Radiation Exposure during Military Service

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For Veterans who participated in a radiation-risk activity during service (including “Atomic Veterans”), the VA assumes that certain cancers are related to their exposure.  While the VA contends that the risk of diseases from military radiation exposure is low, they have conceded that any Veteran who served in any of the following situations or circumstances may have been exposed to radiation.  As such, Veterans may be eligible for disability compensation and health care for these diseases and their dependents may be eligible for survivors’ benefits.

Fukushima nuclear accident
March 12 to May 11, 2011, following a nuclear accident on March 11, 2011.

Radiation-risk activity (includes “Atomic Veterans”)
Nuclear weapons testing and the American occupation of Hiroshima and Nagasaki.

Military occupational exposure
Various military occupations, such as nuclear weapons technicians and dental technicians.

Depleted uranium
Veteran must have been involved in the live fire of depleted uranium munitions.

LORAN radiation
U.S. Coast Guard Veterans who worked at LORAN (Long Range Navigation) stations from 1942 to 2010.

McMurdo Station, Antarctica nuclear power plant
Veterans who served at the McMurdo Station, Antarctica, from 1964 to 1973.

Nasopharyngeal (nose and throat) radium irradiation treatments
Veterans treated ear damage from pressure changes from 1940s through 1960s.

Radiation therapy
Veterans treated for service connected cancer.

Presumptive diseases related to ionizing radiation

Cancers of the bile ducts, bone, brain, breast, colon, esophagus, gall bladder, liver (primary site, but not if cirrhosis or hepatitis B is indicated), lung (including bronchiolo-alveolar cancer), pancreas, pharynx, ovary, salivary gland, small intestine, stomach, thyroid, urinary tract (kidney/renal, pelvis, urinary bladder, and urethra) Leukemia (except chronic lymphocytic leukemia) Lymphomas (except Hodgkin’s disease) Multiple myeloma (cancer of plasma cells) These Veterans don’t have to prove a connection between these diseases and their service to be eligible for disability compensation. Their survivors also may be eligible for survivors’ benefits if the Veteran dies as the result of one of these diseases. Other diseases associated with radiation exposure VA recognizes that the following diseases are possibly caused by exposure to ionizing radiation during service: All cancers Non-malignant thyroid nodular disease Parathyroid adenoma Posterior subcapsular cataracts Tumors of the brain and central nervous system Eligibility for disability compensation or survivors’ benefits depends on how much radiation the Veteran received and other factors, such as the period of time between exposure to radiation and the development of the disease. VA decides these claims on a case-by-case basis. VA also will consider the possibility that other diseases not listed above were caused by radiation, if supported by medical or scientific evidence. To be eligible for compensation, VA must be able to establish that it is at least as likely as not that a Veteran’s disease was caused by his/her exposure to radiation during military service.

How VA Confirms Radiation Exposure

during Service Veterans’ military records contain records of radiation exposure or accounts describing duty-related exposure. Veterans and their survivors do not need to contact the Department of Defense (DoD) to confirm radiation exposure activity before applying for VA compensation benefits. VA will request this information from DoD when a Veteran or a Veteran’s survivor applies for disability compensation or survivors’ benefits for health problems associated with the exposure. VA confirms exposure VA asks DoD’s Defense Threat Reduction Agency (DTRA) to confirm Atomic Veterans participation in U.S. atmospheric nuclear tests from 1945 to 1962, and the occupation forces of Hiroshima and Nagasaki, Japan, through a program called the Nuclear Test Personnel Review. VA also asks DTRA to provide the actual or estimated radiation dose received by a Veteran when necessary. VA uses the DTRA report on LORAN radiation exposures (1.9 MB, PDF) to confirm the radiation dose assessment for Veterans who worked at LORAN (Long Range Navigation) stations. For Veterans exposed to radiation at Fukushima, the DoD’s Operation Tomodachi Registry provides individual dose information. – See more at: http://www.publichealth.va.gov/exposures/radiation/how-va-confirms-exposure.asp#sthash.P67mK1gx.dpuf

Hill & Ponton, P.A.

Convalescent Rating for Service Connected Disabilities

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Anytime a Veteran requires surgery OR extended hospitalization (21 days or more) for a service connected disability (commonly referred to as Chapter 29/30 benefits – a reference to CFR 38 4.29/30 that detail the requirements and entitlement benefits), there is an associated convalescent period.  The convalescent period for hospitalization will apply for as long as the Veteran is hospitalized beyond the initial 21 days.  For all convalescent periods, a total disability rating (100%) is assigned “without regard to any other factors when it is established by a surgical report from a hospital or outpatient release letter that verifies entitlement for such convalescence is warranted.”  It is important to note that at least one of the following criteria must be met in order to receive this entitlement: the surgery must necessitate at least one month of convalescence (most outpatient surgical procedures qualify), OR the surgery has severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; OR immobilization by cast, without surgery, of one major joint or more.

