Things to Consider When Filing an Initial Claim
While we only handle claims that have been denied for Veterans Disability, we believe that it is important to provide some tips for veterans to assist their initial claims.
First, if you are currently serving, report any medical issues that you are having. Time and time again, veterans encounter a dilemma with their claims because their superiors encouraged them not to report any medical issues that they were having. This understandably frustrates veterans when they are later denied benefits by Veterans Affairs (VA) for the reason that there was no recorded injury/symptom while serving (an important element to proving a disability claim is that your injury stems from your time in-service). Veterans who do not report medical issues can potentially have a more difficult time acquiring service-connection; therefore, if you believe you are experiencing any symptoms of a medical problem, speak up and report it. If you are reading
this as a veteran, fear not. Although you are now out of the service, there are still ways to go about establishing an injury or event in-service that will help you with your claim for service-connection.
Second, when you file an initial claim, be sure to make copies of anything that you submit to the VA. While the VA has improved its record-keeping in recent history, loss of records by the VA still happens. If records you have submitted are misplaced by the VA down the road, you still have the copies you made. Unfortunately, if you fail to make copies of what you submit and the VA loses your records, you will unlikely be provided with any presumptions as to what those records contained.
Third, try to keep in contact with the individuals you served with. For various reasons this is not always easy to do, but if you can, attempt to maintain an up-to- date contact list of those you served with. Sometimes, the easiest way to prove a claim is to have witnesses that can attest to and corroborate your story.
If you have applied for a disability claim and have been denied, contact us and we’ll give you a free consultation. At Rankin & Gregory, we want our veterans to receive the disabilities that they deserve. As veterans, you offered to sacrifice everything for us, now let us fight for you.
My Claim was Denied in Full or in Part, Now What?
If you have received a denial of an initial claim, you should consider hiring an attorney to assist you with the appeals process. Due to its bureaucratic nature, the VA can be extremely difficult to deal with. In the worst-case scenarios, it has taken individuals two or three years to get an appeal after filing a Notice of Disagreement (NOD). Because of this, it is important to do what you can to increase your chances of receiving a favorable decision on appeal. While I commend the ability that some VSOs have in navigating the system, the advantage of hiring an attorney is simple: you have a legally trained professional to provide you with zealous representation. At Rankin & Gregory, we consider it both a privilege and an honor to represent the veterans of our military forces. Do not hesitate to contact us if you have been denied. Even if you are not sure on whether to hire us, we will provide you with a free consultation as to the merits of your claim.
Establishing Service-Connection for a Veterans Disability Claim
There are four basic requirements that every veteran must meet in order to establish a service-connected injury.
The first requirement deals with the veteran’s discharge status. In order to be eligible for benefits, a veteran’s character of discharge generally must be under other than dishonorable conditions. If you are unable to remember or are not sure of your character of discharge, you can find it on your DD 214. Specifically, look for Honorable, Under Honorable Conditions, or General as these will make you eligible for benefits. In some cases, individuals who received dishonorable discharges (such as Undesirable or Bad Conduct) may still be eligible for benefits upon determination by Veterans Affairs (VA).
Second, the veteran must have a documented in-service event or injury. The easiest way to prove this is generally through the veteran’s service treatment records; however, a veteran may also prove this through lay testimony. For example, let us say a combat veteran finishes his time in-service and after discharge begins showing symptoms for post-traumatic stress disorder (PTSD). In order to prove his in-service event, he may testify or provide statements that he was involved in combat while serving.
Third, the veteran must have a current disability. A disability cannot be complaints of mere pain that the veteran is experiencing. Disabilities also need not be physical in nature. For example, a diagnosis of depression or PTSD would satisfy the disability requirement.
