Sun, 16 Apr 2023 04:20:13 -0400WeeblyWed, 23 May 2012 23:04:54 GMThttp://mwadsworthlaw.com/veterans-benefits-blog/retroactive-benefitsLately I've been getting a number of phone calls from veterans who believe they are entitled to an earlier effective date for benefits than the VA has granted.

Often, the effective date for benefits is the date the disability claim was originally filed.  In this case, a veteran will typically receive back pay to the date the claim was filed.  The VA is liberal in it's interpretation of the 'date the disability claim was originally filed'.  A written communication a veteran sent to the VA prior to filing the formal application for benefits can sometimes qualify as the date of filing.

In other cases, the effective date for benefits might be the date the disability first arose.  Here, the date a claim was filed or the date evidence was submitted are not key.  Rather, what is important is when there was first medical evidence of a disability.  Some disabilities may have arisen during service such that the date of discharge will serve as the effective date.  Other latent diseases may first occur many years after service and the date of diagnosis may serve as the effective date.

For veterans with Agent Orange related illnesses that are considered presumptive, the rules are more complex.  Sometimes retroactive benefits are payable only back to the date that the VA recognized the illness as presumptively related to Agent Orange.  This can be the case where a veteran has filed a claim after the VA recognized the illness.  In other cases a veteran may be entitled to a much earlier effective date, particularly where the veteran had long ago filed a claim that had been denied before the illness was recognized as presumptively related to Agent Orange exposure.

Determining effective dates for Total Disability based on Individual Unemployability (TDIU) is especially complex.  First, an analysis of the date the VA first received evidence indicating the veteran was unemployable will be critical.  Next, the veterans degree of disability at the time the VA received the evidence must also be reviewed. 

Unfortunately, arguments that a veteran is entitled to an earlier effective date due to VA's failure to notify of the right to file a claim have thus far been unsuccessful.

VA's regulations pertaining to effective dates for retroactive benefits can be quite a labyrinth.  It can be helpful to consult a lawyer to advocate through this maze for you.  You deserve to have all the benefits you are entitled to.  ]]>Sat, 19 May 2012 21:53:43 GMThttp://mwadsworthlaw.com/veterans-benefits-blog/greetings-from-gods-countryAfter wrapping up with my clients in Massachusetts and relocating my practice to Myrtle Beach, South Carolina, I'm now returning to writing this blog.  Since moving here to South Carolina in March, I've met so many great people who are incredibly dedicated to ensuring our veterans get taken care of; it's heartwarming.  

A veteran I met recently, upon hearing that I was new to the South, said to me, "I'm glad you got to see God's country before you die", and I heartily agreed.  I'm happy to be advocating for veterans in a God-loving, patriotic region of the country.

Last month I attended the Grand Opening of the Myrtle Beach Vet Center.  I met a range of veterans; from a young man recently returned from Iraq and working on resuming his education to a gentleman who despite his age and disablities told me with passion that he would still be over in the Middle East if he could be.  How humbling to meet such truly great Americans.

There is a mural of our brave men and women on display at the Myrtle Beach Vet Center which includes a quote I hadn't seen before, and that I feel compelled to post here because it rang so absolutely true.

IT IS THE SOLDIER
It is the Soldier, not the minister
Who has given us freedom of religion. It is the Soldier, not the reporter
Who has given us freedom of the press.

It is the Soldier, not the poet
Who has given us freedom of speech.

It is the Soldier, not the campus organizer
Who has given us freedom to protest.

It is the Soldier, not the lawyer
Who has given us the right to a fair trial.

It is the Soldier, not the politician
Who has given us the right to vote.

It is the Soldier who salutes the flag,
Who serves beneath the flag,
And whose coffin is draped by the flag,
Who allows the protester to burn the flag.