The effective date for the convalescent rating will be the date of hospital admission or outpatient treatment and become effective for pay purposes from the first day of the following month.  Depending upon the type and purpose of the surgical procedure, the rating for the disability will either return to the previous rating or a physical examination will be scheduled and considered prior to assigning a new rating.  For example, the typical convalescent period for a simple knee debridement for a 10% service connected knee condition would result in a one month total disability rating (100%), then return to its previous rating of 10%, assuming no complications with the procedure.

Extensions of Convalescence Ratings

The VA has charts for convalescence periods associated with differing surgical procedures affecting all their disability ratings; therefore, regardless what a Veteran’s doctor may prescribe as a convalescence period at discharge doesn’t necessarily mean the VA will grant that same period for a total disability rating (100%).  Nonetheless, convalescent ratings may be extended by 1, 2, or 3 months beyond the initial period if there are complications that warrant continued convalescence AND it is deemed by a doctor that such convalescence is necessary.  For extensions of 1 or more months up to 6 months beyond an initial 6 months period (or more, such as a 13 month convalescence period for a major joint replacement), a doctor’s statement AND approval of the Veterans Service Center Manager is necessary to continue a total disability rating (100%).

Potential Effect of Convalescent Ratings on the Veteran’s Overall Combined Rating

It is important to note that if a Veteran has a surgical procedure or qualifying hospitalization on a service connected disability and has OTHER service connected disabilities (either singularly or combined) that equal(s) 60% disabling or higher, then that Veteran is entitled to special monthly compensation called Housebound for the duration of the convalescence period.  This consideration is automatically calculated and paid at the time of the VA Notification letter / Rating Decision that granted the convalescence.

Read more of our blogs or get a free case evaluation at our website. 

Beneficiary Travel Benefits

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Did you know that you may be eligible for mileage reimbursement or special mode transport in association with obtaining VA health care services?  You qualify if you have a service-connected (SC) rating of 30 percent or more, traveling for treatment of a SC condition, receive a VA pension, your income does not exceed the maximum annual VA pension rate, or for a scheduled compensation or pension examination.

Special Mode Transportation

You qualify for special mode transportation (ambulance, wheelchair van, etc. if your medical condition requires an ambulance or a specially equipped van as determined by a VA clinician,

your income does not exceed the maximum annual VA pension rate, your medical condition requires an ambulance or a specially equipped van as determined by a VA clinician, you meet one of the eligibility criteria above, and the travel is pre-authorized (authorization is not required for emergencies if a delay would be hazardous to life or health.)

 Mileage Rates

Currently, the VA’s mileage reimbursable rate for appointments is $0.415 (41.5 cents) per mile.

Scheduled appointments qualify for round-trip mileage, while unscheduled visits may be limited to return mileage only.

Deductible

The VA charges a deductible on travel pay of $3.00 one-way ($6.00 round trip), subject to a monthly cap of $18.00. Upon reaching the $18.00 deductible or 6 one-way (3 round) trips, whichever comes first, travel payments made for the balance of the month will be free of deductible charges.  A waiver of the deductible will be provided if you are eligible for travel and you receive VA non-service connected pension, your previous year or current calendar year’s income does not exceed, or your projected current calendar year’s income does not exceed the national means test income threshold or you are traveling for a scheduled compensation and pension examination (required for a pending VA disability claim.)

For questions regarding eligibility or concerns with your travel pay, see the billing office at your local VA Medical Center.

Hill & Ponton, P.A.

VA Benefits – The Claims File

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When applying for disability benefits from the VA and going through the appeals process to get compensation, most veterans have a lot of questions when getting started. Maybe you wonder what to do once you have filed your appeal, or what you can do to help your claim, or simply why it’s taking so long to get the process moving. When we first take on a case, many veterans call within a few weeks or months wanting to know the status of their case, what we have done, and why the case is not moving along faster. While we cannot speak for the VA, we can shed some light on one of the most important facets of the claim that we spend a significant amount of time on: the Claims File.

The first few months of an appeal tend to be stagnant solely because we are waiting for the VA to send us the veteran’s claims file. We cannot proceed with a claim until we receive this file from the VA. This is a crucial component to establishing a claim for disability benefits because it contains the information we need to understand the claim and how to prove it. And unfortunately, obtaining this file comes with a wait-time.

What is the C File?

