Archive for the ‘Veterans Benefit Claims’ Category

|

Can a veteran obtain more than one personal hearing at the Board of Veterans’ Appeals?

Wednesday, February 1st, 2017

On January 31, 2017, the United States Court of Appeals for Veterans Claims issued a decision in Cook v. Snyder which essentially held that 38 U.S.C. § 7107(b) allows a claimant who had a personal hearing before the Board of Veterans’ Appeals (Board) at one stage of appellate proceedings to receive another hearing before the Board during a subsequent stage of appellate proceedings, following a remand from the Court. The Court provides an historical background of Board hearings and the role they play in Board adjudications. The Court addressed, in detail, the statutory interpretation of section 7107(b) and determined that both the Secretary and the Appellant advanced grammatically plausible readings of the statute where the Secretary argued that only one hearing before the Board was allowed while the Appellant argued that more than one hearing was permitted. The Court determined that the statute’s language is not clear on this point. Therefore, the Court looked to whether VA’s implementing regulation, i.e., 38 C.F.R. § 20.700(a), interpreted the statute, and it found that the regulation did resolve the ambiguity in the statute. Because the VA regulation did not provide the necessary guidance, the Court looked to the Secretary’s interpretation to the extent that it has the “power to persuade” it of its propriety. However, the Court, understanding the VA’s nonadversarial claims system and the understanding that a claim changes and evolves at different stages of an appeal, held that an Appellant should be given the opportunity for a new personal hearing following a remand from the Court.

Here’s a link to the Court decision. https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01204266296&caseId=84703&dktType=dktPublic

No Comments

Category Blog, Veterans Benefit Claims | Tags:

Social Networks : Technorati, Stumble it!, Digg, de.licio.us, Yahoo, reddit, Blogmarks, Google, Magnolia.

Exposure to Dioxin from Contact with Aircraft Used in Operation Ranch Hand

Monday, March 10th, 2014

A recent study published in the journal Environmental Research  indicates that military personnel who flew in dioxin-contaminated aircraft used to spray Agent Orange in the Vietnam War (Operation Ranch Hand) may have been exposed to greater levels of dioxin than has previously been recognized.

The recent study indicates that the potential for exposure to personnel working in these aircraft after they were used for Operation Ranch Hand may be much greater than VA has acknowledged.  This also has implications for personnel who did not “set foot” in Vietnam, but who flew the planes used to spray Agent Orange and who were involved in cleaning and maintenance of the aircraft.

Senator Richard Burr (R-N.C) and Senator Jeff Berkely (D-Ore.) have asked VA to review whether benefits are inappropriately being denied to veterans who may have been exposed to Agent Orange contaminated aircraft.

Demonstrating contamination is further complicated by the fact that almost all of the aircraft, although showing contamination in the 1990s, have since been destroyed.

If you were exposed to aircraft used in spraying Agent Orange, you should be sure to reference this study when filing a claim for Agent Orange related conditions or disputing the denial of such claims.

Comments Off on Exposure to Dioxin from Contact with Aircraft Used in Operation Ranch Hand

Category Agent Orange, Blog, Veterans Benefit Claims | Tags:

Social Networks : Technorati, Stumble it!, Digg, de.licio.us, Yahoo, reddit, Blogmarks, Google, Magnolia.

Five New Illnesses Linked to Traumatic Brain Injuries

Wednesday, January 22nd, 2014

Effective January 16, 2014, VA has amended 38 C.F.R. § 3.310 to add five illnesses found to secondarily related to traumatic brain injuries.  A report by the National Academy of Sciences Institute of Medicine, entitled “Gulf War and Health, Volume 7: Long-Term Consequences of Traumatic Brain Injury,” found sufficient evidence to link the moderate to severe traumatic brain injuries with the following five illnesses:  

  1. Parkinsonism, including Parkinson’s disease, following moderate or severe traumatic brain injury
  2. Unprovoked seizures, following moderate or severe traumatic brain injury
  3. Dementias of the following types: presenile dementia of the Alzheimer type, frontotemporal dementia, and dementia with Lewy bodies, if manifest within 15 years following moderate or severe traumatic brain injury
  4. Depression, if manifest within 3 years of moderate or severe traumatic brain injury, or within 12 months of mild traumatic brain injury
  5. Disease of hormone deficiency that results from hypothalamo-pituitary changes, if manifest within 12 months of moderate or severe traumatic brain injury. 

