents the use of a prosthetic appliance.
  • The anatomical loss of both eyes or blindness in both eyes to include loss of light perception.

A rating of SMC(O) would include:

  • The anatomical loss of both arms so near the shoulder that it prevents the use of a prosthetic appliance.
  • Bilateral deafness rated at least 60 percent disabling along with service-connected blindness with visual acuity of 20/200 or less of both eyes.
  • Complete deafness in one ear or bilateral deafness rated at least 40 percent disabling along with service-connected blindness in both eyes to include loss of light perception.
  • Paraplegia – paralysis of both lower extremities along with bowel and bladder incontinence.
  • Helplessness due to a combination of anatomical loss or loss of use or two extremities with deafness and blindness or a combination of multiple injuries causing severe and total disability.

A rating of SMC(P) would include:

  • The anatomical loss or loss of use of a leg at or below the knee along with the anatomical loss or loss of use of the other leg at a level above the knee.
  • The anatomical loss or loss of use of a leg below the knee along with the anatomical loss or loss of use of an arm above the elbow.
  • The anatomical loss or loss of use of one leg above the knee and the anatomical loss or loss of use of a hand.
  • Blindness in both eyes meeting the requirements outlined in SMC (L), (M) or (N) levels.

A rating of SMC(R):

Ratings under SMC(R) are assigned for seriously disabled veterans in need of advanced levels of aid and attendance.

SMC(R) ratings require a minimal combination of entitlement to both SMC(O) and SMC(L). Additionally, Veterans in receipt of SMC rates based on Aid and Attendance are strongly advised to contact their service representative and/or VA Regional Office should they become hospitalized at the expense of the U.S. Government (i.e. a VA medical facility) as failure to do so could create an overpayment of monetary benefits.

A rating of SMC(S):

Ratings under SMC(S) are also available if the veteran is permanently housebound. The VA defines “permanently housebound” as being substantially (as opposed to completely) confined to a dwelling as the result of service-connected disability and it is reasonably certain that that such disability will continue throughout the veteran’s lifetime. These kinds of determinations should be made by a physician, whose written opinions or reports in this respect would serve as the best evidence to submit in support of a claim for “s” SMC benefits.

A rating of SMC(T):  Traumatic Brain Injury

Ratings under SMC(T) are available to veterans who need regular aid A&A for residuals of Traumatic Brain Injury (TBI), but is not eligible for a higher level of A&A under (R)(2), and would require hospitalization, nursing home care, or other residential institutional care in absence of regular in-home aid and attendance.

What Disabled Veterans Must Know About Schedular Rating 100%-Temporay Disability Rating

Temporary 100% Disability Rating

There are three types of temporary disabiltiy ratings:

  • Prestabilization Ratings
  • Total Ratings for Service-Connected Disability Requiring Hospitalization
  • Convalescence Rating (TDCC)

Prestabilization Ratings:

  • Prestabilization Rating of 100% is for Veterans who have experienced, during active, an unstable condition resulting in a severe disability that renders gainful employment either not feasible or adviseable.  Such conditions would include: residuals resulting from a head injury or gunshot wound residuals.
  • The VA is not allowed to assign a 100% prestabilization rating if the Veteran’s case warrants a 100% regular rating.
  • Assigned immediately after discharge from the military and continues for 12 months after discharge.
  • During the 12 months, the Prestabilized rating can change to a “another rating authorizing a greater benefit” if the change would be a better benefit for the Veteran.
  • There must be a VA exam of the Veteran between the 6 month and the 12 month. following discharge.  If the exam calls for a reduction in benefits, the VA can not make the reduction until the end of 12 month period.

Total Ratings for Service Connected Disabilities Requiring Hospitalization

  • The condition must be service-connected.
  • The period of hospitalization or observation must exceed 21 days.
  • The Increased rating starts on the first day of continuous hospitalization and ends on the last day of the month of hospital discharge.
  • If hospialization occurs for a non-service connected condition and during the hospitalization a service connected disability is treated for over 21 days, then the 100% can be granted.