The Claims file, also known as the C File, is the compilation of all of the documents the VA has pertaining to the veteran since released from service. These are the records that the VA has looked at and taken into consideration when evaluating a veteran’s claim for compensation. It contains everything the VA has collected over the course of a claim, from the initial claims, to the decisions made by the VA as well as service records, service treatment records, medical records (from VA facilities and private doctors), compensation and pension exams, social security records, and buddy statements (witness statements from family and friends) filed or used in support of the claim. Because it contains so many documents, it tends to be hundreds to thousands of pages long, and sometimes with pages out of order, duplicated, or missing.

How do you get it?

To get the C File, you have to request it from your local Regional Office (RO) under the Freedom of Information Act (FOIA). It takes the RO anywhere from 2-6 months on average to process the request and provide a copy of the C file. Unfortunately, sometimes it can take much longer, even up to a year. When the RO fails to produce the file in a reasonable amount of time, you can file an appeal to compel them to produce it. Getting disability benefits is a long and difficult process, and unfortunately the long wait tends to start from the very beginning with the first crucial step of obtaining the C File.

Why is it so important?

Once you acquire a copy of the C File, it is best to review it thoroughly to assess all of the evidence. It is important to look at the C File piece by piece so that you know what evidence the VA has taken into consideration when making a decision and what is still missing or what would be helpful to prove your claim. Doing this not only helps you determine what evidence is favorable, it also helps to see what has already been done on the claim and what still needs to be done. You’ll want to look for the history of each claim to make sure that there are no decisions pending or claims that were never considered. Finding mistakes from the VA could potentially lead to a clear and unmistakable error, and lead to past due benefits. The VA may also have not fully developed a claim, such as by failing to request certain medical or service records that would have been helpful. And remember, the VA has a duty to assist veterans in developing their claims, including obtaining records.

Another way that we use the C File is to obtain additional medical evidence through an Independent Medical Examination or Opinion. Usually when there is an unfavorable Compensation & Pension Exam, a good way to rebut that evidence is with a medical opinion that contradicts the C&P Exam. Once we determine that a private medical opinion is needed, we determine what kind of medical opinion we need, such as a nexus statement from a psychiatrist or an increased rating opinion from a cardiologist. We then usually send the C File to the doctor for review with the relevant medical records and C&P exams, to be able to formulate a comprehensive and thorough opinion.

This is why the C File is so important, and why we have to wait until we receive it before we can effectively take action on the appeal.

Author Melanie Franco, Hill & Ponton, P.A. Attorney

Not Just Tremors –Disabilities Secondary to Parkinson’s Disease

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While most people tend to think of Parkinson’s disorder as a neurological movement disorder, and it most certainly is, many people do not realize that other systems in the body can also be severely affected by Parkinson’s.

Often, the same chemical exposure (for example: Agent Orange,) can also cause other disorders, such as ischemic heart disease. However, often it is the Parkinson’s itself, or the medication used to treat it that is the causal factor in the development of a new disorder. Whether a veteran’s Parkinson’s was caused by exposure to the TCDD in agent orange, pesticides, trichloroethylene, or its origins are unknown, Parkinson’s cause many secondary disabilities.

Cardiovascular Complications

Parkinson’s is known as a neurodegenerative disorder; that is, it causes neurons to degenerate or decay. The most famous area for PD degeneration is in an area of the brain called the substantia nigra, where Parkinson’s causes the death of neurons that generate dopamine, a neurotransmitter which is involved with movement. However, more recent studies have also shown that Parkinson’s also attacks nerves in the heart which produce another neurotransmitter, noradrenaline. This typically takes place in the left ventricle, and can have many complications.

Noradrenaline is the primary messenger used by the sympathetic nervous system, the system of the body used to control things we don’t consciously think about: the beating of the heart, breathing, blood pressure, even how dilated our pupils are at any given time.

The most common cardiovascular problem related to Parkinson’s is orthostatic hypotension, a sudden drop in blood pressure when standing or sitting upright. Many Parkinson’s patients may need to get out of bed or out of a chair extremely slowly to avoid passing out. This can cause FURTHER secondary disabilities, including orthopedic or muscular trauma due to falls.

Medications such as Levodopa can be a lifesaver to Parkinson’s sufferers, however up to 10% of those medicated by PD medications such as Levodopa, Carbidopa, and Entacapone experience cardiovascular symptoms such as irregular heartbeat, hypertension, ischemic heart disease, and stroke. One study found that 2.4% of patients who were taking carbidopa/levodopa had cardiovascular ischemic events, compared to only 1.1% in patients taking placebo.

A 2013 study found a nearly three-fold increase in risk of stroke in patients with Parkinson’s. There is also a two-fold increase in risk of heart failure, and a 50% increase in risk of dying from heart failure in Parkinson’s patients.

