Veteranclaims’s Blog

March 12, 2009

SOAR – FAQs on Veterans Law

Filed under: SOAR; FAQs on Veteran Law; Vol 13; — veteranclaims @ 9:13 pm

The professional staff of the Paralyzed Veterans of America’s (PVA) represents claimants before the Board of Veterans’ Appeals, the Veterans Court, and the Court of Appeals for the Federal Circuit and tracks legal issues that matter to veterans.

One of their publications is called “SOAR”, the Service Officers Appeals Report. It “is a quarterly newsletter providing information on cases at the Board of Veterans’ Appeals, Veterans Court, and Court of Appeals for the Federal Circuit; opinions and rulemaking of the Department of Veterans Affairs; judicial review; and other issues of concern to Paralyzed Veterans service officers.”

PVA website with link to SOAR

SOAR—Volume 13 / Number 1 3
FAQs on Veterans Law
I received an undesirable discharge from the Army. Am I eligible for benefits
from VA?

No. In order to be eligible to receive VA benefits a veteran must have been discharged or released from military service under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.12 (2007).
What is a service-connected disability?
A service-connected disability is a disability that the evidence shows was incurred in, or aggravated during military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007).
What is the difference between serviceconnected compensation and nonservice-connected pension?
Compensation is paid for serviceconnected disabilities. Pension is paid to, veterans who are disabled because of nonservice-connected causes and service-connected causes if they exist. Compensation is meant to compensate veterans for the loss of their earning capacity as a result of service-connected disability. Pension is designed to provide more income to low income, disabled veterans who served during a period of war.
How can I get my service-connected disability reevaluated by VA?
You can request that VA reevaluate your service-connected disability simply by asking. Make your request via letter to the regional office.
In order to establish service connection for my right knee condition, what sort of evidence do I need to submit to VA?
Establishing service connection for a knee disability will require (1) medical evidence that confirms the current existence of the knee disability being claimed as service connected; (2) medical or, in limited circumstances, lay evidence establishing that during military service, you incurred or aggravated a knee disease or injury; and (3) medical opinion evidence establishing a link between the claimed in-service disease or injury to your knee and the currently diagnosed disability claimed as being service-connected.
What is service-connected disability compensation?
“Compensation” is defined as a “monthly payment made by the Secretary to a veteran because of [a] service-connected disability.” 38 U.S.C.A. § 101(13) (West 2002). The basic premise of paying compensation to disabled veterans for serviceconnected disabilities is that the government assumes responsibility for disabilities contracted by military service members “in the line of duty.” In defining what constitutes the “line of duty,” Congress has generally required only a temporal relationship between duty status and the onset of a condition. See 38 U.S.C.A. § 105 (West 2002).
How does VA assess the severity of service-connected disabilities?
Congress has given VA statutory authority to assess levels of disabilities resulting from service-connected disabilities. VA has done so in its rating schedule. The rating schedule is found in part 4 of title 38, Code of Federal Regulations. The rating schedule provides degrees of impairments for disabilities ranging from 0 percent disabling to 100 percent disabling. The disability ratings set out in the rating schedule “as far as practicable” are based on the average impairment of earning capacities resulting from such diseases and injuries in civilian occupations. 38 U.S.C.A. § 1155 (2002); 38 C.F.R. § 4.1 (2007). The amount of compensation payable for each disability
rating is set by Congress in 38 U.S.C.A. § 1114 (West 2002 & Supp. 2008).
What is the presumption of soundness?
For the purposes of disability compensation, every veteran is considered to have been in sound condition when examined and enrolled for military service, except for defects, infirmities, or disorders that are noted at the time of his or her entrance examination, or where clear and unmistakable evidence demonstrates that the injury or disease existed before the veteran’s enrollment into service and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002).
What is the presumption of servicenconnection for certain diseases, disabilities,nand conditions?
For the purposes of awarding disability compensation, in the case of any veteran who served for 90 days or more during a period of war, the diseases listed in 38 U.S.C.A. § 1112
(West 2002) are considered to a have been incurred in or aggravated by such service notwithstanding the factnthat there is no record or evidence ofnthe disease during the veteran’s periodnof military service if the diseasenbecomes manifest to a degree of 10npercent or more within one year of thendate of separation from such service.
What is considered to be a “clear and unmistakable error” by VA?
The VA will find that a clear andnunmistakable error exists in an earliernVA adjudication when the claimantnproves the following:
(1) Either the correct facts containednin, or constructively contained
in the record, were notnbefore the VA adjudicator at the
time VA made the challenged decision or the statutory or regulatory
provisions that existed at the time were incorrectly applied;
(2) The error is clear and undebatable and not merely a disagreement
as to how the VA weighed or evaluated the facts;
and
(3) The error must have manifestly changed the outcome of
the prior decision. See Russell v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc); see also
38 U.S.C.A. §§ 5109A, 7111 (West 2002); 38 C.F.R. §§ 3.105(a), 20.1400-1411 (2007).
What is a notice of disagreement?
A notice of disagreement is a written communication from you to VA that expresses dissatisfaction or disagreement with a decision VA made on your claim and a desire to contest the result of the VA decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.103(f), 19.26(a), 19.26(b), 19.27, 20.200, 20.201, 20.300, 20.302 (2007).
I just received written notice that the VA regional office denied my claim for service connection for post-traumatic stress disorder. Can I appeal this decision, and if so, how?
Yes, you can appeal the decision to the Board of Veterans’ Appeals, which is located in Washington, DC. In order to begin VA’s appeal process, you must file a notice of disagreement (NOD) to the decision with the VA regional office within one year of the
date of written notice to you of the decision (see previous question). 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.103(f), 19.26(a), 19.26(b), 19.27, 20.200, 20.201, 20.300, 20.302 (2007).
After a notice of disagreement is filed, what is the next step in the process?
After VA receives a notice of disagreement, the VA regional office will prepare a document known as a statement of the case (SOC). The SOC provides a claimant with a written
summary of the case, summarizing the evidence, the governing law, and VA’s reasons for denial of a claim. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.103(f), 19.26(a), 19.26(b), 19.27, 20.200, 20.201, 20.300, 20.302 (2007).
I want to file a claim with VA for service connection for a right shoulder
disability. If I file this claim, what kind of help can I expect to receive from VA?

