Veterans Disability Law Blog & News

Many Veterans logically believe that upon award, their date of entitlement should go back to the date that the problem first arose. Unfortunately, the applicable VA law on this point isn’t as favorable to the Veteran as one would hope. While there are many exceptions, generally the effective date is the date the VA receives the claim, or the date that entitlement arose, whichever is later.  38 U.S.C. 5110a. It is that whichever is later language that prevents back payment going back to the date the problem first arose.  Having a skilled veterans attorney is very useful on this point though because there are many exceptions to this general rule.  Reopened Claims (Supplemental Claims) Prior to the Appeals Modernization Act, a previously denied claim that was not timely appealed could be reopened with new and material evidence.  Under the newer appeal system (AMA) a supplemental claim must be filed based on new and

Effective August 5, 2021, the VA amended its adjudication regulations, adding three respiratory conditions—chronic asthma, rhinitis, and sinusitis (including rhinosinusitis)—to a list of presumptive conditions. The VA has long known about hazardous particulate matter exposure (including burn pits, dust storms, etc.), but this represents the first substantive legal change to make it easier for veterans seeking disability compensation for their respiratory conditions. In this post, we’ll cover who this change applies to, what it means for claimants, and how to apply for benefits. We’ll also cover issues with the effective date, which can be tricky given the change in law. Who does this apply to? Broadly, the presumption applies to veterans who served in the Southwest Asia theater of operations between August 2, 1990 and present. Under VA regulations, the Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain,

Many Veterans become confused when they have different service-connected problems that the VA rated them for and may not understand how to calculate them.  Veterans occasionally presume that the VA simply adds together the separate VA ratings to get an overall rating.  If you have multiple VA ratings you can consult the VA ratings table located here.  For example, where a Veteran has an 60% disability, a 20% disability, the rating does not equal 80%.  Instead, look at the ratings with the highest rating on the left side of the chart and lower rating on the top of the chart.  The 60% rating will be located on the left side and the 20% on the top.  Then you look at the number where the two numbers intersect–and in this case the number is 68.  Ratings are always divisible by 10 and so you round to the nearest number that is divisible

Agent Orange (AO) generally refers to any herbicide that was used during the Vietnam War, but the main ingredient within these herbicides that causes most medical problems is dioxin. Dioxins are extremely toxic since they persist in the environment and are known to cause cancer and a host of other problems.  Generally, to receive presumptive service connection for agent orange exposure you need to have one of the diseases linked with exposure. See 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The presumption generally applies to veterans who served in Vietnam, along the Korean DMZ, and Air Force Veterans who worked on C-123s.  If the Veteran can’t prove presumptive exposure, then they must prove actual exposure which is quite difficult.  Somewhat easier to do is when youcan prove actual exposure but lacking a listed disease, and different disease is possibly related to AO based on private medical opinion. Periodically this list is revised

Many veterans have been unable to access to VA benefits for mental health problems simply because they may have been branded as someone with a “personality disorder” (PD) which is considered by many to be genetically derived and therefore could not be related to service. Most often these disorders were not correctly diagnosed and were merely doled out to soldiers based on the military wishing to discharge, but often were not at all affected PD.  Anecdotally psychologists often mention that it is quite difficult to make a correct/accurate PD diagnosis and so any. Often it has not. Most veterans also know that when they are released from active duty, they receive a DD214, a Certificate of Release or Discharge from Active Duty. Some may not know that the honorable/dishonorable conduct code, and other codes on the DD214 that are just as important. During the Fiscal Year (FY) 2001 to 2010,

Many veterans have claims related to traumatic incidents from the military be it in combat, during physical training, accidents, from terroristic based fear, and even assaults or sexual assaults from fellow soldiers.  There are countless different types of stressful events that may have caused a veteran’s PTSD and or other mental health problems.  PTSD symptoms differ among veterans but often they re-experience past events, nightmares, flashbacks, emotional distress, dissociation, guilt, depression, social problems, anger, sleep disorders, or drug and alcohol abuse.  How should I file for PTSD? It’s often advisable to file for PTSD and/or other mental health problems so that the veteran isn’t just limited to that particular diagnosis.  Often it makes sense to claim “PTSD” and/or other related mental health problems.  This is because although the VA has a duty to sympathetically read a veteran’s claim for PTSD as a claim for any related mental health problem, they

Among the most important steps in the VA disability process is the Compensation and Pension (C&P) examination. These exams are administered by the VA to determine both your eligibility for and rating of your disability claims. Although they are just one piece of evidence in the rating process, many VA adjudicators, especially at the lower levels, give them a lot of weight. Adequately preparing for your exams can help ensure you are making the most out of the process.  Background While C&P exams may feel like a hurdle, it’s important to note that they are meant to help you prove your claim. VA administers C&P exams as part of the “duty to assist”, which requires that VA “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.” 38 U.S. Code § 5103A.  That said, in practice, not all examinations live up

An important feature that most Veterans probably wouldn’t believe is that the VA is actually supposed to assist you whileapplying for VA compensation. This is of course in theory. The applicable rule, the Veterans Claims Assistance Act, also known as the “duty to assist” so that the VA will assistVeterans develop their claims in a variety of ways described here. Assist with Evidence The duty to assist requires VA to fully develop the claim for increase andmake “reasonable efforts” to assist the veteran in locating the evidence. This includes evidence from private medical providers.  If the VA is unable to procure this evidence, they must let the veteran know.  There is a bit of a heightened duty if the records are from a different federal agency (including service treatment records),they must get the records unless for some reason they don’t exist, or further efforts would be pointless.  The duty to

What is TDIU? Under Total Disability Individual Unemployability or TDIU, the VA pays 100% compensation to veterans who are unable to maintain substantially gainful employment either permanently or temporarily because of service-connected disabilities, even if their actual combined rating is less than 100%. Most recipients have either a 60 or 70% rating but still earn 100% if they no longer work.  Unlike the schedular rating that are based on the average loss in employability a particular disability has on one’s earnings capacity in general, TDIU is based on the individual veteran’s particular situation, and the extent to which their disability affects their capacity to work. Eligibility To be eligible, veterans must generally meet the following schedular requirements: 1) have at least one service-connected disability rated at least at 60% or 2) have two or more service-connected disabilities with at least one disability ratable at least at 40% or a combined

Many veterans may reasonably believe they are entitled to benefits based on an injury or disease incurred during National Guard duty but are quickly denied for not meeting the definition as a “veteran”. While veterans who serve for prolonged periods in the primary branches of the military never run into the definitional issue of who a veteran is this is quite problematic for many guard or former guard members. Though often a line of duty report may be the easiest way to get the VA to conclude that a disability occurred during qualifying national guard duty very often these reports are never prepared, and other forms of proof would likely be required. A line of duty report definitively proves one was in the line of duty though if you can otherwise show that one’s duty was federalized this would also be sufficient. This most often happens under title 10 and