Intro to VA Law Part 1 NOSSCR 10.2014

Presenters:
Jeff Bunten and Katrina Eagle,
Attorneys at Law
ELEMENTS OF A SERVICE-CONNECTION
CLAIM, AND THE TYPE OF EVIDENCE
NEEDED FOR EACH ELEMENT
NOSSCR Fall Conference
Las Vegas, NV – October 10, 2014

“Many unfortunate and
meritorious veterans, whom
Congress have justly thought
proper objects of immediate
relief, may suffer great
distress, even by a short
delay, and may be utterly
ruined, by a long one.”
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22 UU..SS.. 440099 ((11779922))

 The Real Deal
There is nothing basic about veterans law
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VVAA mmaakkeess mmiissttaakkeess bbuutt iiff yyoouu ddoonn’’tt kknnooww tthhee pprrooppeerr
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NOSSCR 2014 Fall Conference Las Vegas, NV - 10 Oct 2014

REPRESENTING THE MILITARY VETERAN
How Does the VA Define a “Veteran”?
For VA purposes, the definition of a veteran
is “a person who served in the active military,
naval or air services, and who was discharged
or released under conditions other than
dishonorable.”
38 U.S.C. § 101(2), 38 CFR § 3.1(d) (2011).
How to tell? Start by looking at the veteran’s DD-
214.

Compensation for Service-Connected
Disability
What does “service-connection” mean?
Compare: a battlefield wound to knee and
knee injury playing football during active
service: BOTH may be determined to be
service-connected conditions

Disability
VA compensation is paid in amounts based on the
severity of the medical condition, in 10-percent
increments from zero to 100 percent. The disability
rating assigned to a veteran’s medical condition is
based on its impact on, or interference with, the
veteran’s ability to obtain and maintain gainful
employment.

Current Service-Connected Disability Compensation Rates (as of 12/2013):
Disability Rating Monthly Annually
10 % $130 $1,560
20 % $258 $3,096
30 % $400 $4,800
40 % $577 $6,924
50 % $822 $9,864
60 % $1,041 $12,492
70 % $1,312 $15,744
80 % $1,525 $18,300
90 % $1,714 $20,568
100 % $2,858 $34,296

Disability
3 Basic Requirements for Eligibility
 Medical Evidence of CURRENT Disability
 Evidence of a Disease, Injury or Event Coincident with
Military Service
 Nexus between the Current Disability and the In-
Service Disease, Injury or Event

Disability
“Current Disability” includes a DIAGNOSIS by a
medical professional
 If the veteran does not yet have the medical
documentation of a diagnosed disability, still
proceed with assisting the veteran in filing a claim
for service-connection, so that the earliest possible
EFFECTIVE DATE is established.
 “Currently” means on or after date of VA
application for benefits

Disability
Evidence of an In-Service Disease, Injury, or Event
 Review and Scrutinize the Veteran’s Service Medical
Records (SMR’s)
 Be sure to understand the medical condition AND its
symptoms

Disability
Evidence of an In-Service Disease, Injury, or Event
 VA places GREAT WEIGHT on contents of
veteran’s military personnel and medical records
 VA is required to consider lay evidence of in-service
injury, but lack of confirmation in SMR’s
can be weighed against the lay evidence. See
Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.
2006)
 There are relaxed evidentiary standards for
combat veterans. See 38 U.S.C. § 1154

Disability
Requirement of a Nexus (link) b/n Current
Disability and In-Service Disease, Injury or Event
 Medical opinion re Nexus “as likely as not....”; i.e.,
physician need not be absolutely certain of the nexus
 Note: the VA will reject medical opinions as having
little to no probative value if the opinion is mere
speculation, or does not reflect a comprehensive review
of the historical medical records.
 No “Treating Physician Rule” in the VA claims process.
 BUT, sometimes, no link required because…