Convalescence Rating (TDCC) :

  • Three circumstances for TDCC:
    • The Veteran has surgery that requires 1 month of convalescence, or
    • The Veteran’s surgery has resulted in severe postoperative residuals,or
    • The Veteran has a major joint immobilzed by a cast.
  • Convalescence for Mental Disorder:
    • Veteran must have a service connected mental disorder
    • Hospitalized for at least 6months for the service connected mental disorder
    • Convalescent rating will last for 6 months after hospital discharge.  This rating is protected under 38 C.F.R. 3.105(e)
  • Benefit is for up to a year.
  • The conditions must be service connected and the medical documentatin indicates that the Veteran needs time to convalesce after hospital discharge or outpatient release.
  • Home Confinement is not necessary. Ruling from  Felden v. West, defines convalescence as ” the act of regaining or returning to a normal or healthy state after a surgical operation, or injury”  Medical documentation is necessary.  If Veteran’s doctor prescribes: “Do not return to work for 12 weeks”, then the CAVC has ruled that the note establishes 12 weeks of convalescence.

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 Veterans Must Know About Schedular Ratings for Compensation

As discussed earlier, the VA compensation system is based on a “schedule” which assigns a numerical value to medical conditions from 0% to 100% in 10% increments. These “schedular ratings” are intended to represent the average percentage of impact on a veteran’s employability from service-connected conditions. The smaller the impact from the condition or conditions, the lower the rating and the smaller monthly benefit paid to the veteran. A 100% rating, in theory, is granted when the service-connected condition or conditions prevent a veteran from holding any gainful employment.

A 100% rating, however, does not mean that a claimant cannot work or has to quit his or her job. It only means that Congress has established that the rated condition would affect the average individual’s ability to hold gainful employment. The same is true for other rating levels. The average person is considered, the specific claimant may actually be affected more or less. In any event, the claimant is not penalized for working with a schedular rating. This is not true for a total disability rating based on individual unemployability discussed in the next section.

Once a veteran has been awarded service connection for a disease or disorder, VA will assign the veteran an appropriate disability rating after referring to the schedule of ratings for reductions in earning capacity for the specific injury or disability.  See 38 U.S.C. § 1155.  The rating is based, as far as practicable, upon the average impairments of earning capacity, in civil occupations, resulting from such injuries.  Id.  The Secretary has promulgated regulations to implement assignment of an appropriate disability rating.  See generally 38 C.F.R. Part. 4.

After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is  suffering.  See, e.g., 38 C.F.R. § 4.126.  Where there is a question as to which of two evaluations to apply, the Board will assign the higher rating if a veteran’s disability more closely resembles the criteria for the higher rating; otherwise the lower rating will be assigned.  See 38 C.F.R. § 4.7; see also, e.g., Mauerhan v. Principi, 16 Vet. App. 436, 440-41 (2002) (discussing PTSD rating issues).

The amount of VA compensation due to a claimant is determined by evaluation of the disability or disabilities resulting from diseases and injuries encountered as a result of or incident to military service.  38 C.F.R. § 4.1.  “VA’s rating schedule is constructed for the purpose of establishing levels of disability for compensation purposes based upon ‘average impairment in earning capacity’ resulting from particular injuries or diseases.”  Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011); Hensley v. Brown, 5 Vet. App. 155, 162 (1993) (quoting 38 U.S.C. § 1155); 38 C.F.R. § 4.1.  VA regulations also caution that “it is not expected . . . that all cases will show all the findings specified in the [applicable disability code].”  38 C.F.R. § 4.21.

The Court has held that the symptoms listed in the disability codes are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.”  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2006).  The Court concluded that “any suggestion that the Board was required, in complying with the regulation, to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation.”  Id. The Board is required to “consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment,” not just those listed in the regulation.  Id. at 443.