Fourth, and finally, the Veteran must be able to show a nexus between the in-service event or injury and the veteran’s current disability. Essentially, the veteran must show that what happened to him in-service is why he or she currently suffers from a disability. This is often and most easily proven through a medical opinion. When establishing a nexus, the veteran will also likely need to rule out events that have happened since service. For example, a veteran who suffers from hearing loss will want to show that any of the work he or she has done since discharge has not damaged his or her ears. A veteran with hearing loss who works in an office will have much less difficulty showing this compared to a veteran who works in a factory with loud equipment.
If these elements are proven, a veteran can receive service-connection. It should be noted that this is only a general outline to achieving service-connection. Different issues can call for different legal arguments and standards. Some injuries can be more difficult to prove than others. If you have been denied service-connection for benefits, contact us. Unfortunately, it is very common for veterans to be denied benefits that they are otherwise entitled. At Rankin & Gregory, we will take on the bureaucrats so that you don’t have to and we will not take a fee unless you receive a favorable decision.
An Overview of the Appeals Process
Although the appeals process can become complicated and drawn out, procedurally it is straight-forward. In order to apply for benefits, a veteran needs to file what is commonly referred to as an original or initial claim. Unfortunately, many of these claims are denied partially or completely. A complete denial is one in which the veteran does not receive anything. A partial denial is where a veteran has been awarded service-connection, but at a rate lower than what he or she should be afforded. A veteran can file an application for benefits at the local VA office, a VA medical facility, or online (www.ebenefits.va.gov).
After receiving an initial decision, the veteran has the option to appeal. At this point, a veteran should consider hiring an attorney to assist in the appeals process. A veteran will commonly appeal a decision because the veteran was denied benefits or was awarded service-connection, but at a percentage lower than he or she believes the percentage should have been. For example, a veteran may believe he is entitled to a 50% service-connection rating for a mental disorder, but was only awarded a rating of 30%. From here, the veteran will need to file a Notice of Disagreement (NOD). An NOD must be filed within one year after receiving a decision on your initial claim. The NOD can go one of two ways: (1) the veteran elects to have a decision review officer (DRO) review his claim or (2) the veteran appeals his claim to the Board of Veterans’ Appeals (BVA). If a veteran applies for a DRO, he may still apply to the BVA following the DRO’s decision. The advantage of requesting a DRO is that it not only adds an extra layer of review in the appeals process, but also allows for a senior technical expert at the VA to review the claim. The advantage of going straight to the BVA is that the BVA is generally more qualified in dealing with legal arguments, which could mean a shorter wait time for being awarded benefits.
If a veteran disagrees with the initial decision or the DRO’s decision, the veteran may appeal the decision to the BVA. The BVA is the final appeals process within the VA and is composed of attorneys. These attorneys will review a claim and then make a decision on the matter.
In the event that the veteran disagrees with the BVA, the veteran may then appeal to the Court of Appeals for Veterans Claims (CAVC). The CAVC has jurisdiction over appeals from the BVA and is an Article I court (an Article I court is a court that is established by Congress). The CAVC will consist of an independent judge and the VA will now have an attorney defending the decision that the BVA reached. This is referred to as an adversarial process because the veteran is no longer working his way through the VA, instead he is challenging the VA’s findings in a court of law.
Appeals do not usually proceed past this point, but in the event that a veteran disagrees with the CAVC’s decision, he may appeal to the Court of Appeals for the Federal Circuit, and then finally to the Supreme Court of the United States. If you have been denied at any level in this process, feel free to contact us for a free consultation. There is no excuse for being denied benefits that you are entitled to, let us assist you in obtaining what is rightfully yours.
Veterans’ Crisis Line
Above all else, we believe that the wellbeing of our veterans is of the utmost importance. If you or someone you know is concerned about a veteran, do not hesitate to call the Veterans Crisis Line (1-800- 273-8255, then press 1). One small act can make a difference and resources such as the Crisis Line provide confidential support for veterans and their loved ones.
Veterans and their loved ones can also chat online at VeteransCrisisLine.net, or send text messages to 838255 to receive free, confidential support 24 hours a day, 7 days a week, 365 days a year, even if they are not registered with Veterans Affairs or enrolled in health care.
