Excerpt: Betrayal of Valor by Eric Gang
Veterans and Families Who Fought and Won
Veteran with kidney disease developed during the Korean conflict. Nearly 12 years of back pay awarded for accrued benefits, and service connection for the cause of death and back pay in excess of $190,000.
In this illustrative case, the veteran was scheduled to be discharged from Camp Kilmer, New Jersey. He notified his father and a friend that he was getting out, and they made arrangements to go to New Jersey to meet him. The veteran had his separation physical, which included a urine test. The medical corps physician told him that there was protein in his urine and that he needed to stay over and come back the next day for another urine test. The veteran advised his father and friend that he would be delayed in getting out due to protein in his urine. The next day his urine test was negative. The medical corps recorded a negative urine test result, and made no record of the initial positive test result.
The veteran got out of the service and went on with his life. Everything went on as normal for many decades. He married and had a family. However, in the 1990s he began having some trouble with his kidneys. It was found that he had high blood pressure, which the doctors said was a factor in the onset of his kidney disease.
The kidney disease progressed to the point that he needed dialysis. He eventually got on the list for a kidney transplant. But before he could get the operation , he had to have heart surgery to address some heart issues. Thankfully, the Veteran received a kidney transplant and did reasonably well under the circumstances.
He then recalled his discharge exam from the Army in the early 1950s. He remembered that the doctor had told him he had protein in his urine. After some research he learned that protein in the urine could be an early sign of kidney disease. But there was no record of the positive urine test. The veteran looked up his old friend who met him at Camp Kilmer almost five decades earlier. He remembered the veteran advising him that he had to be held over due to protein in the urine. The veteran got a statement from his friend and filed a claim.
Naturally, the VA denied him on the grounds that there was no proof of anything happening with his kidneys while in service. The Board also denied the veteran. He then appealed to the U.S. Court of Appeals for Veterans Claims, and our firm represented him.
We discovered that the Board had not adequately considered the statements of the veteran’s friend. We were able to successfully argue for a remand.
When the case was remanded, we discovered that the veteran’s separation exam report contained several clues. First, the negative urine test result was marked as a “re-check.” We reasoned that there would not have been a “re-check” unless there was an initial positive test result. We also noticed that he had a systolic blood pressure of 135. We suspected that this might have been borderline hypertension in service. We hired a top medical expert.
Our medical expert reviewed the case and found that it would not have been the standard practice to do a re-check of a urine test unless the first test was positive. Establishing this then allowed us to prove that the veteran was telling the truth. The medical expert also found that the veteran had the beginnings of hypertension during service. Hypertension then led to kidney disease. Based on this, the medical expert concluded that it was at least as likely as not that the veteran’s kidney disease was related to service.
The Board had the veteran go to a C&P exam. The C&P examiner partially agreed with our medical expert. The case went back to the Board where service connection was granted. The case then returned to the regional office to be implemented. However, six weeks after the favorable award—and after our client had been appealing for more than a decade—he died of complications of the kidney disease. His death came as a shock to his surviving wife. He had not even received the money from the VA for his back pay.
We immediately filed to substitute his wife on all his pending claims, including accrued benefits. We also filed to obtain service connection for the cause of death.
We submitted additional arguments to the regional office, and obtained and submitted an additional medical expert report regarding the cause of the veteran’s death. The result: almost 12 years back pay awarded for accrued benefits, and service connection for the cause of death.
Because of the high probability that service medical records may not document what problems a veteran may have had during service, they are often left trying to prove Criterion 2 with the use of what we call lay evidence. Lay evidence is essentially a veteran’s statements about what he experienced during service. In some situations, lay evidence will not suffice to establish an in-service event. However, in non-PTSD cases, VA is required to consider lay evidence and cannot reject it solely because a veteran's testimony is not corroborated by contemporaneous medical records. However, VA is permitted to weigh the lack of medical records against the lay evidence.
In practice, the VA is reluctant to establish Criterion 2 based on merely what a veteran says, and the absence of corroborating in-service medical records almost always weighs more heavily. Usually, the only time that the VA will concede the presence of Criterion 2 based on lay evidence alone is if the determinative issue is not an in-service occurrence. In other words, if there is no evidence of a current disability and the VA is planning on denying the claim based on the absence of a current disability, it may concede Criterion 2 based on lay evidence—but only in cases where this would not affect the outcome. The VA will generally not grant a claim based on lay evidence alone.
Veteran is recognized as a combat veteran, wins service connection for PTSD, 100 percent disability rating.
This particular veteran served in Vietnam, and his personnel records documented his participation in the Tet Counteroffensive. The veteran claimed he had been exposed to combat, but since he did not have any of the usual combat decorations, such as a Combat Infantryman Badge, the VA determined that he was not a combat veteran. Further, the only proof of his exposure to a PTSD stressor was his own testimony as to what he experienced during his time in Vietnam. As such, the VA denied his claim for PTSD.
The veteran retained our law firm to appeal his Board of Veterans Appeals denial to the U.S. Court of Appeals for Veterans Claims. We were able to successfully overturn the Board’s denial and get the claim remanded to the Board to be re-adjudicated. We argued that the veteran’s military occupational specialty (“MOS”) was that of “cannoneer.” This was documented in his personnel file, along with the notation that he participated in the Tet Counteroffensive. We reasoned that if the veteran was performing his job, he was operating and firing artillery at the enemy.