Further, “functional loss due to pain” should be rated and evaluated separately because the Diagnostic Codes do not “contemplate the functional loss resulting from pain on undertaking motion.”  DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995); see also Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (describing the holding in DeLuca as “requir[ing] that the disabling effect of painful motion be considered when rating joint disabilities”).  However, “pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss.”  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  “Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability ‘to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.'”  Id. (quoting 38 C.F.R. § 4.40).

The Court “may not review the schedule of ratings for disabilities” adopted by the Secretary.  38 U.S.C. § 7252(b).  “The [rating] schedule consists of both the ratings and the injuries for which the ratings are provided[, and] [t]he Secretary’s discretion over the schedule, including procedures followed and content selected, is insulated from judicial review with one recognized exception limited to constitutional challenges.”  Wanner v. Principi, 370 F.3d 1124, 1131 (Fed. Cir. 2004).  The Federal Circuit further noted that “review of the content of the rating schedule is indistinguishable from review of ‘what should be considered a disability.'”  Id.see also Byrd v. Nicholson, 19 Vet. App. 388, 392-94 (2005) (holding that the Court could not hear the appellant’s challenge that periodontal disease should constitute a disease for VA compensation purposes because it would require the Court to review the content of the rating schedule).

In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that VA should not limit a claim to only the disability identified by the claimant. The Court found in Clemons that although the appellant’s original claim “identifie[d] PTSD without more,” the “breadth of the claim” was not limited to PTSD but also included “anxiety disorder [not otherwise specified] and schizoid disorder, which ar[o]se from the same symptoms for which he was seeking benefits.”  Clemons, 23 Vet. App. at 5.  The Court held that “as a self-represented layperson at the time his claim was filed, the appellant neither had the legal or medical knowledge to narrow the universe of his claim or his current condition to PTSD.”  Id. at 6.  Rather than “limit[ing] its consideration of the claim based on the appellant’s belief that he suffered from PTSD” the Court held that the Board should also have inquired into the appellant’s “currently diagnosed mental conditions that are different from his lay hypothesis in his claim form.”  Id. at 7.  In determining the scope of the appellant’s claim, the Board has to analyze “the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.”  Id.

Where a condition is rated by analogy, the Board has a heightened duty to provide a thorough statement of reasons or bases.  Suttman v. Brown, 5 Vet. App. 127, 134 (1993).

Schedular Rating 100%-Total and Permanent

If any one of the Veteran’s disabilities qualifies for a 100 percent rating under the rating schedule, the total disability requirement for pension is satisfied.   Under VA disability compensation only service-connected disabilities are considered for the total and permanent rating.

Compensation Rates

Compensation rates are established by Congress. The VA compensation system is based on the rated percentage of disability (“scheduler rating”) and not on the rank of the veteran at time of discharge. At present, a senior officer and a junior enlisted who are each rated as 30% disabled each will receive the same amount of compensation per month from VA.

At one time the amount of VA benefits payable for the same condition was different depending on whether the veteran served in a time of war or not. Under the current payment schedule, compensation benefits for both classes of veterans are the same. So veterans with the same percent rated disability today receive the same monetary compensation regardless of when they served. [link to 38 USC 1110 v. 1131]

38 U.S.C. section 1114 sets forth the compensation rates for all awards of disability compensation, whether based on a new claim or a claim retroactively granted on the basis of CUE in a prior VA decision.  When the rates are set by Congress, they have a specific effective date and remain in effect until they are changed.  Nothing in the statute provides for payment of a higher rate when the payments are retroactive, and the Court cannot find any intent for payment at the higher rate without a clear, explicit waiver of the Government’s sovereign immunity from the payment of interest.  38 U.S.C § 1114; see also Smith v. Principi, 281 F.3d 1384, 1387 (Fed. Cir. 2002) (“waiver of the no-interest rule must be express”).  Further, the suggestion that section 1114 requires that an award of retroactive benefits must be calculated at the rate in effect at the time of payment was expressly rejected by the Federal Circuit in Sandstrom v. Principi, 358 F.3d 1376, 1380 (Fed. Cir. 2004).

