Types of Claims
The VLG focuses on representing disabled veterans, who are unable to work due to one or more service-connected disabilities. A veteran is entitled to a 100% disability rating if he can establish that his service-connected disability[ies] preclude him from obtaining gainful employment. In VA law, such claims frequently go by the abbreviation “TDIU”, referring to a Total Disability rating based upon Individual Unemployability. It is a common misunderstanding that a veteran can only qualify for a TDIU rating if he meets certain percentage disability requirements: namely, a single service-connected disability rating of 60%, or a combined service-connected disability rating of 70%. Unfortunately, through many of its notices to veterans, the VA is largely responsible for this misunderstanding. The truth is that a veteran can qualify for a TDIU rating any time one or more of his service-connected disability[ies] prevents him from obtaining employment, regardless of the percentage of the disability rating.
PTSD is probably the most common psychiatric disorder associated with military conflict. Yet, it can be the most difficult to prove. There are three elements to a PTSD claim. First, the claimant must have a present diagnosis of PTSD made by a psychiatrist, psychologist, licensed social worker or other mental health care practitioner.
Second, the veteran’s PTSD must have been caused by an in-service stressor(s). Very generally, a stressor is some traumatic event or incident likely to cause mental disorder. Examples of stressors are engaging in combat or a combat-related incident or witnessing fatal or near-fatal accidents. The evidence necessary to prove an in-service stressor depends upon whether the veteran engaged in combat or not. If the claimant can establish that he or she engaged in combat, then generally the veteran’s statement about the occurrence of the stressor will be accepted as sufficient proof. But, if the claimant is not a combat veteran, he or she must submit independent evidence corroborating or verifying the statement about the occurrence of the stressor. For most non-combat stressors claims, the in-service stressor requirement raises the most difficult proof problems. Military records are the best way to corroborate in-service stressors. For instance, if the claimant alleges that his unit came under missile and/or mortar attack, morning reports or daily logs may contain entries verifying these attacks. Proof of a stressor may come in the form of a “buddy statement,” a written statement from a fellow soldier who also witnessed the traumatic event.
The third requirement for a PTSD claim is the nexus requirement. Just like all claims, the PTSD claim must contain proof of a causal link between the in-service incident and the present disability. That means that a medical expert, (here, a medical health practitioner) must opine that the in-service stressor caused the claimant’s present PTSD.
In-Service Sexual & Physical Assaults
PTSD claims based upon in-service assaults, especially sexual assaults, present unique problems of corroboration. Because of the sensitive nature of sexual assaults, many victims do not report them. As such, there will rarely be documentation or other written memorial of the assault. Because of this problem, the VA has relaxed the evidentiary requirements for corroborating this type of in-service stressor:
If a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforce authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. § 3.304(f)(3) (emphasis added).
New Regulations for PTSD
The VA has recently announced that it will issue new regulations to make it easier for veterans to prove their PTSD claims. According to the VA press release dated July 12, 2010: "Under the new rule, VA would not require corroboration of a stressor related to fear of hostile military or terrorist activity if a VA doctor confirms that the stressful experience recalled by a Veteran adequately supports a diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressor. Previously, claims adjudicators were required to corroborate that a non-combat Veteran actually experienced a stressor related to hostile military activity. This final rule simplifies the development that is required for these cases." The "VA reduces the evidence needed if the trauma claimed by a Veteran is related to fear of hostile military or terrorist activity and is consistent with the places, types, and circumstances of the Veteran’s service."
Veterans seeking service connection for psychiatric disorders or increased ratings for these disorders are perhaps the most disadvantaged claimants in the VA system. These veterans must contend with the VA’s maze-like bureaucracy and with their own emotional impairments. Added to these difficulties is the problem of proving psychiatric disabilities. While most physical disabilities can be easily diagnosed and evaluated, psychiatric disabilities are often difficult to diagnose, and even more difficult to evaluate. For theses reasons, so much depends upon the credibility of the veteran, and, above all, the credibility of the evaluating psychiatrist. More often than not, psychiatric claims are won on the thoroughness and persuasiveness of medical examination reports. The VLG understands the importance of medical examination reports, and carefully seeks out psychiatrists who will provide the best reports for its clients.
