The Statements of a combat vet about circumstances in combat

In my last post I touched briefly on the idea of a combat vet's statement being important in preparing for and prosecuting a successful claim for compensation. This is true relative to claims for PTSD, but not exclusive to claims for PTSD. A combat veteran's statement regarding something that occured in combat--as long as the statement is consistent with where, when, and other circumstances of service--will be accepted as sufficient for the purpose of establishing the in-service incurrance of the condition(s). Here is a cite to Section 1154(b) of Title 38 United States Code ( Title 38 USC comprise laws administered by VA): § 1154. Consideration to be accorded time, place, and circumstances of service (b) In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. Credits (Sept. 2, 1958, P. L. 85-857, § 1, 72 Stat. 1124; Sept. 30, 1976, P. L. 94-433, Title IV, § 404(20), 90 Stat. 1379; Oct. 24, 1984, P. L. 98-542, § 4, 98 Stat. 2727; June 13, 1991, P. L. 102-54, § 14(b)(1), 105 Stat. 283; Aug. 6, 1991, P. L. 102-83, §§ 4(b)(1), 5(a), 105 Stat. 404, 406.) In Collette, the Federal Circuit stated that the inquiry of whether the veteran submitted "satisfactory" evidence "requires a determination as to the credibility of the veteran's evidence standing alone, not a weighing of the veteran's evidence with contrary evidence." The U.S Court of Appeals for Veterans Claims and the Federal Circuit interpret satisfactory to mean credible, plausible, or capable of being believed. In the Caluza case, the U.S Court of Appeals for Veterans Claims explained some principles that apply to the requirement that the veteran's lay evidence be consistent with the circumstances of service: • A medical record, whether generated during or after service, should generally not be reviewed by the VA to determine whether the veteran's statements are consistent with the circumstances of service, unless it affirmatively shows that the veteran's evidence is not consistent with the circumstances of his service. • In determining whether the veteran's statements are consistent with the circumstances of his service, reasonable doubt will be resolved in the favor of the veteran where the evidence is in equipoise. When a combat veteran's evidence meets the two requirements described above, the VA must accept the combat veteran's evidence as showing in-service occurrence, unless the record contains clear and convincing evidence against service incurrence or aggravation. This piece of the law is greatly empowering to a combat vet! Example: a combat vet is on patrol, carrying his ruck sack, ammunition, weapon, etc. and comes upon a small stream that he must cross. It appears that the ground on the far side is stable and a good place to land following his jump across. He jumps and lands, not on solid ground, but in muck into which he sinks almost to the knee--he and all his gear rotate a bit on landing, but his foot and leg remain stationary in the muck. He experiences some pain in his knee and his low back, but, after his buds help extract him from the muck, he continues on--he doesn't whine about his pain. No record is created relative to this incident--there are no stenographers following this combat unit around! Later, following separation, he continues to have some discomfort and stiffness with his back and oain in his injured knee. He applies for compensation for both conditions, but VA denies his claim because there is no mention of the injury in service, or at the separation exam. This is where the value of Section 1154(b) applies. The vet can, after denial and without entering into an appeal, prepare a statement about the circumstances of the injuries and cite 1154(b). Here is an example of how this might be communicated (keep a copy!): _______________________________________________________________________________ February 3, 2010 U.S. Department of Veterans Affairs Regional Office 477 Michigan Avenue Detroit, MI 48226 RE: your full name; VA claim number Dear Sir or Madam, I invite you to review my statement in light of 38 CFR 3.304(d). This regulation is derived from Title 38 USC section 1154(b) and lightens the burden with respect to disabilities alleged to be the result of combat service. See Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). It is my understanding that § 1154(b) states that: “…the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran.” I request that you consider whether my statement, when considered alone, is satisfactory. Toward this end I ask that you determine whether my statement is credible and consistent with the circumstances, conditions, or hardships of my active duty combat service. If my statement satisfies these requirements, a factual presumption arises that my PTSD condition was incurred or aggravated during service. See M21-1, Part VI, 7.03(b), “Disabilities Related To Combat”. Thank you for your attention to this matter. Sincerely, your full name your address ______________________________________________________________________________ Remember--this applies to any injury or disease process that has its inception during a combat circumstance. Two important questions arise: who is a combatant and what is a combat circumstance? VA, DOD, The US Court of Appeals For Veterans Claims, The Court for the Federal Circuit have not given guidance about what is combat. So, common sense prevails--hopefully. The evidence as to whether an individual is a combat vet may include: Awards/Decorations for combat activity, i.e., Combat Infantryman's Badge, a Star for valor, Purple Heart, Combat Action Medal, statement from vet corroborated by an individual who witnessed the combat circumstance--exposure to incoming enemy fire (small arms, mortar, rocket fire, IEd, etc.), or outgoing fire directed toward a known enemy. Common sense would accept that if you are fired upon, or engage the enemy with weapons fire, you are a combatant--even if you have not received that above awards/decorations. Go figure. We can always revisit this issue if there is sufficient interest expressed. Please forgive any crummy spelling and/or grammar. More to come. Sua Sponte