Thus, a claimant is not entitled to receive an amount not authorized by Congress during a particular time frame.

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 Must Know About Rating Reductions

There are circumstances where the VA can reduce your disability benefits. When the VA proposes to reduce a Veteran’s disability compensation, it is of the upmost importance that the Veteran act quickly by seeking the services of either an aggressive Veterans Service Organization or an Attorney accredited by the VA.   The law is very clear that to assist a Veteran in the preparation, presentation, and prosecution of a claim for VA benefits, the individual must be accredited by the VA as an agent, attorney, or representative of a Veterans Service Organization, VSO, 38 U.S.C. §§ 5901-5902, 5904; 38 C.F.R. § 14.629.   There is a one time only exception for a non-accredited individual to assist a Veteran in processing a claim under 38 C.F.R. § 14.630.

To verify the VA accreditation of an Attorney, Claims Agent, or VSO Representative, go to website:  http://www.va.gov/ogc/apps/accreditation/

Some of the most common reasons for the reduction of you VA disabiltiy Compensation are:

  I.   Failure to Report for the “Pre-Reduction” Examination.

 II.  Unprotected Benefit Rating and Your Condition Improves

An Unprotected Benefit Rating is when your disability rating is above the minimum for the disability but below the 100% rating and you have been receiving the rating for less than five (5) years.

When reducing a total disability rating based on the severity of an appellant’s condition, the burden falls on VA to show “material improvement” in the veteran’s condition from the time of the previous rating examination that assigned the appellant’s 100% disability rating.  Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Hohol v. Derwinski, 2 Vet. App. 169, 172 (1992); see also Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992); 38 C.F.R. § 3 .343(a).  The reduction must be based on “[e]xamination reports showing material improvement[, which] must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life.”  38 C.F.R. § 3.343(a).

Pursuant to 38 C.F.R. section 3.105(e), when the RO determines that a rating reduction is warranted, it is required to issue a proposed rating reduction, setting forth the reasons for the proposed reduction, and to allow the veteran a period of at least 60 days to submit additional evidence to show that the rating should not be reduced.  Furthermore, when, after such period, the RO issues a decision reducing the rating, that reduction does not become effective until the “[l]ast day of [the] month following 60 days after notice to [the] payee” of the reduction decision.  38 C.F.R. § 3.400(r); see 38 C.F.R. § 3.105(e).  The effect of sections 3.105(e) and 3.400(r) combined is that a rating reduction cannot be made effective for a minimum of 120 days after it is proposed in writing to the veteran.  Brown (Kevin) v. Brown, 5 Vet. App. 413, 418 (1993).

An important right that can easily be overlooked in the notice of a proposed reduction (because VA buries it in the notice), is the right for a “pre-determination hearing” under 38 C.F.R. section 3.105(i).  A claimant has a right to this hearing if he or she requests it within 30 days of the notice of proposed reduction.  Requesting a pre-determination is important because VA cannot implement the proposed reduction until after the hearing and it reaches a decision based on the evidence and the hearing.  In practice, this means that a claimant can delay a reduction and continue to receive full payments for some months in order to obtain evidence or assistance.

There is a risk, however, in continuing to receive full benefit payments under these circumstances.  Should the VA still conclude that a reduction is appropriate, it will create a debt against the veterans for the “overpayments” during the time waiting for the pre-determination hearing and decision.  This means that a veteran can end up with lower benefits payments andowe the VA a large sum.  Veteran’s requesting a pre-determination hearing are, therefore, strongly urged to be careful with their finances until the reduction issue is finally decided

In every rating reduction case, the Board must “ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.”  Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (requirements “operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition”); 38 C.F.R. §§ 4.1, 4.2, 4.13.  Where the Court concludes that the Board has reduced a veteran’s rating without observing applicable laws and regulation, such a rating is void ab initio and the Court will set it aside as “not in accordance with the law.”  38 U.S.C. § 7261(a)(3)(A); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); see Brown, 5 Vet. App. at 422; Horowitz v. Brown, 5 Vet. App. 217 (1993).