 MANY Medical Conditions Eligible
for Presumptive S/C, such as:
1. Tropical Diseases
2. Former POW’s
3. Radiogenic Diseases
4. Herbicide / Agent Orange Exposure
5. Persian Gulf War
6. Chronic Diseases aka Continuity of
Symptomotology
 See 38 U.S.C. §1112; 38 CFR §3.309(a)-(e)

 Re Presumptive S/C Claims:
 To successfully obtain presumptive s/c, a
condition must simply manifest within
presumptive period; IT NEED NOT BE
FORMALLY DIAGNOSED. See 38 U.S.C.
§1112; 38 CFR §3.307(c)
 ALS per recent VA reg – see 38 CFR § 3.318
 Parkinson’s, IHD, and B Cell Leukemia were
added in 2010 as related to AO exposure
 If all criteria for Pres. S/C cannot be met, then
pursue DIRECT S/C claim
 E.g., exposed to AO, but not in Vietnam

 Establishing Entitlement to . . .
 Secondary Service-Connection
When a veteran has a service-connected
condition, and later develops another medical
condition that is directly related to the service-connected
condition, then the second condition
will also qualify as a service-connected
condition, eligible for compensation.
No time constraints b/n original and secondary
condition manifestations.
Example: Diabetes Mellitus (Type II Diabetes)

Key Concepts Integral to a Service-
Connection Claim:
Duty to Assist: VA’s statutory duty is very broad,
and includes securing a medical evaluation and, or
medical opinion, obtaining VA and other govt
records, private Rx records. See 38 U.S.C.S. § 5103A
Even after RO denies claim, additional evidence can
be submitted for consideration.

Connection Claim:
The VA also has a duty to give a sympathetic reading
to a veteran's filings and adjudicate all potential
claims reasonably raised by the evidence of record.
In addition, the VA is required to consider all legal
theories raised by the record that may lead to a
grant of the benefits requested, regardless of whether
they are specifically raised by the claimant, and
consider the benefit of the doubt rule.

Connection Claim:
Presumption of Soundness: the veteran will be
presumed to have been in good health when he or she
entered the service unless there is clear evidence to
the contrary. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).
Presumption of Aggravation: In order to rebut POS,
VA must show condition EPTS AND was not
aggravated beyond its natural progression as a result
of service. See Wagner v. Principi, 370 F.3d 1089
(Fed. Cir. 2004).

When the veteran needs evidence to show in-service
injury, disease or event:
1.Military Personnel Files
2.Military Medical Records
3.Other Types of Military Records That May
Support Claim
4.Lost or Destroyed Records

When the veteran needs medical-nexus
evidence:
1.Veteran’s Own Treating Physician
2.Independent Medical Evaluation and, or
Opinion
3.If evidence in claim triggers VA’s duty to
provide VAX, request one – see 38 C.F.R.
3.159(c). It is a “low threshold” of evidence
that triggers VA’s duty.

 Tips re Veterans Law Practice:
1. The very first question to ask a potential client: “do
they have a current medical condition?” Then “why
do you think it’s related to your military service?”
2. Be up-front and direct with the veteran – you may
be the first to do so! Intentional or not, the veteran is
swamped in letters and forms from the VA but is
never told the basic facts re his case and what is
needed for it to be granted.
3. Know the veteran’s VA file WELL! Be sure to note
all pending and potential deadlines.
4. Research and understand the medical condition at
the crux of the veteran’s claim.

Key Resources:
NOVA (National Organization of Veterans
Advocates): www vetadvocates . com
Veterans Benefits Manual (produced annually by
NVLSP, published by Lexis/Nexis)
US CAVC (Veterans Court): www uscourts.cavc.gov
Dept of VA: www va .gov
www .military .com
www. vawatchdog. org
Google!!

 Katrina’s Contact Information:
 10755 Scripps Poway Parkway; # 353;
 San Diego, CA 92131;
 858.549.1561 (o) / 858.549.1167
 katrina@eagleveteranslaw.com

Intro to VA Law Part 1 NOSSCR 10.2014

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