Excerpt: Betrayal of Valor by Eric Gang
The VA Benefits System
What is Available to a Disabled Veteran?
There are various types of monetary benefits available to veterans and their survivors.
- Service-Connected Disability Benefits (“Compensation”)
- Non-Service-Connected Disability Pension Benefits for War-Time Veterans (“Needs Based”).
- Service-Connected Death Benefits for Survivors of Deceased War-Time Veterans.
- Service-Connected Death Benefits for Survivors of Deceased Veterans (“DIC”).
Overview of Criteria for Benefits
Veterans are entitled to compensation for disabilities incurred in or aggravated during active military, naval, or air service (according to 38 U.S.C. § 1110 states). The relevant time period is from the date of enlistment to the date of discharge. The disabilities do not have to be related to military activities. This means there does not have to be a relationship between anything the veteran did during service and his disability. In other words, anything that arises during the time period from induction to separation (excluding conditions due to willful misconduct or use of tobacco products, or abuse of drugs and alcohol).
The disabilities that can be service connected are not limited to the classical war-related injuries, such as bullet wounds or shell fragment wounds, etc. This type of compensation is needed because there is no worker´s compensation or long-term disability insurance for individuals who served in the armed forces.
Service Connected Compensation
For a specific disability to warrant compensation, it must be shown that it was incurred in or aggravated by active service. The VA system takes into consideration two primary issues when deciding claims: (1) eligibility and (2) entitlement. If a veteran is entitled to service-connected compensation, the VA will then consider (1) the degree of disability, and (2) the effective date for the award of compensation.
Once an individual has achieved the status of “veteran,” he must provide the following elements to obtain disability compensation:
- Current disability. This means there must be an active pathology during the pendency of the claim.
- An in-service incident, injury, disease, or event.
- Evidence linking or establishing a nexus between the event in service and the current disability. (This is usually a medical, etiological opinion).
Criterion One: Current Disability
There must always be evidence of a current disability. If the veteran healed or was cured prior to filing his claim, the claim will not survive. However, the current disability needs not to be present at the time the claim is granted, only so long as it existed during the pendency of the claim.
To prove the current disability criterion, competent “medical” evidence is always required. In the majority of cases, this requires a degree of diagnostic precision by a medical professional who is qualified to render such a diagnosis. However, some conditions, such as personality disorders, congenital defects, and refractive eye error will not qualify as a current disability. In general, conditions that a veteran is born with will generally not be deemed a current disability for compensation purposes unless a separate disease process is superimposed thereon.
Criterion Two: Something Happened in Service
The second criterion to establish service connection involves whether something happened in service. It does not have to be a specific event that is linked to combat or official military duties. It means that some event happened during the time period of active duty. This could include exposure to a risk factor for the later development of a disease, the exposure to a toxic chemical, the initial manifestations of the early symptoms of a rare disease that is not diagnosed until years after service, or the occurrence of a medically significant event that can lead to chronic health problems after service.
An example of this would be a back injury in service that heals in a few weeks; the medical literature indicates that trauma is a risk factor for the later development of osteoarthritis. The VA would likely say that there is no connection between a current back disability and a one-time, acute and transitory back injury that healed without residuals prior to discharge, and many years before an actual diagnosis. Although no abnormalities would be seen at the time of discharge, a disease process is started that takes years to manifest in the form of degenerative changes.
In establishing whether something happened in service, the VA favors service medical records and personnel records over the veteran's own testimony. If a medically significant event was not recorded in a veteran’s medical records, the VA treats it as if it did not happen. This creates problems because young military personnel tend to downplay medical issues, especially psychiatric complaints, and thus seldom resort to medical personnel.
In addition, the VA relies heavily on physical discharge exams. If the discharge physical was negative for any complaints or medical concerns, the VA usually interprets that to mean that the veteran did not have any medical problems in service. The VA then implies that any post-service medical problems that manifest were due to intervening, post-service causes.
The VA’s reliance on discharge exams also ignores the basic attitude of service personnel who are about to discharge from active duty. If there is a medical problem, this could delay the discharge process. Military personnel know this. As they are anxious to leave and go home, they typically choose not to report the presence of medical symptoms that they may be experiencing at discharge. This results in separation physical exam reports that tend not to show the presence of relevant symptoms.