When determining whether VA was justified in reducing a veteran’s disability rating that has continued at the same level for five or more years, “the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted.”  Sorakubo v. Principi, 16 Vet. App. 120, 123–24 (2002) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)); see also Kitchens v. Brown, 7 Vet. App. 320, 325 (1995) (holding that when the regional office reduces a veteran’s rating without observing the applicable VA regulations, the reduction is void).  The regulatory requirements for reducing a disability rating that has continued at the same level for five years or more are more stringent than the general requirements for increasing or decreasing a disability rating that has been in effect for a shorter amount of time.  See 38 C.F.R. §§ 3.344(a)-(c); Collier v. Derwinski, 2 Vet. App. 247, 249–50 (1992).  “Such disabilities are considered ‘stabilized,’ and the regulation thus requires a high degree of accuracy in decisions reducing those ratings.”  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (citing 38 C.F.R. § 3.344(c)).  In addition, certain regulations “are applicable to all rating reductions regardless of whether the rating has been in effect for five years or more as required by section 3.344(c),” including 38 C.F.R. sections 4.1, 4.2, 4.10, and 4.13.  Brown, 5 Vet. App. at 420.

Pursuant to sections 4.1, 4.2, and 4.13, VA is required in any rating-reduction case “to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.”  Brown, 5 Vet. App. at 421; see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (such requirements “operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition”).  In addition, “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.”  Brown, 5 Vet. App. at 421; see also 38 C.F.R. §§ 4.2, 4.10.

The Court has specifically required VA to follow its own regulations when it attempts to reduce a veteran’s rating.  See Fugere v. Derwinski, 1 Vet. App. 103 (1990) (holding that VA was required to give notice and opportunity to be heard prior to deleting provision of VA Adjudication Procedure Manual M21–1MR that had provided regulatory-like procedural protections prior to reducing veteran’s rating, and noting: “Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.” (citations omitted)), aff’d, 972 F.2d 331 (Fed. Cir. 1992).  The Court determines de novo whether VA has followed and applied its own regulations in reducing or terminating VA benefits.  See Wilson (Merritte) (making determination de novo without so stating) and Fugere (same), both supra; Brown (Kevin) v. Brown, 5 Vet. App. 413, 416–21 (1993) (same); cf. Buzinski, supra (reviewing de novo compliance with VA regulation regarding mortgage foreclosure).

If VA affords to a veteran the applicable procedural protections and nonetheless determines that a reduction in rating is warranted, the determination as to the degree of disability under the applicable diagnostic code is a finding of fact subject to the “clearly erroneous” standard of review.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Faust v. West, 13 Vet. App. 342, 348 (2000).

In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of section 3.105(e) apply but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence.  If a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, the veteran’s rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months.  For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment.  38 C.F.R. §§ 3.343(a), (c); Faust v. West, 13 Vet. App. 342, 352 (2000).

There is a clear distinction between a claim challenging a reduction in a schedular rating and one involving a claim for a restoration or an increase in a schedular rating.  See Peyton v. Derwinski, 1 Vet. App. 282 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  “The initial procedural burden regarding proposed rating reductions [pursuant to section 3.343(a) ] … falls squarely on the VA to show material improvement from the previous rating examination that had continued a veteran’s 100% disability rating.”  Ternus v. Brown, 6 Vet. App. 370, 376 (1994).  “[T]he circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary.”  Dofflemyer, 2 Vet. App.at 280.