Charles Michael Province, U.S. Army
]]>Wed, 28 Dec 2011 19:11:41 GMThttp://mwadsworthlaw.com/veterans-benefits-blog/proving-a-current-disabilityIntroduction
To obtain service connected compensation the first thing a veteran must prove is the existence of a current disability.   After that, the veteran must also provide medical, or sometimes lay evidence, that the injury or disease was incurred or was aggravated while the veteran was in service.  Finally the veteran must provide evidence linking the incurrence or aggravation of the injury or disease to the current disability.   This post will explain the first requirement: proving the existence of a current disability.

Current Disability
A veteran is not entitled to disability compensation merely because she or he was ill or injured during the period of service.  Many injuries and diseases are temporary and leave no residual symptoms.  The VA requires that a veteran currently have symptoms stemming from the injury or disease in order to receive compensation for a disability incurred during service.

Evidence of Current Disability
Oftentimes a veteran cannot afford to go see a private physician to get a diagnosis of a current disability.  Frequently if the veteran supplies the VA with statements about ongoing and repeating symptoms of the current disability, the VA is then required to provide a free VA examination to the veteran (for all claims filed after November 9, 2000).  The medical report resulting from that exam may satisfy the requirement of evidence of a current disability.

When submitting a lay statement to the VA, include as much detail as possible.  Describe each symptom specifically.  Mention when it first occurred, times when it has worsened, up to the present day.  Explain how frequently the symptoms occur and with what severity, and for any symptoms that is not continuous describe the circumstances when it recurs, and for how long, etc. 
If there is a medical article linking the symptoms to a particular diagnosis, by all means include this article in the submission. The more detail that is provided by the veteran  the more likely the VA is to assist a veteran with a free VA exam.  

For veterans who can afford to see a private doctor, it also helps to include the medical report.  Encourage the physician to specifically discuss the veteran's medical records (not just that they were referenced) and to describe how the medical diagnosis was reached.

The additional details provided by the veteran and/or a private physician can bolster other evidentiary requirements.

Type of Evidence Required
The VA requires competent medical evidence to prove a current disability.  This means evidence provided by a medical professional.  There are almost no cases where a veteran's statement alone - without any medical evidence - will be accepted by the VA as proof of a current disability.

When Doctors Disagree
If a veteran submits a medical report from a private physician and it conflicts with a medical report from a VA doctor, the adjudicator at the regional VA office or the Board of Veterans' Appeals will review both reports and consider which contains stronger evidence and is more credible.

Disability Must Be Current
The VA requires evidence that at some point between the time the claim is orginally filed or while the claim is pending the veteran had a current disability.  Proof of a disability prior to filing will not suffice.
 
Defects versus Disease
The VA does not provide compensation for certain conditions such as "congenital or developmental defects".  A veteran can be compensated for a hereditary disease that first occurs, or is aggravated, during service, but not for a defect no matter when the symptoms first occur.  A condition that can improve and worsen may be a disease, whereas a defect may not change at all.  Therefore it is helpful to show a change in the condition to show that the condition is a disease.

Conclusion
A veteran must be able to prove the existence of a current disability by submitting medical evidence to the VA.  If the veteran cannot afford to obtain a medical opinion, a detailed description of symptoms can be submitted to the VA to trigger the provision of a free VA medical exam.  Once a veteran has evidence of a current disability, the next burdens of proof are that the injury or illness that caused the disability first occurred, or was aggravated, during service and caused the current disability. ]]>Mon, 19 Dec 2011 22:43:50 GMThttp://mwadsworthlaw.com/veterans-benefits-blog/special-issues-impacting-eligibility-for-benefitsA veteran who meets the criteria for Basic Eligibility for Benefits can still be denied benefits where willful misconduct during service has caused the disability. 

If the VA finds that an injury or illness resulted from willful misconduct, no benefits will be paid to the veteran based on that disability.  Fortunately, the VA is required by law to presume that the injury or illness is not the result of willful misconduct.  Only if the VA can prove that the veteran engaged in willful misconduct resulting in the claimed disability can benefits be denied.

