The VA Motto:
“To care for him who shall have borne the battle and for his widow, and his orphan.” Abraham Lincoln, 1865.
President Lincoln is responsible for the VA Motto while giving his second inaugural address in 1865. These words affirmed the government’s obligation to care for those who have been injured during war and to provide for the families of our fallen soldiers. Metal plaques bearing the VA Motto hang in the entrance to the Washington, D.C. headquarters of the Department of Veterans Affairs (VA).
Unfortunately, we have often found that the words of our government are easier said than done when it comes to taking care of our veterans. If you need a veterans disability attorney in Wilmington, call Greg Kornegay … we understand your sacrifice and stand ready to help.
Ultimately, you could die or be seriously injured if you are a soldier following orders. Many times, these orders originate from someone sitting behind a desk. Due to the unique terms of their service, soldiers are not entitled to worker’s compensation or long-term disability insurance benefits (although they may qualify for Social Security Disability). Our Country’s character and well-being depend on how well we care for our soldiers. The values of the soldier are a reflection of America’s soul. So, there is an implicit understanding between our soldiers and our Country: “We are there for you because you were there for us.” If this promise is destroyed, our country will decay and die. We don’t want to let that happen … we are here to help with your VA disability case!
Four Major VA Benefit Programs:
- Service – Connected Disability Benefits for veterans. This means disability compensation for the veteran for a service-related disability. It does not have to be combat related. A veteran could be injured on their way to report for duty and still qualify for the service connection. The compensation is unrelated to income or assets. The monthly payments are determined by the degree of disability, from 10% – 100%. An example of a common 10% rating would be for tinnitus, usually from gunfire. A 100% rating would mean that the veteran is unable to work or function normally.
- Non-Service – Connected Disability Pension Benefits for ware-time veterans (Needs-based);
- Service – Connected Death Benefits for certain qualified survivors of deceased veterans (“DIC”). These benefits are available to certain survivors of veterans who died in active duty, who died from service related disabilities or who were receiving 100% disability compensation at the time of death. ; and
- Non-Service-Connected Death Pension Benefits for certain qualified survivors of deceased war-time veterans.
Service Connected Disability Is Most Important
Veterans are entitled to compensation for disabilities incurred in or aggravated during active military, naval, or air service. 38 U.S.C. Section 1110.
- The disabilities must have occurred during the period of time between the date you started your active service and the date you stopped your active service (discharge from active service); or
- Your preexisting disabilities must have been aggravated during the period of time between the date you started your active service and the date you stopped your active service (discharge from active service).
Three Rules for Finding “Service Connection”
- One, Evidence that the veteran currently suffers from a disability:
- the file must contain a diagnosis by a medical professional
- The VA has a duty to assist a claimant in obtaining evidence necessary to support the claim – the claimant may be able to force the VA to provide a free VA medical examination to diagnose the claimed medical condition
- The claimant must currently suffer from the disability – this means on or after the date of application.
- Two, Evidence of an incident, injury, or event during the period of the veteran’s military service:
- The VA focuses on the veteran’s military personnel and medical records
- The VA must consider lay evidence submitted by the claimant of what happened in service. Lay evidence means statements and other proof from regular people who are familiar with the claimant’s medical problems during the time of service. There is no requirement that the event, injury or disease be confirmed in the military records, but the lack of confirmation can be weighed against the lay evidence.
- Favorable Evidence Standard for Combat Veterans – The VA is required to accept a veteran’s lay statement about what happened in service if the event occurred while the veteran was engaged in combat with the enemy, is consistent with the circumstances of such service, and there is no clear and convincing evidence to the contrary.
- Three, Evidence (medical evidence) of a link between the current disability and the incident, injury, or event during service (Caluza v. Brown, 7 Vet.App. 498, 506 (1995). There are 5 ways of establishing a link between a current disability and an event, injury or disease that occurred during the period of military service. The VA must consider all these theories when considering whether there is a service connection. The VA even has a duty to assist the veteran in finding in-service causes of a current disability that are unknown to the veteran. The only time the VA does not have a duty to assist the veteran is when there is no reasonable possibility that the assistance would aid in substantiating the claim. 38 U.S.C. Section 5103A(a)(2).
- Establishing Service Connection Directly:
- Establishing Service Connection Thru Aggravation
- Establishing Service Connection Thru Statutory Presumption
- Establishing Service Connection Thru a Secondary Basis
- Establishing Service connection by showing disability was caused by VA Medical Treatment or Vocational Rehabilitation
Establishing Service Connection Directly
The most direct way of showing a service connection is thru military or service medical records that the medical condition came about or was diagnosed during military service. You can also use a doctor’s medical opinion that an incident in service caused the veteran to eventually suffer from a disability. 38 C.F.R. Sections 3.303(a) and 3.304. (VBM 3.4.3).