That the Court has jurisdiction to review the BVA’s failure to decide the improper reduction claim is clear.  See 38 U.S.C. § 511(a) (“The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary to veterans …”); In the Matter of Fee Agreement of Smith, 10 Vet. App. 311 (1997) (BVA failure to adjudicate veteran’s claims properly before it was a final adverse decision with respect to that claim); Suttmann v. Brown, 5 Vet. App. 127, 133 (1993) (Board erred in failing to adjudicate a claim reasonably raised to it); see also Carpenter v. Gober, 11 Vet. App. 140 (1998) (an implied claim which is not reviewed by the BVA is considered a denial).  Thus, while the Court may not review nonfinal BVA decisions to remand, it clearly may—indeed, must—review claims explicitly or implicitly raised by the appellant and not adjudicated by the BVA.

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 Veterans Must Know About Schedular Rating 100%-TDIU or Indiviual Unemployability

Schedular Rating 100%-TDIU or Indiviual Unemployability

In some cases, however, a veteran with less than a 100% scheduler rating is so affected by service-connected conditions that he or she cannot work at gainful employment. The law allows for another type of claim in such a case.

VA benefits are available to compensate a veteran at the 100% level if he or she is not able to work because of service-connected conditions even without a 100% schedular rating. This benefit is called “total disability on the basis of individual unemployability”, (“TDIU”), or sometimes “individual unemployability, ” (“IU”).

The key issue in a TDIU claim is the inability of the veteran to engage in “substantially gainful employment” because of his or her service-connected conditions. “Substantially gainful employment” means to hold a job that pays at least an amount equal to the annual poverty level set by the federal government. In order to qualify for TDIU benefits, a claimant must meet the following requirements:

  1. If the claimant has only one service-connected condition, that condition must be schedular rated at least 60% or more;
  2. If the claimant has two or more service-connected conditions, at least one of those conditions must be rated at 40% or more, and the veteran’s combined disability rating must be 70% or more; and
  3. In either case, the veteran must be unemployable because of his or her service-connected conditions.

To establish “unemployability” or “inability to substantially maintain gainful employment”, the Veteran must provide:

  1. evidence of unemployment due to service-connected conditions, employment history records for example, and
  2. medical evidence that the veteran’s service-connected condition renders him or her totally disabled and unemployable, generally a doctor’s opinion letter.

Having a paying job does not automatically disqualify a claimant from a TDIU award.  If the wages are considered “marginal” (low paying) or “sheltered” (protected from usual requirements) employment are exceptions to the TDIU qualification requirements.  Examples of employment that are allowed under TIDU:

  • A job that pays substantially less than the prevailing poverty level,
  • A job that is protected from requirements that someone else in that position would be expected to satisfy, or
  • A job working for a friend or relative, may not be “substantially gainful employment.”

Although it is always better to submit a specific claim for TDIU.  The VA has a duty to look for potential TDIU claims based on the evidence in the claimant’s VA claims file, known as a “C-file”. The VA is required to review the claims for TIDU, even if not specifically requested by the Veteran, because entitlement to TDIU is part of every claim for disability compensation. Upon reviewing the claim, the VA determines if TDIU is an appropriate award for the claim.  Evidence of unemployability can be submitted after an initial decision denying TDIU, if while a claim for schedular benefits is still being processed.

As with most VA benefits, TDIU is not a permanent benefit. The VA can require a claimant undergo periodic medical examinations to confirm that the claimant remains unable to work due to a service-connected condition. And, as with all VA examinations, a failure to report for a scheduled examination can result in suspension or termination of a TDIU benefit.

In addition, since a TDIU award is also based on “unemployability,” the VA can  periodically request employment information from a claimant receiving TDIU benefits. The VA will also cross check employment earnings with the IRS.

The TDIU rating could be terminated and the claimant could be liable to repay VA for the TDIU benefits paid since that employment began, if:

  1. the VA becomes aware that a claimant is working at a job that is not marginal or sheltered,
  2. A claimant must also be careful in performing volunteer work because the nature and time spent at unpaid work shows that a claimant could be employed and  is no longer unemployable.