Orthopedic Problems

While Parkinson’s is a neurological disorder, it can quite frequently cause orthopedic problems. Falls from Parkinson’s are frequent, both from the movement symptoms as well as the orthostatic hypotension noted above. As Parkinson’s frequently attacks the elderly, their bones may be brittle and easily break during a fall. To make matters worse, Parkinson’s sufferers have an increased risk of developing osteoarthritis and osteoporosis. This is believed to be due to a loss of bone mass resulting from the fact that PD sufferers tend to move around a lot less than non-sufferers.

In those sufferers who have had severe falls or needed spinal or other surgery, the tremors associated with Parkinson’s often severely affect recovery, or make total recovery nearly impossible. A cast is designed to reduce movement of a recovering limb; involuntary tremors are not helpful in this regard.

Psychiatric Problems

Both Parkinson’s itself as well as the medications used to treat it can have severe psychiatric effects that can often be extremely debilitating. Dementia is common, and PD sufferers often experience cognitive problems, attention problems, as well as depression, anxiety and even psychosis.

As I mentioned above, the primary problem in Parkinson’s disease involves the creation of dopamine, and while dopamine is involved in movement, it also is involved in addictive behavior. Often, bizarre behavioral changes happen in patients who are being treated with Parkinson’s medication, such as sexual addiction, compulsive gambling, binge eating, and overuse of medications.

Other Problems

As I mentioned above, Parkinson’s affects the parts of our neurological system that works automatically, without effort. We do not will food along our digestive tract, or decide to start sweating more; it just happens. As such, many seemingly smaller problems can arise. Many Parkinson’s sufferers experience constipation, loss of bowel and/or bladder control, excessive sweating, vision problems, and even the loss of the sense of smell (anosmia.)

Sleep problems are extremely common in Parkinson’s patients. REM disorders, where patients actually act out their dreams, can be extremely dangerous, and occur frequently in Parkinson’s. Other patients experience insomnia, others cannot stay awake. In fact, 13% of Parkinson’s patients who are on medication experience sudden sleep attacks.

50% to 80% of patients with Parkinson’s disease have abnormal glucose tolerance which may Parkinson’s medication may worsen. However, the link between diabetes and Parkinson’s is not yet fully understood. Diabetes may be secondary to Parkinson’s, particularly if the patient is obese, is experiencing binge eating due to medications, and is not moving as much as they used to. However, some research actually points to diabetes as being a possible culprit in the development of Parkinson’s, so this association may go either way.

Parkinson’s is an insidious and difficult disorder to experience, and we can see that it is much more than just some tremors. If you have service-connected Parkinson’s, you need to be fully aware of these secondary conditions in order to receive the medical care and compensation you deserve.

Author Chris Amidon, Hill & Ponton, P.A. Claims Advocate

Camp Lejeune Veterans – The VA Grants Presumptive Service Connection for 8 Conditions

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Hundreds of thousands of people were exposed to toxic chemicals in the water at Camp Lejeune from the 1950s to the late 1980s. Two water treatment facilities were polluted by chemicals such as trichloroethylene (TCE), benzene, perchloroethylene (PCE), and vinyl chloride. The VA has been providing health care and reimbursement for medical costs to veterans and their family members stationed at Camp Lejeune with 15 illnesses related to the toxic water exposure, but they had not awarded presumptive status to any condition…. until now.

Presumptive Service Connection for Camp Lejeune Claims

After years of studies and medical research the VA has finally acknowledged that certain medical conditions are linked to service at Camp Lejeune, and will be granting presumptive service connection for those conditions. This is the latest development in a battle for benefits that has lasted decades. Veterans stationed at Camp Lejeune between 1957 and 1987 will no longer have to prove that their condition was caused by service if it is 1 of the 8 conditions. To be eligible for presumptive service connection, veterans must have served at Camp Lejeune between August 1, 1953 and December 31, 1987. Presumptive service connection will also extend to those who were in the Reserve and National Guard and served at Camp Lejeune during that time period. The presumption of service connection will apply to new and pending claims. Additionally, veterans who have had their claims denied previously should take the necessary steps to have their claim re-evaluated.

The following conditions will be granted presumptive service connection for qualifying Camp Lejeune veterans:

  • Kidney cancer
  • Liver cancer
  • Non-Hodgkin Lymphoma
  • Leukemia
  • Multiple myeloma
  • Scleroderma
  • Parkinson’s disease
  • Aplastic anemia (or other myelodysplastic syndromes)

The list of conditions for presumptive service connection at least partially overlaps the list of conditions that are eligible for free health care, but as of right now there is no word on whether all 15 conditions on the VA health care list will be added to the presumptive list. So, just because you don’t have one of the eight conditions that has been granted presumptive service connection doesn’t mean that your condition won’t eventually be added to the list. Just like the Agent Orange presumptive list, conditions will likely be added over the years as more medical research comes to light.