Whether you are a veteran or a friend or family member concerned about one, confidential assistance is only a call, click, or text away. For more information about the Veterans Crisis Line, visit VeteransCrisisLine.net. For more information about Veterans Affairs’ mental health resources, visit www.mentalhealth.va.gov.
Types of Claims
Vietnam Veterans and Agent Orange
Famously known for its use by the United States military in Operation Ranch Hand, Agent Orange has caused an array of problems for Vietnam Veterans. Any individual who served in Vietnam during the Vietnam War (or in some cases, near the Korean DMZ) is presumed to have been exposed to Agent Orange. This means that a veteran does not have to prove whether he came in contact with the herbicide. However, the veteran still must show that a present disability exists and that said disability is due to Agent Orange exposure. The following is a list of some of the diseases that are associated with Agent Orange:
- Al Amyloidosis
- Chronic B-Cell Leukemias
- Diabetes Mellitus Type 2
- Hodgkin’s Disease
- Ischemic Heart Disease
- Multiple Myeloma
- Non-Hodgkin’s Lymphoma
- Parkinson’s Disease
- Early-Onset Peripheral Neuropathy
- Porphyria Cutanea Tarda
- Prostate Cancer
- Various Respiratory Cancers
- Various Soft Tissue Sarcomas (excluding osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, and mesothelioma)
If you are a Vietnam veteran, there is a strong possibility that you were exposed to Agent Orange. If you suffer from any of the medical conditions listed above, there is a chance that Agent Orange exposure is to blame. Contact us today for a free consultation.
Hearing Loss and Tinnitus
It is common for veterans to have been exposed to extremely loud and hazardous noises while in-service. Due to this exposure, veterans commonly develop hearing loss problems and tinnitus. Thanks to the addition of VA Fast Letter 10-35, an in-service event will not always have to be established in order to bring a hearing loss claim. Specifically, Veterans Affairs (VA) will concede exposure to hazardous noise if a veteran’s MOS is shown to have a highly probable or moderate probability of exposure. In order to determine whether a veteran’s MOS was at risk for noise exposure, the VA will examine the Duty MOS Noise Exposure Listing.
Even if such noise exposure is conceded, a veteran will still have to establish a link between current hearing loss and the in-service exposure. This nexus can be established through the use of an independent medical opinion.
Often associated with hearing loss is tinnitus. Tinnitus can be characterized as hearing a ringing, buzzing, clicking, or hissing sound in the ears. If you have tinnitus, you may also have hearing loss and vice versa.
The attorneys at Rankin & Gregory take pride in being able to represent veterans in their disability appeals claims. If you have been denied for a hearing loss or tinnitus claim, contact us for assistance. As trained legal professionals, we understand how to navigate the bureaucracy that is the VA. Moreover, we won’t charge a fee unless we recover money for you.
Total Disability Based on Individual Unemployability (TDIU)
Even if a veteran is not 100% service-connected, he or she can still receive benefits at the 100% rate through TDIU. There are two main ways that a veteran can be considered eligible for TDIU. First, a veteran can be considered eligible for TDIU if he or she has at least one service-connected disability that is rated at 60%. Second, a veteran who has two or more service-connected disabilities can be considered eligible for TDIU if he or she has a combined rating of at least 70% and one of the disabilities is rated at least 40%.
If a veteran meets the rating criteria, he or she must then show an inability to maintain “substantially gainful employment.” The concept is somewhat similar to the analysis conducted in social security disability claims. Particularly, the VA will consider whether the veteran’s service-connected disabilities prevent him or her from being able to maintain a career. In making a determination, the VA will consider several factors such as the veteran’s job history and current symptoms that the veteran must deal with on a day-to- day basis.