What is willful misconduct?
The VA defines misconduct as "an act involving conscious wrongdoing ro known prohibited action".

Alcohol or Drug Abuse
Simple drinking alone is not considered alcohol abuse.  Only where the drinking is so excessive as to cause disability or death will it be considered willful misconduct.  Likewise the occasional use of drugs is not willful misconduct unless the drug use causes disability or death.  Uses drugs to the point of addiction is ocndiered willful misconduct.  However it is not willful misconduct to become addicted to a prescribed medication used for pain relief, nor is it willful misconduct when prescription drugs are used to treat a service-connected disability or when the addiction results from said disability.

VA will not pay compensation benefits disabilities that resulted from willful alcohol or drug abuse during service.  If, however, the alcohol and drug abuse arose out of a service-connected disability or was due to the worsening of a service-connected disability, the veteran may be entitled to compensation.

Venereal Disease
The VA  permits payment of benefits to veterans whose disability stems from a sexually transmitted disease, even where there was found to be willful misconduct.  However, this will only by the case where the initial infection occurred during service.  If the veteran was infected prior to service it is unlikely that any compensation will be paid. 

Suicide
Suicide by a servicemember does not automatically preclude eligible surviving family members from receiving benefits.  A survivor can receive death benefits where it can be shown that the veteran was of "unsound mind" at the time of the suicide, and that the "unsound mind" was the result of a service-connected condition (such as post traumatic stress disorder).

For VA purposes "unsound mind" means the person wasn't capable of developing the intent to take their own life.  Unless there is a motive for the suicide that would lead any reasonable person to be self-destructive, the VA will presume that the suicide resulted from mental unsoundness and eligibility for death benefits will be retained. ]]>Sat, 26 Nov 2011 01:17:50 GMThttp://mwadsworthlaw.com/veterans-benefits-blog/service-connected-compensation-overviewThe first step in qualifying for service-connected compensation is to meet the VA's definition of a veteran, which includes having been discharged under conditions other than dishonorable.  Next, there must be an injury or disease that first occurred, or worsened, during service.  Finally, the injury or disease cannot have been the result of a veteran's willful misconduct or alcohol and drug abuse (need to do post on this).

To win a claim for disability benefits the veteran must provide:
1)  Competent evidence of a current disability
2)  Medical, or sometimes lay evidence, that the injury or disease was incurred or was aggravated while the veteran was in service
3)  Competent evidence that links the incurrence or aggravation of the injury or disease to the current disability.

The VA has a duty to help the veteran try to get the evidence that can prove the claim.  If the veteran provides the necessary evidence, the VA then rates the severity of the disability and provides a percentage of disability based on the Schedule for Rating Disabilities.  Next the VA sets the effective date for the award of compensation. ]]>Sat, 26 Nov 2011 01:10:13 GMThttp://mwadsworthlaw.com/veterans-benefits-blog/service-connected-compensation-proving-current-disabilityIntroduction
There are three elements a veteran must prove to obtain service-connected compensation.
1) The existence of a current disability
2) An event or injury during service that caused or exacerbated the disability
3) The current disability is linked to the in-service event or injury. 

This blog entry addresses element number one, proof of a current disability.

A veteran does not qualify for compensation unless they suffered an injury or disease during service that has lasting symptoms.  An injury or illness that occurred during service and did not have a lasting impact on the veteran will not suffice.  To be eligible for compensation, the veteran must be suffering from a current disability or from disabling symptoms resulting from a disease or injury.  On the date that the veteran files the compensation claim or at some point while the claim is pending the veteran must have an existing disability.  Note: certain genetic defects generally do not qualify as diseases for which a veteran can receive compensation.