The so-called personality disorder diagnosis is the darling of the VA. A personality disorder is not a recognized disability in the VA system. The military physicians know that, and thus they frequently diagnose mental problems arising during service as personality disorders. For example, when a soldier’s behavior becomes erratic or abnormal (often early signs of schizophrenia or bipolar disorder), military physicians typically give a perfunctory diagnosis of personality disorder in the separation examination. It is important that the claimant’s representative does not accept this diagnosis at face value. Rather, a private psychiatric evaluation is usually needed to determine whether the veteran’s alleged personality disorder was, in fact, the first symptoms of a true psychiatric disability during service.
Many Gulf War veterans suffer from illnesses which the medically community does not clearly understand. Physicians sometimes refer to these poorly-known illnesses as undiagnosed illness, chronic fatigue syndrome or chronic multi-symptom illness. The causes of Gulf War syndrome are not well-known, but there is speculation that toxic exposure or medical vaccinations may be a cause.
At any rate, to qualify for VA benefits, a Gulf War veteran must have an undiagnosed illness, a medically unexplained chronic multi-symptom illness or one of the diagnosed illnesses listed in the regulations. Also, the illness must manifest a disability to a degree of ten (10) percent or more. See 38 U.S.C. § 1117.
The VA provides for death benefits to qualifying family members of the deceased veteran. These benefits are known as dependency and indemnity compensation (DIC). Generally, surviving spouses and children qualify for DIC benefits. DIC claims must be proven in a similar manner as service-connected benefits: i.e., a showing that the veteran’s death was casually or temporally related to an in-service incident.
However, there is one significant exception. Under the so-called Ten-Year rule under 38 U.S.C. § 1318, a claimant may be awarded DIC benefits if, before his death, the veteran was receiving or was entitled to receive a disability rating level of 100 percent for a continuous period of ten (10) years or more. 38 U.S.C. § 1381.
Benefits for additional disability or death caused by VA medical care is government by 38 U.S.C. § 1151. Claims under § 1151 are a different species than service-connected disability claims, but they are compensated in a similar manner as service-connected disability claims. To prove a § 1151 claim, a claimant must show that the veteran’s death or his additional disability was caused by negligent VA medical care or by some unforeseeable complication of the VA medical care.
A veteran or his representative may first want to check to see if the veteran gave his informed consent prior to the VA medical care or procedure in question. Generally, VA hospitals require patients to sign a standard written consent form, explaining the risks involved in the medical procedure. However, in some cases, especially older ones, the VA cannot produce evidence of the patient’s written consent. This failure may be a basis to win benefits under § 1151.
Another area to explore is the possibility that the complications of a VA medical procedure were not reasonably foreseeable. On this point, a veteran or his dependent can prove his § 1151 claim, without a showing of medical negligence or substandard care. Let’s say, for example, that a veteran is admitted for a routine tonsillectomy and ends up with a heart attack or stroke. Even assuming the tonsillectomy was performed non-negligently (i.e., according to the required standard of care owed to patients), nonetheless, a heart attack or stroke is not a reasonable foreseeable complication of a tonsillectomy.
An accrued benefit is not considered a death benefit, but a benefit owed to the veteran for a period prior to his death. Generally, accrued benefits are payable to the surviving spouse, and, if there is none, then to the surviving children in equal shares. See 38 U.S.C. § 5121. Like in the case of death benefits, survivors become the claimants in these VA proceedings.
A survivor of a deceased veteran is entitled to accrued benefits only if the entitlement derives from an existing rating or other VA decision or from a pending claim filed by the deceased veteran.
One important requirement of an accrued benefits claim is that it must be filed within one year of the death of the veteran.
Another important limitation of accrued benefits claims are that they are decided only on the evidence existing at the time of the veteran’s death. A claimant may not submit additional evidence, such as private medical reports, to establishment entitlement to benefits. The only post-death evidence which can be considered is the death certificate.
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