Claim processing--1st Iteration

Did you know that if you fle a claim for VA benefits (Let's talk about service-connected disability compensation and/or non service-connected pension)within one year of separation from active duty, your efective date for payment purposes is he day following separation? For those who file a claim more than one year from the date of sparation, the effective date will be established based on the date VA receives and date stamps your claim. HERE'S A TIP: you can file what is known as an "informal claim"--this is any communication received by VA of your intent to formalize (send a completed application form)a caim at a later date. I strongly recommend a written communication-keep a copy. This will open a one year window during which you can gather necessary documents and evidence. If you formalize a claim within the one year window, your effective date will be the date VA rceived the informal claim. This can be a very usefull methodology as a fully developed claim will process faster than a claim received without necessary docments and evidence and you will not lose any money if your claim is sucessful. Different claims will require different documents and evidence. It is extremely important to work with a veterans' advocate from the earliest possible moment--preferably before a claim is formalized. The moment you consider fiing a claim with the VA, seek an experienced and knowledgeable advocate. You will be greatly advantaged by doing this. Do not try to go head-to-head with VA on your own! Veterans' Service Organiztions have "Service Officers" that are available to you, i.e., The American Legion, VFW, DAV, Paralyzed Veterans of America, AVETS,etc. Here's a scenario to consider: A vet seeks service-conncetd disability compensation for PTSD thirty years folowing discharge from service. He needs to show that he has a diagnosis of PTSD, that the PTSD s related to military service, and how the condition is affecting his life. It is good for him to have this evidence prior to filing his claim. So, he seeks an appointmet with a VA physician or a private physician to confirm/acquire the diagnosis, get a description of what symptoms (severity, freqency, duration) are attributable to the PTSD and an opinion that the PTSD is related to military service. He files an indformal claim to protect his effective date while this evidence is sought. This vet is essentially creating/developing evidence that did not exist at the time that he filed the informal claim. If the medical record is created at a VA healthcare facility (hospital or clinic) then the medcal record is in VA's possesion from the moment the first key stroke is hit. If the evidence is dispositive in relationship to your claim, there's no way to retrieve it from the record and the adjudication team deciding the merits of your claim will have access to this info--VA is VA. However, if the medical record is in the private sector, VA only has access to th medial info if you choose to give it to them. Here are some of the documnts and evidece you'll need when you meet with your advocate representatve in support of a claim for S/C of PTSD : Certified copy of DD Form(s) 214; VA Form 21-526 ( http://www.vba.va.gov/pubs/forms/VBA-21-526-ARE.pdf )claim for comp & pension); VA Form 21-22 ( http://www.vba.va.gov/pubs/forms/VBA-21-22-ARE.pdf ) assigning a service organization as your representative; medical records/opinion in support of claim; VA Form 21-686c ( http://www.vba.va.gov/pubs/forms/VBA-21-686c-ARE.pdf ) wth dependency documents, i.e., marriage cert, divorce decree(s), birth certs for dpendents; VA Form 21-4138 ( http://www.vba.va.gov/pubs/forms/VBA-21-4138-ARE.pdf ) as statement from yourself about your trauma(s) in service and symptoms you experience--if you are a combat vet, i.e. you can show combat decorations like the Combat Infantrymans Badge, any star for combat operations, etc., then VA must accept your statement as credible and sufficient unless they can rebut it with clear and convincing evidence (more about this in future blog); Statement from your spouse, family members regarding the symptoms they can observe--they cannot reach any conclusions but they can testify to what they can observe (this evidence is useful in describing severity of the condition); As each claim is quite individual, there may be other evidence or documents needed.

Fundamentals--a good place to start

You know the U.S. Department of Veterans Affairs has not always been known by that name. Way back in the day (1918-1919)the Federal Board for Vocational Education, the Bureau of War Risk Insurance came into existence along with The Bureau of War Risk Insurance. In 1921 Congress created the Veterans' Bureau that was a consolidation of the previous three agency activities. In 1929 Congress passed law that created the Veterans Administration by uniting three bureaus - the previously independent Veterans' Bureau, the Bureau of Pensions and the National Homes for Disabled Volunteer Soldiers. President Hoover signed the executive order establishing the VA on July 21, 1930. President Reagan signed legislation in 1988 to elevate VA to Cabinet status and, on March 15, 1989, the Veterans Administration became the Department of Veterans Affairs (DVA). As reorganized, the department included three main elements: the Veterans Health Services and Research Administration, which was renamed the Veterans Health Administration; the Veterans Benefits Administration; and the National Cemetery System. That's where we stand today. There have been ongoing/substantive changes through the years since VA became DVA. One thing you can count on: there is a constant change afoot within the laws administered by DVA. We'll talk more about that as we go along. One huge change that took place was the creation of a U.S. Court of Appeals For Veterans Claims. From the U.S. Civil War up to 1988, a span of 125 years, there was no judicial recourse for veterans who were denied benefits. The Department of Veterans Affairs (DVA), formerly the Veterans Administration, was virtually the only administrative agency that operated free of judicial oversight. VA existed "In splendid isolation" from judicial review. After nearly three decades of debate, a veterans' court was finally created under Article I of the Constitution by the Veterans' Judicial Review Act on November 18, 1988. The new veterans court was named the United States Court of Veterans Appeals. On March 1, 1999, the name was changed by the Veterans' Programs Enhancement Act of 1998 to what it is known today as the U.S. Court of Appeals for Veterans Claims (CAVC). As a veterans' advocate I felt like a pallet of amunition was dropped and we, as advocates, were powered-up for success in prosecuting vets' claims. Finally judicial review!--a Court that could, and has, held DVA's feet to the fire of facts pressed up against law! The Court has made NUMEROUS presedent decisions tha DVA is required to follow. Some case that arive at the Court are decided by one judge; some are decided by a three judge pannel, and some by the Court en blanc (all sitting judges). As we've come through time the decisions rendered by the Court have been a boon to veterans--DVA has had to follow the law and their own regulations. Prior to the Court the only folks a vet could appeal to was the agencie that denied him in the first place--something a little hinky with that don't you think? More to follow on fundementals of preparing a claim, presenting a claim, and prosecuting a claim. I'll try my best to impart valuable info/tips on how to be successfull in your claim for benefits. Today the DVA has approximately 1,000,000 cases in backlog status. ONE MILLION! Sua Sponte