Establishing Service Connection Thru Aggravation
- Presumption of Aggravation: If a veteran has a medical condition that preexisted his or her service, showing that the condition worsened during service may establish the service connection. In this situation, there is a “presumption of aggravation” that applies. The “presumption of aggravation” will shift the burden of proof to the VA. 38 U.S.C. Section 1153. In other words, if the VA wants to fight the presumption, the VA will have the responsibility to come forward with proof that the increase in the veteran’s disability is due to the natural progress of the disease. If the VA does not come forward with the proof, then the “presumption of aggravation” holds and is favorable to the veteran.
- Presumption of Soundness: As part of the aggravation concept is the “presumption of soundness.”
Establishing Service Connection Thru Statutory Presumption
- Chronic Diseases that surface within a certain period of time after discharge
- Tropical Diseases that surface within a certain period of time after discharge
- POW Diseases that surface at any time
- Persian Gulf Veterans Diseases that surface prior to December 31, 2011
- Radiation Diseases linked to radiation exposure
- Diseases linked to herbicide exposure for veterans who served in Vietnam. The statutory presumptions are intended to be liberalizations for the veteran that allows a finding that would not otherwise exist due to the lack of evidence. A medical condition does not have to be formally diagnosed – only that the signs or symptoms be manifested. However, it is generally required that the veteran must have served on active duty for 90 continuous days to be eligible for service connected benefits using a statutory presumption.
Establishing Service Connection Thru A Secondary Basis
If the veteran has a service connected medical condition that causes or aggravates a second condition, this “second condition” can be considered a service connected medical condition. An original physical service connected medical condition can cause or aggravate a mental condition thereby making the mental condition service connected.
Establishing Service Connection Thru VA Medical Treatment or Vocational Rehabilitation
If the veteran has a disability caused by VA medical care or vocational rehabilitation, it is to be treated as if it is service connected. This does require fault on the part of the VA – some type of negligence.
Frequently Asked Questions regarding Veterans Disability Cases
Veteran Status – Who is a Veteran?
You are a Veteran if you served in the active military, naval, or air service, and were discharged or released under conditions other than dishonorable. 38 U.S.C. Section 101(2); 38 C.F.R. Section 3.1(d).
- Your discharge or release must have been under conditions other than dishonorable.
- A discharge under “other than honorable (OTH) conditions” keeps you from being a veteran if the conditions under which you were discharged shows willful and persistent misconduct on your part. See Camareana v. Brown, 6 Vet.App. 565, 568 (1994).
- Dishonorable conditions that support your discharge can be found even if you were not court-martialed. 38 C.F.R. Section 3.12.
- In Cropper v. Brown, the court found that an OTH discharge that resulted from willful and persistent misconduct was considered to have been issued under dishonorable conditions. Cropper v. Brown, 6 Vet.App. 450, 453 (1994). The Court in this case cited 38 C.F.R. Section 3.12.
How Does the Court Determine Whether Your Discharge was the Result of Willful and Persistent Misconduct ?
- The Court (Board of Veterans Appeals) will look to see if your conduct was a minor offense or a major offense; and
- The Court (Board of Veterans appeals) will consider if your service was otherwise honest, faithful, and meritorious.”
Cropper v. Brown, 6 Vet.App. at 452 (1994).
If your Disabilities Were Caused by your Willful Misconduct – Can You Be Compensated?
Willful misconduct is an act involving conscious wrongdoing or a known prohibited action. 38 C.F.R. Section 3.1 (n) VBM 2.5. See Myore v. Brown, 9 Vet.App. 498, 503 (1996). If the evidence shows that your injury was the result of willful misconduct, this cancels out the presumption of service connection for that same injury occurring during active duty. Shedden v. Principi, 381 F.3d 1163, 1166 (Fed. Cir. 2004).
What if Alcohol and Substance Abuse are Primary Conditions?
Compensation cannot be paid for disabilities that were caused by primary alcohol abuse or substance abuse. See 38 U.S.C. Section 1110. In other words, no compensation can be paid if the disability is a result of the person’s own willful misconduct or abuse of alcohol or drugs.
Compensation cannot be paid for disabilities that are secondary to alcohol addiction that developed in service (i.e., cirrhosis of the liver). In other words, if alcohol caused another disability, even while in service, this cannot be compensated. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001).
What if Alcoholism and Substance Abuse are Secondary to a Service Connected Condition(s)?
Compensation may be paid for alcohol or drug abuse-related disabilities that are secondary to a service-connected disability. It is possible to even use evidence of alcohol or drug abuse to increase the severity of a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed Cir. 2001). If alcoholism or drug abuse is secondary to a service- connected condition, any disability resulting from that alcoholism or drug abuse (cirrhosis of the liver) may also be service –connected.
Is Getting Venereal Disease or a HIV- Related illness “Willful Misconduct”?
Getting venereal disease and suffering from the effects of it will not bar the service connection since such conduct is not considered willful misconduct. M21-1MR, Part III, Subpart IV, Chapter 4, Section I, 34(f). Service connection for the effects of venereal disease for HIV-related illness is determined using general service connection principles. Junstrom v. Brown, 6 Vet..App. 264 (1994).
Contact us today for a free initial consultation:
Greg Kornegay Veterans Disability Attorney Wilmington NC
Toll Free: 866-579-5757
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