What Does It All Mean?

Once the VA issues a final regulation, the eight conditions will officially receive presumptive service connection. This means that it will become much easier for Camp Lejeune veterans that have one (or more) of the eight conditions to get the disability benefits they deserve. In order to establish successful claims, Camp Lejeune veterans have had to show evidence of a current diagnosis, evidence of an in-service accident or event, and evidence that the current diagnosis was caused by the in-service event. In other words, Camp Lejeune veterans have had to prove direct service connection. With the new presumptive list, Camp Lejeune veterans will no longer have to prove that their condition (if it is one of the above eight conditions) was caused or aggravated by their military service. Instead, Camp Lejeune veterans will only need to prove that they have a current diagnosis and that the served at Camp Lejeune during the specified time period.

Until the VA issues a final regulation, disability claims for the above conditions will continue to be decided according to the current laws. So, if a claim for service connection for one of the eight conditions would be denied under the current regulations, it will still be denied until the proposed regulation becomes official. Does that mean you should wait until the regulation is final to file a claim if you have not already done so? NO. It is best to file your claim now in order to establish your effective date.

Although presumptive service connection will lighten the amount of evidence needed to establish a successful claim, there are still errors the VA can (and likely will) make. Getting service connection is the first battle, and an important one at that. However the fight might not be over. Be sure to check the rating percentage assigned to your condition along with the effective date assigned. The VA frequently gets the rating and effective date wrong, and this can have a potentially huge impact on the amount of benefits you receive.

Just like with effective dates and rating percentages, the VA makes mistakes when it comes to secondary conditions and evaluating the symptoms of a condition. Don’t forget to consider that you may have, or develop, conditions secondary to one of the conditions on the presumptive list. For example, if you suffer from depression because of your service connected condition, the depression is automatically service connected (you would not have to prove the depression was caused by military service). Also, be sure to pay attention to the symptoms of your service-connected condition. Sometimes symptoms can receive a separate rating. For example, a veteran with scleroderma may suffer from Raynaud’s syndrome. Raynaud’s syndrome has its own rating criteria and should be rating separately from the scleroderma. By paying attention to things like secondary conditions and symptoms that can receive their own rating you can ensure that you receive all of the benefits you are entitled to.

Author Anne Thorn, Hill & Ponton, P.A. Attorney

An Overview of Effective Dates for VA Benefits

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When the VA awards compensation benefits, the issues the VA decides are whether the disability is service connected, the rating of the disability, and the effective date of the award. The effective date is a complicated aspect of VA law that contains several nuances and exceptions, but here we will look at a general overview to provide a basic understanding of effective dates. The effective date is the date from which the veteran is entitled to compensation, or the date from when the change in benefits should be paid. The effective date is usually the date the claim was originally filed, but there are several scenarios where this is not the case. We will begin by going over the general rules, and then take a look at some special circumstances and exceptions.

Once you are awarded disability benefits, the VA sends you monthly payments of what you are entitled to for your disability. When you win your claim, you are also entitled to a lump sum payment of retroactive benefits. This payment is all of the money you would have received had you been paid each month since you filed your claim. The date from which you are entitled payment is the effective date. The amount of retroactive benefits is the sum of every month’s payment, starting the first day of the month following the effective date up until the date of payment. You will want the earliest effective date possible because the amount the VA owes depends on how far back the effective date is assigned. The further back the effective date, the more money the VA owes you.  To find out more about getting an earlier effective date, click here.

The VA assigns an effective date whenever it makes a decision to award, increase, reduce, suspend, or terminate benefits. Each of these will have different rules for assigning an effective date. When awarding benefits, the effective date is usually going to be the date the claim was filed through the standardized form 526EZ. The general rule is that the effective date is either the date the VA receives the claim or the date that entitlement to the benefit arose, whichever is later.

One example of where the general rule does not apply is when attempting to reopen a claim. This scenario comes up when an original claim is denied and it was not appealed within the required timeframe. In order to pursue the claim, you will have to file to reopen the claim under new and material evidence. When you file to reopen a claim, the effective date is the date the VA receives the claim to reopen, not the date of the original claim. This is why it is so important to be aware of deadlines to appeal decisions. You want to keep the earliest effective date possible and if you miss the deadline, you lose that earlier effective date. For more information on this scenario, click here.