VA has the statutory obligation to assist in developing your claim. When you file your claim, VA has the statutory obligation to provide you with notice of “any information, and any
medical or lay evidence, not previously provided to [VA] that is necessary to substantiate [your] claim.” 38 U.S.C.A. § 5103(a) (West 2002). VA’s notice must inform you “which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the [VA]… will attempt to obtain on behalf of the claimant.” § 5103(a). Additionally, VA has the statutory duty to “make reasonable efforts to assist [you] in
obtaining evidence necessary to substantiate the claimant’s claim for a benefit[.]” 38 U.S.C.A. § 5103A(a) (West 2002). Because your claim is one for service connection, VA has
the duty to assist you in obtaining the following records if it deems them relevant to your claim:
(1) The claimant’s service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant’s active military, naval, or air service that are held or maintained by a government
entity.
(2) Records of relevant medical treatment or examination of the claimant at [VA] health-care
facilities or at the expense of the Department, if the claimant furnishes information sufficient
to locate those records.
(3) Any other relevant records held by any Federal department or agency that the claimant
adequately identifies and authorizes the [VA] to obtain.

§ 5103A(a).
VA will also have the duty to provide you with a medical examination or medical opinion to help you establish your entitlement to service connection if it decides “such an examination or opinion is necessary to make a decision on [your] claim.” Under the statute, VA “shall treat an examination or opinion as being necessary to make a decision on a claim… (1) if the evidence of record before the [VA], taking into consideration all information and lay or medical evidence (including statements of the claimant)—
• contains competent evidence that the claimant has a current
disability, or persistent or recurrent symptoms of disability; and
• indicates that the disability or symptoms may be associated with
the claimant’s active military, naval, or air service; but
• does not contain sufficient medical evidence for [VA] to make a decision
on the claim.” 38 U.S.C.A. § 5103(A)(d)(1), (d)(2)(A), (B), (C) (West 2002).
VA has elaborated on the requirements of the statute in 38 C.F.R. § 3.159 (2007).
What does VA consider to be an informal claim?
Under VA regulations, any communication or action by a claimant that indicates intent to apply for one or more VA benefits may be considered by VA to be an informal claim. An informal claim must identify the benefit or benefits being sought. When VA receives an informal claim and no formal claim has been filed, VA will forward the claimant an application form for completion. If VA receives the formal application within one year of the date it sent the form to the claimant, VA will consider the date of claim to be the date it received the informal claim from the claimant. A power of attorney must be in effect at the time a communication is written for such a communication from an attorney, veterans’ service organization, or agent to be accepted by VA as an informal claim.
Who is eligible to receive a nonservice-connected pension from VA?
Veterans with low income and who are permanently and totally disabled, or are age 65 or older, may be eligible to receive monetary support from the VA if they have 90 days or more of active military service, at least one day of which was during a period of war. The veteran’s discharge must have been under conditions other than dishonorable and the disability must be for reasons other than the veteran’s own willful misconduct. Payments are made by VA to bring the veteran’s total annual income, including other retirement or Social Security income, to a level set by Congress. Certain unreimbursed medical expenses may help to reduce a veteran’s countable income for VA purposes.
I am the spouse of a deceased veteran. Am I eligible to receive any benefits from VA?
There are a number of VA benefits that you may be eligible to receive. VA provides pensions to low-income surviving spouses and to unmarried children of deceased veterans with wartime service. To receive this death pension from VA, you must not have remarried.