If you are no longer unable to work due to your service-connected disabilities, you may also be eligible for Social Security Disability (SSD) benefits. If you would like more information on SSD, check out the “Am I Eligible for SSD” link on our site. At Rankin & Gregory, we handle both service-connection and SSD claims. We never pressure people to become our clients and charge nothing to consult with our attorneys. If you have been denied benefits and are considering whether to hire an attorney, feel free to contact us. We will provide you with a quick response and a realistic outlook as to what we could do to assist you with your claim.
Post-Traumatic Stress Disorder (PTSD)
Post-traumatic stress disorder (PTSD). It is a term that most Americans are now aware of and is commonly associated with combat veterans. While it is important for the public to understand that not all veterans develop PTSD, it is even more important for veterans to understand that PTSD is not a weakness, but an injury. Moreover, PTSD can be a difficult injury to heal from and reaching out is the first step. Do not hesitate to contact the Veterans Crises Line (1-800- 273-8255, then press 1) if you or a loved one is struggling with PTSD.
If you think you may have PTSD, it is best to consult a doctor or medical professional; however, there are some basic signs and symptoms to be alert for if you believe that you or a loved one may have suffered a PTSD injury. Below are some questions to ask yourself if you think that you or a loved one may be suffering from PTSD. If you or a loved one experiences any of these symptoms, you or your loved one may qualify for service-connected benefits.
The first question to ask is whether you or your loved one was exposed to a traumatic event in-service. Traumatic events include exposure to death, threatened death, injury, threatened injury, sexual violence, or threatened sexual violence. This exposure could have been direct or indirect. A classic example of indirect exposure is a first responder who did not witness the initial traumatic event, but deals with its consequences (such as a medic).
If such exposure occurred, the next question to ask is whether you or your loved one is experiencing symptoms of PTSD. There are multiple criteria to be considered. The first criterion to examine is whether the traumatic event is being re-experienced. A veteran who has intrusive thoughts, nightmares, or flashbacks of the traumatic event he or she experienced will likely satisfy this requirement. A veteran who experiences emotional distress or physical reactivity
following exposure to traumatic reminders will also likely fulfill this requirement. For example, a veteran who hears a car backfire and attempts to take cover or becomes increasingly anxious because it reminds him of gunfire, has experienced a reaction to a traumatic reminder.
Another consideration to take into account is whether you or your loved one is avoiding trauma-related stimuli after experiencing the trauma. These types of symptoms may even cause a veteran to change his or her personal routine. For example, a veteran may avoid standing near windows because he or someone he served with was shot through a window. Another example would be having to leave a room during a show or movie because there is a violent scene taking place that reminds the veteran of his or her experiences while serving.
Yet another factor to consider is whether you or your loved has negative thoughts or feelings that began or worsened after the traumatic event. For example, a veteran who has overly negative thoughts and assumptions about oneself or the world may meet this criterion. A veteran who blames oneself for the traumatic event or, on the opposite end, has the inability to recall key features of the trauma may also meet this criterion. Feelings of isolation or a decrease of interest in activities may also suggest that a veteran is having negative feelings.
Finally, the last question to consider is whether you or your loved one is experiencing trauma-related arousal and reactivity that began or worsened after the initial trauma. Some things to look for are showings of irritability, aggression, risky/destructive behavior, or hypervigilance. Becoming more easily startled and experiencing difficulty with concentrating or sleeping are also signs that an individual is experiencing trauma-related arousal and reactivity.
If you or a loved one has experienced any of these symptoms, PTSD may be the reason. Again, it is best to seek a medical professional for a diagnosis. You should also consider applying for disability benefits if you think that you may have PTSD. While the VA has gotten better with diagnosing and awarding service-connection for PTSD, it still struggles to provide veterans with an appropriate rating for service-connection (generally, the VA will provide a lesser rating than what a veteran is really entitled). If you have been denied for PTSD, or if you have been awarded service-connection, but at a lower rate than you think you deserve, call our office for a free case evaluation.