VA Medical Exams
Generally the veteran's statements about their symptoms, alone, is not enough to prove current disability (there is an exception to this rule that applies only to veterans of the Persian Gulf War).  However, a veterans statements about their disabling symptoms can compel the VA to help arrange for a free medical exam to obtain a medical diagnosis.  It is important that a veteran report any ongoing or recurring disability symptoms that are associated with the veterans service, in order to compel the VA to provide the exam.  The results of this medical exam may then provide the necessary proof of a current disability.

To qualify for this free exam, It is helpful for the veteran to submit detailed statements about each symptom - how severe it is, how often it occurs, and how long the veteran has had the symptom.  Any people who have observed the veterans symptoms or heard the veteran speak about the symptoms can help by providing statements in which they detail their observations. 

In addition, it is important to show that the reported symptoms are associated with the veterans service.  A medical article that links the reported symptoms to a particular diagnosis is also helpful.  Continuity of symptoms can also meet this requirement.

If a veteran can afford it, it is always useful to obtain a private medical diagnosis prior to having the VA medical exam.  The exam report should describe details of the veterans medical history that support the diagnosis to be most persuasive.

If a veteran is trying to reopen a disability compensation claim, new evidence of a current disability will normally be required to compel the VA to provide the exam.

Conclusion
The best evidence of a current disability includes detailed statements from a veteran, friends and family members as well as a report from a private doctor that links the veterans current specific symptoms to a specific disease or injury and/or a relevant medical article or even just the continuity of the symptoms.

Once a veteran has proven there is a current disability, next there must be proof of an injury or event during service that caused or exacerbated the disability and finally a link must be established between the in-service event or injry and the current disability.


]]>Wed, 23 Nov 2011 23:07:33 GMThttp://mwadsworthlaw.com/veterans-benefits-blog/client-testimonialBelow is a thank you note I received from a client after representing him in a social security disability benefit appeal.  We won at the first level of appeal (called Request for Reconsideration).  Eighty (80) percent of appeals at this level are denied - in fact many attorneys won't even try to win at this level - but thanks to my determination and my special strategy, we were successful. 

"A very small token to show my deep appreciation and admiration for your hard work on my case.  A truer friend and advocate I could never ask for.  I really believe that God has crossed our paths!  It has been a rough six months, but you are truly one of the bright stars shining through the darkness.  You have helped make me feel like a winner again.  That many things are still possible, and for that I will always be grateful.  You are truly God's trusted servant"
                                                KF, Rockland, MA ]]>Wed, 16 Nov 2011 20:30:46 GMThttp://mwadsworthlaw.com/veterans-benefits-blog/basic-eligibility-for-va-benefitsIntroduction
There are basic eligiblity requirements that apply to all VA benefits.  Basic requirements are that a person served in the military, had active service, and was discharged under conditions other than dishonorable.  Once these basic requirements are met, it is then necessary for a veteran to meet the specific eligibility requirements of each program to actually receive benefits. 

Military Service
To determine basic eligibility for benefits the VA first considers if a person's service constitutes "military service".  Service in the United States Army, Navy, Marine Corps, Air Force and Coast Guard is considered active military service. Service in one of the five branches of the United States Armed Forces as a member of the Reserve or Air or Army National Guard can qualify as active military service under certain conditions.  Likewise cadets at the U.S. Military, Air Force, and Coast Guard academies, midshipmen at the U.S. Naval Academy, are considered to be conducting military services.  Under certain conditions attendance at a preparatory school for the MIlitary, Air Force and Coast Guard academies can also constitute military service.  Military service can also include service in certain organizations outside the five branches of the United States Armed Forces.

Active Service
Next the VA considers if the person's military service was "active".  Active, or full-time, duty in the Armed Forces meets this requirement.  Members of the Armed Forces Reserves or National Guard whose service is activated for federal purposes (such as serving in Iraq) are considered to have active service.  In some cases the VA will consider participation in training as active service.  Full-time duty in certain organizations outside the Armed Forces also qualifies, as does serving as a cadet at academies or in certain cases attendance at preparatory schools for academies.

