Presumptive Conditions … … Agent Orange, Gulf War, PTSD

Empty Agent Orange Barrels

Who is a Veteran?

A Veteran:

Served in the active military

Released from service “under conditions other than dishonorable”

What is Service Connected Disability Compensation?

Money paid to veterans who are disabled by an injury or illness that was incurred or aggravated during active military service. These disabilities are considered to be service connected.

Amount of compensation is determined by the VA Regional Office based on the level of disability of the veteran referred to as a “Rating”.

Establishing a Claim for Service Connected Disability

CompensationFive Elements to Establish a S/C Disability Claim:

(1) Veteran Status Discharged under conditions other than

dishonorable

(2) Existence of a current disability Medical diagnosis of a current disability by anyone qualified & trained to offer a diagnosis including nurse practitioner, doctor, psychiatrist, psychologist, chiropractor, social worker and professional counselor. [generally, statements from veterans will to satisfy this requirement]

Establishing a Claim for Service Connected Disability

Compensation(3) Connection between service and the current

disability Medical evidence (or in certain circumstances lay evidence) of in-service incurrence or aggravation of a disease or injury that is not the result of the veterans own willful misconduct alcohol or drug abuse AND Medical evidence of a link or nexus between the in-service incurrence or aggravation (of a disability that existed before service but was aggravated in service) and the current disability.

Standard – “as likely as not” that the disability is caused by the in service even Examples: cancer diagnosed during service; injured leg during parachuting exercise; gun shot wound during combat; car accident while on leave

Establishing a Claim for Service Connected Disability

CompensationThere are five different legal theories that can be used to show

that a disability is linked to service:

1. Direct: injury or death during service 2. Secondary service connected: when a disability is the

result of another service connected disability [i.e. service connected

anxiety condition causes hypertension] 3. Presumptive: veterans with certain diseases are

presumptively service connected [i.e. Exposure to herbicides while

serving in Vietnam; conditions related to being a POW]

4. Aggravated: noted pre-existing condition or disease is aggravated

during service5. Medical Malpractice – injury or death sustained at a VA Hospital/

Medical Center

Establishing a Claim for Service Connected Disability

Compensation(4) Degree of disability

Assessment by a VA rating officer based on average impairment of earning capacity

(5) Effective date Date from which claim will be

paid; file claim immediately to preserve the earliest possible effective date

Establishing a Claim for Service Connected Disability

Compensation No compensation if the injury has

healed

No compensation for pre-existing or congenital disorders

Pain is not a disability

Special Rules for Combat Veterans

Trying to Prove Service Connection Because detailed recordkeeping is not possible in combat

situations lay statements can be accepted as proof that a disability occurred (or was aggravated) in combat

The statements must be consistent with the circumstances, conditions or hardships of the veterans service

Combat veterans can use their own statements, buddy statements or statements of family members or others

Must still show that you suffer from a current condition and that the condition is linked to the incident in service

Possession of certain award and decorations or mention of such awards or decoration in a vets military personnel records usually indicates combat involvement

What is a Presumptive Condition?

A presumptive condition is a health condition that the VA has already decided is linked to a particular environmental hazard or period of service with exposure to environmental hazards. This means that if you have qualifying military service and a presumptive condition, you don’t have to prove your condition is service-connected. Usually, to get disability compensation, you have to prove service-connection, meaning your condition began during, was caused by, or was made worse by your military service. But if you’re suffering from a presumptive condition, you only need to prove you have the required military service. Then, your condition is automatically considered service-connected.

Presumptive Service Connection Claims

Vietnam War Veterans Agent Orange Exposure Served in Vietnam between January 9, 1962 and May 7,

1975 Develop a condition identified as a presumptive A/O

disease: Diabetes mellitus Hodgkin’s disease Non-hodgkin’s lymphoma Prostate cancer Respiratory cancers Multiple myeloma Chloracne B-Cell Leukemias Parkinson’s Disease Ischemic Heart Disease

Presumptive Service Connection Claims

Persian Gulf War VeteransGulf War Syndrome

Unexplained fatigueSkin problemsHeadacheMuscle painGastrointestional symptomsAbnormal weight loss

New Regulation for PTSD Claims

Effective July 13, 2010 A veteran will be able to establish the occurrence of an in-

service stressor through his or her testimony provided that:

1. The veteran is diagnosed with PTSD and

2. VA (or VA contracted) psychiatrist or psychologist confirms that the claimed stressor is adequate to support a PTSD diagnosis and

3. the veterans symptoms are related to the claimed stressor and

4. the claimed stressor is related to “fear of hostile military or terrorist activity”, is consistent with the places, types and circumstances of the veteran’s service and the record provides no clear and convincing evidence to the contrary.

PTSD and Gulf War, Iraq, Afghanistan

Marines: Combat Action Ribbon

Army:Combat Infantryman’s Badge

When and How Does a Veteran File a Claim for Benefits?

A claim for benefits may be filed at anytime using VA Form 21-526 , Application for VA Compensation/Pension: At the local VA Regional Office (VARO) With a Veterans Service Officer At a VA Medical facility with a Veterans Service Organization On-line at www.va.gov

Once the claim is filed the VA has a duty to assist the veteran in proving the claim by obtaining medical records, military personnel file, compensation & pension examination ***YOU are your best ADVOCATE!***

VA designed to be a non-adversarial veteran friendly system Takes an average of 6-18 months to receive Initial Rating

Decision from VA

Not Satisfied with the VA Decision?

VA decision may be appealed by filing a Notice of Disagreement (NOD) within 1 year of the date that VA mailed the original decision denying the claim.

After VA receives NOD it will create a Statement of the Case (SOC) which is a detailed explanation of the evidence and laws and regulations used in deciding the claim. It takes roughly 7 months to receive SOC.

The SOC is mailed to the claimant along with VA Form 9 Substantive Appeal Form to the Board of Veterans Appeals. Appeal to the Board of Veterans Appeals (BVA) must be made within 60 days of receipt of the SOC or within the remainder of the 1 year period from the date of mailing of the NOD to the VARO, whichever period ends later.

Two Types of VA Administrative Hearings

1. Decision Review Officer (DRO) hearing Request in NOD or w/in 60 days of VA Notice of Right to Review All evidence is reviewed anew Non adversarial informal hearing Veteran can submit additional new evidence at hearing DRO denial proceeds to BVA

2. Board of Veterans Appeals hearing BVA hearing can be conducted in DC where the Board is located; by

video conference with vet at local VARO & Board in DC (quickest way is video conferencing); at local VA office with Travel Board

Non adversarial informal hearings Roughly 2.5 years from the time the NOD is filed for case to be

certified to Board and another 2.5 years for the Board to decide the case

BVA decision is the last step in the administrative process BVA can remand the claim back to VARO for further development,

grant the claim or deny the claim If BVA denies the claim the vet may:

Re-open claim at the VARO with new and material evidence File motion with BVA asking for review based on clear &

unmistakable error Appeal final Board decision to the U.S. Court of Appeals for

Veterans Claims within 120 days (strongly advised to seek legal representation)

Al Tetrault exiting C-123

Easter Sunday, 1966

www.vets101.org

Empty Agent Orange Barrels

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