We then applied the Court’s jurisprudence that says that a veteran will be deemed to have engaged in combat if he brought fire upon the enemy—even if he did not receive incoming fire. Thus, functioning as a cannoneer—firing artillery—during the Tet Counteroffensive would satisfy the definition of combat. After almost ten years on appeal, we finally convinced the Board that the veteran was a combat veteran; the Board had to accept the claimant’s lay statements about the PTSD stressor. The result: the VA granted service connection for PTSD and awarded the veteran a 100 percent disability rating.
Boot-camp-originated PTSD. $200,000 in retroactive benefits.
Another veteran, who served on active duty from 1977 to 1979, suffered from a service connected low back condition. His case was on appeal due to the VA’s denial of his claim for service connection for PTSD. He had appealed his case all the way to the U.S. Court of Appeals for Veterans Claims. He was unable to win his claim on his own. He hired our firm to represent him before the CAVC.
His claim for service connection for PTSD was based on an event that happened in boot camp. He claimed that he witnessed a fellow soldier commit suicide. The VA attempted to verify the stressor, but its attempts were inadequate. As a result, we were able to make an argument on appeal at the CAVC that the VA failed in its duty to assist the veteran in obtaining evidence to corroborate his PTSD stressor.
To win a non-combat PTSD claim, the stressor (the event that caused the PTSD) must be verified by evidence other than the veteran’s own statements. As a result of our arguments, we successfully got the veteran’s claim remanded to the Board to be re-adjudicated. Once the case was back at the Board, we had the opportunity to submit new evidence and argument, and raise new theories. The strategic advantage of a CAVC remand is that it gives a veteran a way to keep his claim alive and submit additional argument or raise new theories but still preserve his retroactive effective date.
Once the case was back at the Board, we realized that the PTSD stressor might never be verified. That meant that the success of the veteran’s claim was tenuous, and I was uncomfortable with predicating our entire case on a theory that depended on verifying a stressor. So, we closely examined his medical records and realized that in addition to the PTSD diagnosis, he also carried a diagnosis of depression.
We understood that under the CAVC’s case law, a claim for one mental disability includes claims for other diagnosed mental conditions that are within the scope of the claim. As such, we determined that the claim could be re-characterized to include depression. Since we had an existing service-connected condition in place, a low back disorder, we determined that we could link the depression to the service-connected low back disorder. Chronic pain from back disabilities is well known to cause depression.
We obtained a medical expert opinion that linked our client’s depression to the pain from the service-connected disability. The Board granted the claim and we eventually obtained more than $200,000 in retroactive benefits for the client. Had we continued to pursue the claim for PTSD alone on a direct basis, the stressor would likely never have been verified, and the Board would have denied the claim. It was the use of a secondary service connection theory that granted a winning outcome.
Veteran with a psychiatric disorder caused by traumatic brain injury receives service connected compensation
Recently, we received a favorable Board of Veterans Appeals decision for a veteran who had been appealing the denial of his psychiatric claim since 1994. The veteran claimed that TBI during service had caused his psychiatric disorder. The VA denied his TBI claim in large part due to a delay in symptoms after the head injury, along with a post-service head injury that gave the VA reason to believe the veteran’s problems came from a post-service accident.
The case involved numerous medical opinions, most of which were unfavorable. Most of his VA doctors stated that post-concussion symptoms would normally resolve in a few months after head trauma.
However, one VA medical examiner stated that the veteran's cognitive problems were due to chronic pain. The veteran just so happened to be service connected for a neck problem that he sustained in an in-service motor vehicle accident. The Board failed to consider whether there was a secondary service connection claim for the mental issuesproblems as a result of the chronic, service-connected pain. As a result, we were able to get the claim overturned on appeal at the U.S. Court of Appeals for Veterans Claims.
We also obtained a notable neuropsychiatric expert and current research showing that there can indeed be a lengthy delay between head trauma and the onset of psychotic symptoms. The expert provided the much-needed testimony to establish the nexus between an in-service head trauma and a psychotic disorder. The Board granted service connection, and after more than 20 years on appeal, this veteran received his service-connected compensation.
Veteran suffering from schizophrenia connected to chronic pain receives 100 percent disability rating and $280,000 in back pay
In another case involving schizophrenia and major depression caused by chronic pain, we were able to get a veteran a 100 percent rating and back pay of over $280,000. This veteran filed a claim in the mid-1990s for increased ratings and schizophrenia. The Board denied his claims on the grounds that there was no evidence that the schizophrenia was related to service. The veteran hired us to appeal his case to the U.S. Court of Appeals for Veterans Claims.
Upon review of his file, we discovered that the Board had ignored evidence that the veteran suffered limitations due to the pain his service-connected disabilities caused him. The veteran’s psychiatric records showed that he was preoccupied with constant, physical pain, and suggested that he suffered mental problems as a result of it.
We successfully argued that the Board had failed to consider a claim for secondary service connection—that is, it failed to consider whether the veteran had a mental disability that was caused by the chronic pain from his service-connected physical disabilities.
We got his case remanded back to the Board. We then scheduled the veteran for an evaluation with a private forensic psychologist and a vocational expert. We obtained X-rays and MRIs. We had an expert radiologist review them and write a report. After an additional year of waiting, the regional office finally made a decision. They granted service connection for the veteran’s mental disability as secondary to his service-connected physical disabilities. The result: 100 percent service connection for major depression with 13 years back pay, totaling more than $280,000.