If a Veteran is determined to be employale, the TDIU award can and will probably be revoked. When a TDIU rating is revoked, a claimant’s benefits go back to the amount of compensation payable under the scheduler rating and the VA can make the Veteran repay the TDIU award.

Additional Information:

Although it is best to make an explicit claim for TDIU if a claimant believes he or she is eligible, it is no longer required.  Potential entitlement to TDIU is part of every claim for disability compensation.  See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (TDIU “is part and parcel of the determination of the initial rating for [a] disability”).  It is now well established that the Board must consider “whether a TDIU award is warranted whenever a pro se claimant seeks a higher disability rating and submits cogent evidence of unemployability, regardless of whether he states specifically that he is seeking TDIU benefits.”  Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (citing Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001)); see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (same).  “[A] request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as a part of the initial adjudication of a claim or . . . as a part of a claim for increased compensation.”  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also Floyd v. Brown, 9 Vet. App. 88, 96 (1996) (the question of an extraschedular rating is a component of the appellant’s claim for an increased rating).  A request for a higher disability rating and evidence indicating that the claimant’s ability to work was “significantly impaired” by his or her service connected conditions reasonably raises the issue of entitlement to TDIU as an alternative basis for increased compensation.  Id.

VA regulations provide two methods by which TDIU may be granted.  Under the first, TDIU may be assigned to a claimant who is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities” provided that he has received a disability rating of 60% or greater, or, if he is service-connected for two or more disabilities, at least one of those disabilities has been assigned a disability rating greater than 40%, and the combined disability rating for all disorders is at least 70%.  38 C.F.R. § 4.16(a).  If the claimant does not meet these schedular TDIU requirements, a TDIU rating may still be obtained by referral to the director of Compensation and Pension Service for extraschedular consideration when the claimant is unemployable by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).

38 C.F.R. section 3.321(b)(1) provides an alternative method of referring a case for extraschedular consideration when a claimant demonstrates an “exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards.”  Extraschedular consideration under section 3.321(b) is not the same as TDIU under section 4.16(b) because sections 4.16(b) and 3.321(b)(1) are not interchangeable.  See Kellar v. Brown, 6 Vet. App. 157, 162 (1994) (“the effect of a service-connected disability appears to be measured differently” by the two regulations).  Section 4.16(b) requires evidence of unemployability, while § 3.321(b)(1) requires only “marked interference with employment,” which is a somewhat less severe standard.  See Thun v. Peake, 22 Vet. App. 111, 117 (2008); see also Stanton v. Brown, 5 Vet. App. 563, 564-70 (issue of extraschedular rating is separate from issue of TDIU rating).  In other words, a claimant need not demonstrate total unemployability to obtain a section 3.321(b) extraschedular disability rating.

The term “substantially gainful occupation” is not defined by VA regulation; however, the Court has held that the term refers to, at a minimum, the ability to earn “a living wage.”  Bowling v. Principi, 15 Vet. App. 1, 7 (2001); Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  The Court has also held that a person is engaged in a “substantially gainful occupation” when that occupation “provides annual income that exceeds the poverty threshold for one person.”  Faust v. West, 13 Vet. App. 342, 355-56 (2000).  The M21-1MR states that “voluntary withdrawal from the labor market” is an “extraneous factor” whose “effects” should be “[i]dentif[ied] and isolate[d]” in determining whether the severity of the service-connected conditions preclude a veteran from “obtaining or retaining substantially gainful employment.”  M21-1MR, pt. IV, subpt. ii, ch. 2, sec. F.27.e.  Consequently, voluntary withdrawal from the labor market should not be an automatic bar to TDIU.

In adjudicating an assertion of entitlement to TDIU, the Board must also consider whether the existing VA medical examination reports adequately “address the extent of functional and industrial impairment from the veteran’s service-connected disabilities.”  Gary v. Brown, 7 Vet. App. 229, 232 (1994).  Thus, if the Board determines that the existing examination reports are insufficient to assess the matter of TDIU, it should request additional medical evidence before adjudicating the matter.