Another scenario with a special rule for effective dates is when you file a claim for an increased rating on an already service connected disability. When increasing an award, the effective date is the date the claim for increase was filed (not the date of the original claim), or the date entitlement to an increase arose, whichever is later. The date of entitlement to an increase means the date the disability increased in severity. Because it may be difficult to determine an exact date for when a disability increases in severity, there is an exception to help calculate the date entitlement arose.  If there is ascertainable evidence that the increase in disability occurred within the year prior to the date of the claim for increase, the effective date may date back to one year before the claim for increase was filed.  For a more in-depth look at the rules on effective dates for increased ratings, click here.

There are more exceptions to each of these rules, where a veteran may be awarded an effective date earlier than the date they filed their claim. A grant of clear and unmistakable error (CUE), for example, can date the effective date back to earlier claims that were previously denied. There is also an exception for when a claim for compensation is filed within one year after discharge from service, if the disability existed at that time, then the effective date can be assigned as the date after discharge. There are also special rules for certain types of claims, such as TDIU and Agent Orange. Be sure to visit other blog posts, such as this one and this one, for more information on each of the special rules and exceptions.

Author Melanie Franco, Hill & Ponton, P.A. Attorney

5 Ways to get Service Connected for VA Benefits

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There are five ways to establish service connection for a disability:

  • Direct service connection
  • Secondary service connection
  • Service connection by aggravation
  • Presumptive service connection
  • Service connection for injuries caused by VA health care

Direct service connection is the most common way to acquire benefits for a disability. It is when the disability can be linked to service through a medical nexus. You need evidence of 3 things: 1) a disability 2) an incident in service, such as a disease, injury, or event and 3) a nexus linking the two.  The nexus is usually going to be a medical statement concluding that it is at least 50% likely that the current disability is related to the incident in service. This is the direct way to establish service connection.

Secondary service connection is when a disability is caused by or aggravated by an already service connected condition. The burden of proof remains that it is as likely as not that the second disability was caused or aggravated by the first. An example of this would be if the veteran has a service connected ankle injury that causes the veteran to develop a limp, which then causes back problems for the veteran. If there is medical evidence that the back problem is as likely as not caused by the limp and ankle injury, the veteran can be compensated for the back problems through secondary service connection.

Service connection by aggravation is when a veteran has a preexisting condition that is aggravated during service. If a pre-existing condition worsens during service, it is presumed that it was aggravated by service, and therefore service connected. The preexisting condition has to have been noted in the military entrance examination. The VA may try to show that the condition was aggravated due to the natural progression of the disease, and if they succeed, the veteran will not be entitled to service connection. The veteran also has to be able to prove that the aggravation of the condition is not a temporary increase in the severity of the condition. A medical opinion stating that the aggravation of the condition was caused by service is the best evidence to prove the condition was not worsened from the natural progression of the disease. This then establishes service connection by aggravation.

Presumptive service connection is when the veteran’s disability did not start in service, but is presumed to be connected to service because of a VA regulation. The veteran does not have to prove a connection between the condition and service, it is already presumed. There are however, certain requirements to qualify under these presumptions, such as the disability appearing within a certain period of time, or the veteran having served for a specific amount of time, during a specific time period, or at a specific location. The veteran will need to show either that the disability was diagnosed during the specific period required, or that the symptoms of the disability manifested during that time. There are conditions presumed connected to service based on VA laws. For example, there are certain diseases presumed to be service connected for veterans exposed to Agent Orange, such as diabetes mellitus type 2, Hodgkin’s disease, Ischemic heart disease, coronary artery disease, and Parkinson’s disease. There are also chronic conditions that are granted service connection if they arose within an applicable time limit after service, usually one year following service with a few exceptions. Some examples of these chronic conditions are arthritis, diabetes mellitus, schizophrenia, lupus, and multiple sclerosis. Then there are conditions that are presumptively service connected for service in the Persian Gulf, known as Gulf War Syndrome. The veteran must have served in Southwest Asia from August 1990 through the present, in operations such as Desert Shield, Desert Storm, Iraqi Freedom, and New Dawn.  The conditions are either undiagnosed illnesses (cannot be diagnosed by a physician), or medically unexplained chronic multi-symptom illnesses (the illness is diagnosed but the cause is unknown). A few examples of these are fibromyalgia, chronic fatigue syndrome, and functional gastrointestinal disorders.  The full list of diseases and conditions can be found here.

The last way to establish service connection comes from injuries caused by VA medical care. When there is an injury or aggravation of a previous injury that was caused by VA hospitalization, VA medical surgery or treatment, a VA exam, or vocational rehabilitation, it will be presumed that the injury is service connected. The veteran can seek compensation through service connection, or file a completely separate claim under the Federal Tort Claims Act or under 38 USC § 1151, similar to a medical malpractice claim against the VA.

Each of these ways of establishing service connection presents its challenges but arrive at the ultimate goal of establishing service connection to be compensated for your injury or disability.

