Pain Can Be a Disability

By: Susan Paczak

The United States Court of Appeals for the Federal Circuit has made an important decision about how a veteran can prove they are entitled to compensation for a service-connected disability. In Saunders v. Wilkie, the Court decided that pain itself can be a disability.

To get VA compensation the Veteran must show:

  1. they had an injury or disease in service;
  2. they have a current disability; or
  3. a connection between the injury or disease in service.

In Saunders, the veteran was diagnosed with a knee condition in service. She showed that she had knee pain after service. A VA examiner said the knee pain after service was related to the knee condition diagnosed in service, and it caused her problems with daily activities and caused her to miss work. However, the VA examiner did not find a disease or injury to the knee, just the pain. The VA denied the claim.

The veteran appealed. The VA argued that since she had knee pain after service, but no diagnosed condition, she did not have a current disability for VA purposes. The Court overruled that finding ruling that pain by itself was a disability for VA purposes.

This decision does not mean that just because you have pain from an injury or disease in service, you will automatically receive benefits. You must show that you had a disease or injury diagnosed in service, that you now have pain, and that this pain affects your daily life, including your ability to work. In other words, you still need a medical provider to verify that the pain comes from the problem you had in service and how it affects you.

If you have any questions about how this decision may affect your claim, or any other claim related issues, please call and speak to one of our veteran’s benefits attorneys.

Please note the VA may decide to appeal this decision to the Supreme Court.

PRESIDENT’S BUDGET CUTS VETERANS BENEFITS

By: Susan Paczak

The budget proposed by the President increases the VA’s budget by 6%, but it also proposes to cut unemployability benefits for many veterans. Veterans rated at least 60% and unable to work because of their service‑connected disabilities can receive a rating of 100%. These are called Unemployability Benefits. Under this proposed budget, at age 62 the veteran would no longer be rated at 100% unemployable, they would go back to the rating they had before they were found unemployable. This means their benefits would be reduced by $1,000 or more per month. This cut would affect some of the most severely disabled elderly veterans, many of whom are in their 80s. This would plunge many veterans into poverty and possibly homelessness. For many disabilities, it is hard or even impossible to get 100% rating, but that disability rating is what makes the veteran unemployable. Additionally, for veterans with ratings for more than one disability, the formula the VA uses to combine these ratings makes it hard to get 100%, even if the separate ratings would add up to 100%. That is why unemployability benefits are so important.

Secretary of Veterans Affairs Shulkin, has defended these changes saying these veterans are still entitled to Social Security Retirement Benefits at age 62. However, at age 62, the veteran’s Social Security Retirement is a reduced retirement amount. Additionally, many veterans are not eligible for Social Security Retirement or will only receive a small amount because their service‑connected disabilities prevented them from working or forced them into part‑time or low-paying jobs.

Secretary Shulkin also said these cuts were needed to fund an increase in the VA Choice Progam. This means that the VA would take money from some veterans to pay for medical care for other veterans. This proposal does not live up to the VA’s motto, “To care for him who has borne the battle, his widow and orphan.” This motto was taken from President Lincoln’s second inaugural speech. President Lincoln would certainly not be in favor of these cuts to severely disabled veterans.

This budget is still just a proposed budget. This means that if enough pressure is put on the President and Congress, this proposal can be removed from the budget. All of the major veterans service organizations, such as DAV. American Legion, AMVETS, the Vietnam Veterans of America, the Paralyzed Veterans Association, and the VFW have come out in opposition to this proposal.

Please contact the White House, your Senators, and Representatives to tell them you oppose this proposal

Even if you do not receive unemployability benefits, please stand with your brother and sister veterans to oppose this cut in benefits.

Below are instructions for contacting the White House and your Senators and Representatives.

The White House :

To call: 202-456-6213

For email go to: https://www.whitehouse.gov/contact

By mail:

The White House
1600 Pennsylvania Avenue NW
Washington DC 2050

Congress:

You can find your U.S. Representative at www.house.gov. On the main page of this site, at the top right, you will see FIND YOUR REPRESENTATIVE. Enter your zipcode and it will display your Representative and their contact information.

You can find your Senator at www.senate.gov. On the main page of this site, at the top left, there is a drop down menu FIND YOUR SENATORS. Select your state and it will display your Senators and their contact information.

Filing a Notice of Disagreement with the VA

By: Susan Paczak

Before March 24, 2015, if veterans want to appeal a Rating Decision they just had to send something in writing to VA saying that they were not satisfied with the decision and wanted to contest it. On March 24, 2015, new rules, written by the VA, went into effect. Under these rules, if veterans want to appeal, they now have to send in a special form—Notice of Disagreement (NOD) (VA Form 21-0958). On this form, veterans indicate what part(s) of the decision they are appealing. In other words, if the veteran claimed service connection for five conditions and wants to appeal the decisions on all five, all five must be listed on the NOD. Veterans must also list what they are specifically appealing: service connection, rating, effective date, or other. The rules say that veterans must also state that they want appellate review. However, the form does not state that you have to ask for appellate review.