The In-Service Event Criterion and Special Rules for Combat Veterans
Although lay evidence will likely not be sufficient in most cases to establish Criterion 2, combat veterans have a special advantage in establishing an in-service event. Under 38 U.S.C. § 1154(b), VA is required to accept a veteran's lay statements regarding events of service if:
- The event occurred when he was engaged in combat with the enemy
- It is consistent with the time, place, and circumstances of service
- There is no clear and convincing evidence to the contrary
The idea behind the special combat veteran rule is that under the stress of combat it is unlikely that all relevant events are being properly recorded in a veteran’s personnel file or medical records. Because the use of lay evidence alone to establish Criterion 2 can be so powerful, there has been significant discussion as to what constitutes “combat.”
The U.S. Court of Appeals for Veterans Claims has noted that the meaning of the phrase “engaged in combat with the enemy‟ does not require that a veteran have received enemy fire. It is sufficient that a veteran personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality (Moran v. Peake).
Criterion Three: A Nexus With Service
Once a veteran has established that he has a current disability and that something happened in service, he must connect the current disability to the event from active duty. This is called the nexus requirement. The veteran must prove a nexus with service. In other words, there must be causation between whatever happened in service and a current disability.
There are multiple theories that a veteran can use to prove a nexus.
Direct Service Connection
This theory is the simplest and most direct. A typical example would be someone diagnosed during service with type 2 diabetes. After separation from service, he files a claim for diabetes. The VA would grant this type of claim easily.
When things are not so clear-cut, however, there are three different ways to prove direct service connection.
- Delayed Onset Service Connection. This is where an incident in service caused a veteran to develop a disease many years later. A medical nexus opinion is almost always required for this type of claim.
- Chronicity. Chronic conditions shown in service to be “chronic” can be service connected if they manifest at any later date, no matter how remote, unless there was a clear intervening cause.
- Continuity of symptomatology. Continuity of symptomatology is required only when there is no showing of chronicity in service. If a condition is acute and transitory during service, then a medical nexus opinion will be required. In other words, for chronic diseases that are not shown to be chronic in service, a nexus can be established by showing a continuous chain of symptoms since service.
Presumptive Service Connection
In addition to proving a nexus directly, a veteran can also use legal presumptions to establish a nexus. This means that as a matter of law certain chronic diseases that become manifest within one year after discharge are presumed to be service connected.
Five Established Categories of Presumptive Service Connection
- Tropical Diseases. If they manifest within one year after separation. Examples: cholera, dysentery, malaria, filariasis, yellow fever, blackwater fever, and plague.
- POW’s: They can obtain presumptive service connection for certain diseases any time they become manifest. These diseases are considered to be common among POW’s. They include cirrhosis of the liver, beriberi, peptic ulcers, malnutrition, irritable bowel syndrome, psychosis, anxiety, hypertension, and stroke.
- Persian Gulf Veterans. This involves a number of diseases that must be manifest prior to the statutorily defined date. They include frequently undiagnosed multi-symptom chronic illness such as chronic fatigue, fibromyalgia, etc. Objective signs of these conditions include fatigue, headaches, muscle pain, skin problems, and headaches.
- Radiation Exposed Veterans. Certain diseases associated with exposure to ionizing radiation are presumptively service connected. Examples: leukemia, various cancers such as those affecting the thyroid, breast, pharynx, esophagus, stomach, small intestine, bone, brain, colon, lung, and urinary tract.
- Herbicide Exposure (Agent Orange): If a veteran had service in the Republic of Vietnam during the Vietnam War he is entitled to service connection if he has any of the diseases on the “list” of diseases shown to be associated with Agent Orange. Examples: Type 2 diabetes, Hodgkin’s disease, multiple myeloma, prostate cancer, some respiratory cancers, and soft tissue sarcoma.
The presumptive diseases must be manifest within the required time period, but not necessarily diagnosed.
If a veteran has a pre-existing condition, and it is shown that the condition worsened during service, then a presumption of aggravation applies. Once the presumption applies, the burden shifts to the VA to prove that any increase in disability during service is due to the disease’s natural progression. This must be established by “clear and unmistakable” evidence.
Secondary Service Connection
A veteran is entitled to service connection for any condition that is approximately the result of, or linked to, a service-connected condition. If the service-connected condition causes or aggravates a second condition, the second condition may be service-connected, and compensation may be paid to the degree that the disability was aggravated beyond the baseline, pre-existing level of impairment.
38 U.S.C. § 1151 Claims
Disability compensation benefits can be achieved based on VA medical negligence. This types of claims are filed under 38 U.S.C. § 1151. A disability caused by VA medical care or vocational rehabilitation may be treated as if it were related to service. Section 1151, however, requires proof of negligence, and proof of an actual increase or additional disability as a result of the aforementioned VA treatment. And medical negligence cannot be established without an expert medical opinion.
If a veteran files a claim for compensation based on § 1151, he can also file a civil lawsuit under the Federal Tort Claims Act.