Author Melanie Franco, Hill & Ponton, P.A. Attorney

Special Compensation Types Available to a Veteran: TDIU, CRSC, and SMC

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After you receive your rating decision and are awarded service connection by the VA, you may think you’re finally done with your fight.  For many, that may be just be the case.  However, there are other types of compensation available if you meet certain criteria.  These are Total Disability based on Individual Unemployability (TDIU), Combat Related Special Compensation (CRSC), and Special Monthly Compensation (SMC).   Each of these requires specific criteria to qualify and each are routinely overlooked.

With that in mind, a brief overview of each of these is warranted.  TDIU, much like your standard VA compensation, is based on the veteran’s ability to work.  The VA rates disabilities based on how they affect a veteran’s earning capacity.  TDIU (or IU) is also based on this, but is similar to “gap insurance” that you would purchase for your car.  When rating TDIU, the VA must review if the veteran is capable of holding “substantially gainful employment.”  If his disability prevents this, he can receive 100 percent compensation even though his disabilities are not rated as such.  This is discussed in much further detail in the links above.

CRSC is another additional benefit that is available to veterans.  CRSC was created for veterans with “combat-related” disabilities.  It is a tax free entitlement that is paid along with any other retired pay or disability that you may already be receiving.  (It is important to note that CRSC is not a VA benefit, but is instead provided by the Department of Defense).  If a veteran qualifies for CRSC, DFAS will audit his account to determine if he is due retroactive benefits.  To qualify for CRSC, a veteran must:

  • Be entitled to and/or receiving military retired pay
  • Be rated at least 10 percent by the VA
  • Waive your VA from retired pay
  • File a CRSC application with you Branch of Service.

The third type of compensation mentioned above, and the focus of this post, is SMC.  SMC is meant to provide additional compensation to veterans for their impairments in daily life.  Whereas the other compensations are based on the veteran’s earning capacity, SMC is meant to compensate for non-economic factors such as personal inconvenience, social inadaptability, or the profound nature of the disability.  SMC comes in a variety of flavors, and each is identified by a letter between (k) and (s), and each of these letters relate to a different monthly compensation rate.

SMC monthly rates start at an addition $99 per month for SMC(k) and increase from there.  One type.  A type of SMC that is especially helpful for veterans is SMC(s).  SMC(s) is available when a veteran (1) has a 100 percent disability rating and another disability at or combing to 60 percent or more, or (2) who is substantially confined to his dwelling or immediate premises as a result of a service connected disability.  It is important to note here that the VA has a tendency to add the housebound requirement to (1) which is the wrong way to interpret the statute.

In regard to the 100 percent rating mentioned, it is important to note that TDIU mentioned above also counts as 100 percent for purposes of SMC(s).  As stated in the discussion of TDIU, it is a gap filler can elevate a lower percentage to a higher percentage for compensation purposes.  However, because that disability has been used to get to 100 percent, it cannot be used for the additional 60 percent requirement.  An example would be, a veteran can be rated at 60 percent for his PTSD and be granted TDIU based on his PTSD.  The PTSD is then, for SMC purposes, considered to be a 100 percent rating.  The veteran must have another disability at or totaling to 60 percent to qualify for SMC(s).  The “totaling to” language follow because multiple disabilities can be combined to a single percentage because of a common core.  An example of this would be a limp on the left leg causing problems with the right leg, these can be combined for rating purposes because there is a common etymology.

The third type of SMC to discuss today is Aid and Attendance (A&A).  To qualify for A&A benefits, a veteran must show that he requires regular assistance and not necessarily constant assistance of another.  A&A is meant for a veteran that needs help performing everyday living activities, or protecting himself from hazards of his daily environment.  The VA must consider a veteran’s personal functions and connection with the veteran’s condition as a whole.  A veteran should also receive A&A when he is bedridden because of his service connected disability or disabilities, he is a patient in a nursing home because of mental or physical incapacity, or is blind (or nearly blind to have 5/200 vision in both eyes).

The VA is supposed to consider whether a veteran is entitled to both SMC and TDIU whenever the evidence before them shows potential entitlement, however, it has tended to overlook these issues on a regular basis.  Therefore it is important to know if you qualify for SMC or TDIU to get the benefits owed to you.  It is likewise important to ask questions regarding this of your representative or the VA.

Author Nicholas Simpson, Hill & Ponton, P.A. Attorney

Gulf War Veterans: FAQ

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1. Do I qualify as a Gulf War Veteran?

Only qualifying veterans can file a claim for Gulf War Syndrome under the regulation 38 C.F.R. § 3.317(a). A qualifying Gulf War Veteran is any current or former member of the United States Armed Forces who served in the Southwest Asia Theater of Operations for at least one day after August 2, 1990.