In resolving a TDIU case, the question is whether the claimant is capable of securing or maintaining a substantially gainful occupation.  Although a claimant may be physically able to perform sedentary employment, he or she may not be educationally and vocationally qualified to perform such employment.  Although the duty to assist does not require VA to provide a vocational assessment to a claimant seeking a total disability rating based on individual unemployability, a claimant’s education and work experience are relevant to the issue of entitlement to such a rating.  Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011).

Specifically, it is within VA’s discretion to determine whether a vocational assessment was required based on “the facts of a particular case” and an assessment would be required “if, for example, the veteran were found medically qualified for a particular type of job, but there was an unusually difficult question as to whether the veteran had the educational or vocational skills for that position.”  Id.  Accordingly, Smith does not require VA to provide a vocational assessment in every instance where a claimant is seeking a total disability rating based on individual unemployability, but it does require VA to at least consider whether a vocational assessment is required and to support its determination that one is not required with an adequate statement of reasons or bases.  Id.see also 38 U.S.C. § 7104(d)(1) (requiring the Board to provide a written statement of the reasons or bases for its “findings and conclusions[] on all material issues of fact and law presented on the record”).

If a claimant does not meet the schedular rating for unemployability provided in 38 C.F.R. § 4.16(a), he may still be granted TDIU on an extraschedular basis.  38 C.F.R. § 4.16(b).  The central inquiry “is whether that veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In making its decision, VA may consider the veteran’s education, special training, and previous work experience, but may not take into consideration any impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 1.19.  The Board’s determination as to whether a claimant is unable to secure and hold substantially gainful employment is a finding of fact that the Court reviews under the “clearly erroneous” standard.  Bowling v. Principi, 15 Vet. App. 1, 6 (2001).

Although the Secretary and the Board can separate parts of a claim and develop and adjudicate them separately, see Fagre v. Peake, 22 Vet. App. 188, 191 n.4 (2008) (noting the Secretary is free to “issu[e] separate Board decisions with regard to each, some, or all disabilities claimed by a veteran”), TDIU remains a component of an increased rating claim for any period not adjudicated separately, and the Board has jurisdiction over the issue as long as it has jurisdiction over an increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Evidence of unemployability subsequent to a decision denying TDIU and while a claim for increased benefits is still being processed may lead to an award of TDIU for the time period under adjudication.  If TDIU is not warranted pursuant to 38 C.F.R. section 4.16(a), the matter of a TDIU rating may still be referred to the director of Compensation and Pension Service for extraschedular consideration when it is found that the claimant is unemployable by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).

 “Evidence of unemployability,” does not equate to “100% unemployable.”  Roberson v. Principi, 251 F.3d at 1378, 1384-85 (Fed. Cir. 2001).  Instead, an appellant is not required “to show 100[%] unemployability in order to prove that he cannot ‘follow substantially gainful occupation.'”  Id.  Section 4.16(a) also indicates that “[m]arginal employment shall not be considered substantially gainful employment.”  Marginal employment includes employment in a “protected environment” including a “sheltered workshop.”  38 C.F.R. § 4.16(a).

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 Same Sex Marriage is Handled During VA Benefits Claims

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment of the U. S. Constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

Accordingly, the Department of Veterans Affairs (VA) may now recognize all same-sex marriages without regard to a Veterans’s state of residence. VA will generally accept a claimant’s statement that he or she is married, but may investigate further if an assertion appears unreliable. The same procedure applies regardless whether the claimant is in an opposite-sex marriage or a same sex marriage.

VA is dedicated to serving all eligible Service members, Veterans and their families and providing them the benefits they have earned. All Veterans is same-sex marriages who believe they are entitled to benefits, (including those whose claims were previously denied on a ground related to their marriage) are encouraged to promptly apply for 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