The rules that require use of the form were challenged by several VeteransService Organizations and the National Organization of Veterans Advocates (NOVA). Recently, the United States Court of Appeals for the Federal Circuit held that it was legal for the VA to require veterans to file a specific form to appeal. This means that unless one of the parties appeals to the Supreme Court, and the Court overturns the Circuit Courts ruling, veterans must follow these rules, or their appeals will be dismissed.

The VA is making the process for getting and appealing benefits more difficult. There are back logs of initial claims and appeals, and the VA is trying to make the process more complicated and difficult, in order to cut back on the number of veterans claiming benefits or appealing their claims. This is totally out of step with the VAs mission to help veterans. A more difficult process means that more veterans will need help with their appeals. An accredited attorney can help a veteran file and present an appeal to the VA to increase the veterans chance of receiving the benefits they earned.

Did You Serve with the 911th Aeromedical Evacuation or Aircraft Maintenance Squadrons or the 758th Airlift Squadron Between 1972-1982?

By: Susan Paczak

If you served with one of these units from 1972-1982, you may qualify for VA Benefits. The VA now recognizes that if you operated, maintained, or served aboard a C-123 aircraft known to have sprayed Agent Orange- you were exposed to Agent Orange. This means that you may be eligible for compensation if you suffer from diseases that the VA agrees were caused by Agent Orange. This includes diseases such as: type II diabetes, heart disease (heart attack, coronary artery disease), prostate cancer, lung cancer, certain types of leukemia, and other cancers and conditions.

In order to qualify you must have served regularly and repeatedly aboard a contaminated aircraft in one of the following positions:

  • –pilot/co-pilot
  • –flight nurse
  • –flight engineer
  • –aircraft loadmaster
  • –aircrew life support specialist
  • –aircraft maintenance specialist
  • –flight technician

 

Veterans who had active duty service, active duty for training, or inactive duty for training on such aircraft all qualify for benefits.

If you filed an application for benefits in the past that was denied or have never filed an application, you need to call out office to discuss this matter. When you call, please have the following information available: your DD214, any VA decisions on this issue, a list of the diseases that you believe were caused by Agent Orange, and a list of the doctors who have treated you these conditions. An attorney will then discuss this matter with you and give you a free analysis of your case.

Veterans’ Survivors Benefits and the Disabled Child

How can a disabled child of a deceased military veteran receive the veteran’s Survival Benefits and still be eligible for Supplemental Security Income and other public benefits based upon financial need?

Until now, a disabled child of a deceased veteran could receive the veteran’s Survivor Benefits, but they would be counted as income when determining their eligibility for Medicaid, Supplemental Security Income, and other benefits. It may add up to too much thus disqualifying the child for them. This all changed on December 12, 2014 when Congress passed the National Defense Authorization Act of 2015 (NDAA). This Act provided among other things that disabled children of a deceased veteran can now have the Veterans Survivor Benefits going to a Special Needs Trust rather than directly to them. Thus, the disabled child would remain eligible for needs-based government benefits which are essential to the disabled child’s care. These assets can now be held in a trust for the disabled child without being considered as the child’s assets in determining their eligibility for Medicaid or SSI. They can now use these funds to pay for everyday living expenses and other care above that which the government provides and still not be disqualified for those government benefits. 

Thus, the veteran doing his service can have a little extra piece of mind knowing that the Survivor Benefits will not impede the disabled child’s ability to obtain government benefits so necessary to their well-being.

If you have questions about Veterans’ Benefits, contact us today.

Did you drink the water at Lejeune?

In 2012 Congress passed a law recognizing that the water at Camp Lejeune was contaminated from August 1, 1953 to December 31, 1987. This law allowed the VA to pay for medical treatment for certain health problems caused by the water. The law did not allow the VA to pay any service-connected compensation for these problems. The VA is now deciding whether it will recognize certain medical conditions as presumptively related to the contaminated water at the camp. This means that the VA will pay compensation for certain diseases if the veteran was at Camp Lejeune between 1953-1987. The veteran does not have to show an actual connection between the disease and the water. The diseases the VA is thinking of paying compensation for are: kidney cancer; angiosarcoma (a type of cancer) of the liver; and acute myelogenous leukemia.   

It will take the VA time to decide if it will pay compensation for these diseases. However, a veteran with one of these diseases should not delay filing a claim. The date compensation begins will be decided by when the claim was filed. Even if the claim is filed and denied, the veteran can appeal. If the VA decides to pay compensation, the veteran will already have a claim in the system ensuring the earliest effective date can be assigned.

If the veteran has medical evidence that the disease was caused by the chemicals in the water, a claim can also be filed for any other disease that was caused by the water at the camp.

If this sounds confusing, it’s because it is. A qualified attorney can help you sift through the regulations. If you think a medical problem may be connected to your time in service, contact Abes Baumann and speak to an attorney today.

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