2. Is Gulf War Syndrome a real disease?

Simply put, yes, gulf war syndrome is a real disease. The VA does not recognize the term “Gulf War Syndrome/Illness,” instead they use the term “medically unexplained chronic multi-symptom illness. The important thing to know is that these two terms mean the same thing, but it is helpful to use the terminology that the VA uses when filing a claim.

3. What are the common symptoms of Gulf War Syndrome?

Upon return from the Gulf War, some veterans began reporting multiple different symptoms including:

  • Fatigue
  • Skin rash
  • Headache
  • Muscle pain
  • Joint pain
  • Memory disturbance and memory loss
  • Difficulty concentrating
  • Respiratory problems
  • Sleep disturbances
  • Diarrhea

4. What are the hazardous exposures associated with Gulf War service?

Gulf War veterans may have been exposed to a wide range of chemical and other environmental hazards during their military service. These exposures include:

  • Oil well fires and open burn pits
  • Sand, dust, and other particulate matter
  • Pesticides
  • Vaccinations (including anthrax and botulinum toxoid)
  • Chemical and biological warfare agents
  • Depleted uranium
  • Nerve gas and other nerve agents
  • Toxic embedded fragments (shrapnel and other metals that remain in the body after injury)
  • CARC paint (chemical agent resistant coating used on military vehicles to resist corrosion and chemical agents)

5. What are some tips for my Gulf War claim?

Gulf War claims are difficult to prove. It is important to document your symptoms and their severity, and sort out which of your symptoms have received a diagnosis versus which of your symptoms remain undiagnosed. Keep a log of details regarding the symptoms you have, and remember to be specific. For example, if you have headaches don’t just say “I have a headache that lasts all day.” Instead, lists information such as how it feels when the headaches starts, the location of your pain, whether you have to lay down in bed until the headache goes away, etc.

6. Do I get presumptive service connection?

Presumptive service connection will make the difficult battle to obtain disability benefits for a Gulf War claim a little less complicated. In order to receive presumptive service connection you will have to show that:

  • You qualify as a Gulf War veteran
  • You have what is called a “qualifying chronic disability” AND
  • Your disability arose while you were in service, or, your disability arose after you came home and meets the requirements for a 10% rating or higher.

The VA presumes the following conditions as related to Gulf War service:

  • Chronic Fatigue Syndrome
  • Fibromyalgia
  • Functional gastrointestinal disorders (IBS, dyspepsia, vomiting, constipation, bloating, abdominal pain syndrome and dysphagia)

Furthermore, undiagnosed illnesses with symptoms that are considered as “medically unexplained, chronic (lasting 6 months or more) multi-symptom illnesses” receive presumptive service connection.

7. Could my family’s health be affected as well?

Studies have been done that suggest there is a higher rate of birth defects in children of Gulf War veterans, but the VA does not officially recognize this finding.

Reports have also suggested that family members and those in close contact with Gulf War veterans have experienced similar symptoms that the veteran suffers from. One hypothesis is that this could be the result of contamination by chemical substances brought home on veterans’ uniforms and gear.

There are no conclusive findings regarding the health of Gulf War veterans’ family members. However, the VA has provided free medical examinations to family members of Gulf War veterans who are enrolled in the Gulf War Registry (discussed below).

8. What is the Gulf War Registry?

In response to veterans’ health concerns after returning from operations in the Gulf, the VA developed The Persian Gulf War Health Registry of veterans who served in the Southwest Asia Theater of Operations during the Persian Gulf War. This registry is used as a means of reporting and identifying illnesses among these veterans and alerts veterans to possible long-term health problems that may be related to environmental exposures during their military service in the Gulf. The registry lists each veteran who served in the Persian Gulf War and who:

  • Applies for VA care or services
  • Files a claim for disability compensation based on their Gulf War service
  • Dies and is survived by a spouse, child, or parent who files a claim for dependency and indemnity compensation on the basis of the veteran’s Gulf War service
  • Requests the registry examination from the VA, or
  • Receives a health examination from the Department of Defense and requests inclusion in the registry.

The VA and the Department of Defense both offer a free special registry examination to any Gulf War veteran who has health concerns due to their service. The examination is a complete physical exam and includes obtaining information about your exposure and medical history, laboratory tests, and a physical exam. At the very least, the registry examination may help researchers learn more about the health problems associated with Gulf War veterans.

In order to be eligible for the Gulf War Registry Exam a veteran must have served in the Gulf during Operation Desert Shield, Operation Desert Storm, Operation Iraqi Freedom, or Operation New Dawn.

Author Anne Thorn, Hill & Ponton, P.A. Attorney