Character of Discharge
After evaluating a person's military service and active service, the VA reviews the character of discharge.  To be considered a veteran for VA benefits purposes, discharge or release from active military service must be "under conditions other than dishonorable". 

Individuals with honorable discharges, discharges under honorable conditions, or general discharges usually are eligible for benefits.  Those discharged under other than honorable conditions, undesirable discharges, and bad conduct discharges may or may not be eligible for benefits.  Individuals with dishonorable discharges typically cannot get benefits.  For those who are deemed ineligible for VA benefits based on character of discharge, it is possible to seek a discharge upgrade in order to qualify for benefits.  This will be the subject of a later post.

Conclusion
If the VA determines that a person had active military service and was discharged under conditions other than dishonorable, that person will be deemed a veteran for benefits purposes. 
]]>Tue, 15 Nov 2011 13:52:16 GMThttp://mwadsworthlaw.com/veterans-benefits-blog/monthly-cash-disability-benefitsBelow is a brief introduction to monthly payments available to disabled veterans through the VA and through the federal social security system.  While there are many other types of benefits available to veterans the focus of this blog will be mainly on monthly disability benefits.

VA monthly disability payments
There are two types of monthly monetary awards available to veterans through the VA, service-connected compensation and VA pensions. 

1) Service-connected Compensation
The most generous is service-connected compensation.  It is pro-rated based on the veterans' disability rating, and the amount awarded may also vary based on the number of dependents a veteran has.  The amount of compensation will not be reduced by what the VA calls "countable" income.  A veteran must have been discharged under conditions other than dishonorable to be eligible for service-connected compensation.  If your discharge does not meet these criteria an advocate or attorney can seek to upgrade your discharge status so that you can meet eligibility requirements.  In addition, the disease or injury must have occurred or worsened during service, and the disability cannot be a result of willful misconduct or the abuse of alcohol or drugs.

2) VA Pensions
The other type of monetary benefits available through the VA is a VA pension.  Pensions are less generous than service-connected compensation and are reduced based on other income that the VA considers "countable".  Disabled veterans with very low incomes who are age 65 or older and who are permanently and totally disabled may be eliible for a pension.  Eligibility requires ninety (90) days or more of active military service of which at least one day was during a period of war, and a discharge under conditions other than dishonorable.  Likewise the disability must not have been incurred by willful misconduct.

Social Security Monthly Disability Benefits
Disabled veterans may also be eligible for monthly cash benefits through the social security program, social security disability income (SSDI) and/or supplemental security income (SSI).  Social Security uses a different system than the VA for determining disability.  Rather than applying a disability rating, Social Security awards benefits only to those who are deemed totally disabled.

1) Social Security Disability Income (SSDI)
Disabled veterans who have worked and paid into the social security system may be eligible for monthly SSDI payments (until retirement age when disability checks are replaced by retirement checks).  Unlike service-connected compensation, SSDI is not awarded  based on a disability rating, rather it is awarded to those who are deemed totally disabled.  Payments are not reduced based on other income.  SSDI payments vary based on an individual's previous income and the amount of Social Security (or FICA) taxes he or she has paid into the system.

2) Supplemental Security Income (SSI)
SSI is available to the elderly, blind and disabled who have low income and limited resources. Unlike SSDI, SSI payments will be reduced based on other available income.
]]>Fri, 11 Nov 2011 23:28:11 GMThttp://mwadsworthlaw.com/veterans-benefits-blog/first-postHappy Veterans Day to all of our veterans and their families.  Today and every day let us never take for granted the sacrifices they have made to secure our freedoms.  Thanks to them, we live in the greatest country of the world.

I couldn't think of a better day to launch my new blog, Veterans' Voice.  On this blog I will speak for veterans in plain English to untangle the complex bureaucracy of veterans benefits.  My goal will be to make the benefits process as clear and understandable to veterans as possible.   ]]>