 What does this mean for veterans who have service connected traumatic brain injuries?

Veterans who have already been granted entitlement to service connection for a moderate or severe traumatic brain injury, have been diagnosed with one of the five conditions noted above and fall within the guidelines provided, may file claims requesting entitlement to service connection for these conditions.  Absent clear evidence to the contrary, VA must grant entitlement to service connection for these five conditions, if the veteran falls within the guidelines noted above.  The benefit to veterans is an elimination of the need for case-specific development, such as not  having to obtain additional medical evidence linking the conditions to the veteran’s service connected moderate or severe traumatic brain injury. 

Veterans with pending claims requesting entitlement to service connection for moderate to severe traumatic brain injuries can also file claims for the above noted conditions; however, the rule only provides for service connection of these conditions if the veteran has been granted entitlement to service connection for moderate or severe traumatic brain injuries. 

Veterans who have been diagnosed with one of the five conditions noted above and have obtained service connection or are seeking service connection for a traumatic brain injury, but do not fall within the guidelines established by the rule, may still request entitlement to service connection for these conditions.  The final rule specifically states that “any claim that is not within the scope of this rule will be developed and decided under generally applicable procedures based on the evidence relating to that claim.”  Thus, veterans will likely need medical evidence specifically linking the condition to their service connected traumatic brain injury. 

To see the final rule in its entirety, as well as commentary, please click on the link below :

http://www.regulations.gov/#!documentDetail;D=VA-2012-VBA-0029-0212

Comments Off on Five New Illnesses Linked to Traumatic Brain Injuries

Category Blog, Veterans Benefit Claims, Veterans Health Care | Tags:

Social Networks : Technorati, Stumble it!, Digg, de.licio.us, Yahoo, reddit, Blogmarks, Google, Magnolia.

New Conditions in “Veterans and Agent Orange”

Wednesday, January 8th, 2014

As many veterans are aware, there are a special set of regulations that provide for “presumptive service connection” for certain conditions if a veteran was exposed to Agent Orange.  This list is important because if a veteran does develop one of the listed condition, even 40 or 50 years after service, and they served on land in Vietnam during the war, service connection is very likely to be automatically granted.  The list is updated periodically based upon the latest scientific studies; in recent years, conditions have been added including ischemic heart disease and Type II Diabetes.  The addition of these diseases and others to the list have benefited thousands of veterans who are now service-connected and receiving VA benefits. 

As mentioned, VA adds new conditions to the list every few years based on the latest research.  Congress has mandated that the National Academy of Sciences report every two years on this research and that the report assess how likely it is that other diseases should be added to the list.  The latest report, called Veterans and Agent Orange, Update 2012 was just released in December (despite the 2012 date, this report did not come out until late 2013).  The biggest news from the report is a finding that there is “limited and suggestive evidence” that strokes are related to exposure to Agent Orange.  Similar findings about Parkinson’s Disease led to that condition being added to the presumptive list several years ago.  The report does not find that the latest research supports there being a link between any other new condition and Agent Orange.  For example, the report finds that there is still insufficient evidence to currently show a link between Agent Orange and the development of certain leukemias, such as Acute Myeloid Leukemia (AML), Chronic Myelogenous Leukemia (CML) and Myelodysplastic Syndrome (MDS).

Under the Agent Orange Act of 1991, VA will now have to take the information from the study and can propose rules adding conditions, such as stroke, to the list of presumptive diseases.  The National Academy’s report is available to read on line or download for free: http://www.nap.edu/catalog.php?record_id=18395

Comments Off on New Conditions in “Veterans and Agent Orange”

Category Agent Orange, Blog, Veterans Benefit Claims | Tags:

Social Networks : Technorati, Stumble it!, Digg, de.licio.us, Yahoo, reddit, Blogmarks, Google, Magnolia.

Proposed Changes in the Regulations to File a Claim or Appeal

Thursday, December 12th, 2013

In an attempt to combat the backlog, the VA has recently proposed several changes to the claims process. While the VA’s goal is to decrease the amount of time it takes to process a claim, many view the proposed change as potentially harmful to Veterans.

Currently, to file a claim the Veteran need only send a letter to the VA which informs it of the desire to seek benefits for a condition. The Veteran is not required to use a specific form or identify the exact disability or condition. Additionally, if the Veteran wishes to appeal a decision, then he or she is able to write a letter to the VA to initiate an appeal. However, under the proposed regulations, a Veteran would be required to submit specific VA forms which include detailed information about the claim (including identifying the medical condition or stating the reason(s) why there was an error in the previous decision).  

Veterans’ advocates have expressed concern over the proposed changes, as the changes will all but eliminate the VA’s obligation to consider a Veteran’s reasonably raised claim(s). Additionally, placing more requirements on the Veteran to fill out a specific form or provide detailed information makes the process more burdensome and less veteran-friendly. Particular concern has been raised for Veterans with mental health conditions or traumatic brain injuries as their conditions may put them at a disadvantage in determining which form to submit and what information to include. As there are a great number of Veterans who file a claim or appeal without representation, navigating the new process could prove difficult.

Currently, the proposed changes are being reviewed by the Senate Veterans’ Affairs Committee. Though the VA forms have been made available to the public for use, they are not required.

Comments Off on Proposed Changes in the Regulations to File a Claim or Appeal

Category Blog, Veterans Benefit Claims | Tags:

Social Networks : Technorati, Stumble it!, Digg, de.licio.us, Yahoo, reddit, Blogmarks, Google, Magnolia.

Did You Serve at Camp LeJeune?

Monday, July 29th, 2013

Over the past several years, there has been considerable attention in the media to the past contamination of the water supply at Camp Lejeune. From 1953 to 1987, the water supply was contaminated with TCE, PCE, benzene, vinyl chloride and “other compounds.” For background information on the problem, see https://clnr.hqi.usmc.mil/clwater/Site/background_information.html

Based on legislation passed in 2012, VA now recognizes the medical problems caused by this water contamination. There are two components to the VA response.

First, VA health care benefits may be available. These are available for veterans and family members, who served on active duty or lived at Camp Lejeune for at least 30 days, from January 1, 1957 to December 31, 1987. The law noted 15 conditions which may be related to exposure to the contaminated water supply: esophageal cancer, breast cancer, kidney cancer, lung cancer, bladder cancer, multiple myeloma, renal toxicity, female infertility, miscarriage, sclerodoma, non-Hodgkins lymphoma, leukemia, myelodysplastic syndromes, hepatic steatosis, and neurobehavioral effects. If you or your family members lived at Camp Lejeune for 30 days during that period and currently suffers from any of these conditions, you may be eligible for health care benefits from VA. For VA’s fact sheet, see http://www.publichealth.va.gov/exposures/camp-lejeune/index.asp

Second, for veterans who served on active duty at Camp Lejeune, disability benefits may be available. To file a claim for disability benefits, you must
1. have been discharged under other than dishonorable conditions,
2. served at Camp Lejeune between August 1953 and December 1987, and
3. provide medical evidence that you have a current condition and a medical opinion that the condition is related to your exposure to the contaminated water.
For more information from VA, see http://www.benefits.va.gov/COMPENSATION/claims-postservice-exposures-camp_leguene_water.asp

VA is not specific as to what “current conditions,” it will consider – however, it is likely that any of the 15 conditions mentioned for health care benefits are good candidates. Unfortunately, VA takes the position that there is not sufficient evidence of a connection between any of these conditions and the exposure to the contaminants in the water supply to justify a presumption that they are related. Because of this, it will be important for you to obtain a medical opinion that states that your condition is related to the water contamination and fully explains the basis for the opinion.

Even if you submit your own medical opinion, VA is very likely to obtain an opinion from a VA physician regarding the connection between your condition and the water contamination. Because of this, it is especially important that the opinion you submit be clear and well supported.

Comments Off on Did You Serve at Camp LeJeune?

Category Blog, Veterans Benefit Claims | Tags:

Social Networks : Technorati, Stumble it!, Digg, de.licio.us, Yahoo, reddit, Blogmarks, Google, Magnolia.

|