Your spouse must have been discharged or released from active service under conditions other than dishonorable and must have had 90 days or more of active military service, at least one day of which was during a period of war, or a service-connected disability justifying discharge.
Another benefit is dependency and indemnity compensation (DIC). In order to be eligible for DIC as a veteran’s surviving spouse, the veteran’s death must have resulted from one of the following causes: (1) a disease or injury incurred or aggravated in the line of
duty while on active duty or active duty for training; (2) an injury incurred
or aggravated in the line of duty while on inactive duty training; or (3) a serviceconnected
disability or a condition directly related to a service-connected disability. DIC may also be paid to a surviving spouse of a veteran who was totally disabled from service-connected conditions at the time of death, even though the veteran’s service-connected disabilities did not cause the veteran’s death. The surviving spouse can qualify for DIC if the veteran was (1) continuously rated totally disabled for a period of 10 years or more immediately preceding death; (2) continuously rated totally disabled from the date of military discharge and for at least five years immediately preceding death; or (3) a former prisoner of war who died after September 30, 1999, and who was continuously rated totally disabled for a period of at least one year immediately preceding death.
Generally, what does it take to present a successful claim for service connection for post-traumatic stress disorder (PTSD) to VA?
If a veteran is to receive an award of service connection for PTSD from VA, the veteran will need to present:
(1) medical evidence establishing the existence of a diagnosis of PTSD;
(2) credible supporting evidence that the veteran’s claimed inservice stressors actually occurred; and
(3) the existence of a causal link—established by medical evidence— between the veteran’s current PTSD symptoms and the veteran’s claimed in-service stressors.
With regard to the second criterion— credible supporting evidence for the veteran’s claimed in-service stressors— the evidence necessary to establish that the claimed stressors actually occurred varies depending on whether it can be determined that the veteran “engaged in combat with the enemy.” 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2007).
If VA determines through the receipt of military citations or other supportive evidence that the veteran engaged in combat with the enemy, and the veteran’s claimed stressors are related to that combat, the veteran’s lay testimony regarding the reported stressors must be accepted by VA as conclusive evidence as to their actual occurrence and no further development or corroborating evidence will be necessary. Service department evidence showing that the veteran engaged in combat or that the veteran was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2007).
While I was in the military service, I was sexually assaulted, but I did not report the assault to the military authorities. Last month, I was diagnosed with post-traumatic stress disorder and the psychiatrist says it was caused by my in-service sexual assault. Is there any way I can establish service connection for PTSD when my in-service sexual assault is not recorded in my service records?
Yes. VA has adopted a regulation that may help you identify, obtain, and submit evidence to prove that your PTSD is service-connected. VA regulation 38 C.F.R. § 3.304(f) (2007) provides that if a PTSD claim is based on an in-service personal assault, evidence from sources other than your service records may help to corroborate your account of the in-service incident. Examples of such evidence include records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians, and statements from family members, roommates, fellow service
members, or clergy.
The BVA denied my claim for service connection for a back disability in 1989. Other than filing new and material evidence to reopen the claim, are there other procedures I can follow to get VA to take another look at my claim?
There are several possible ways you may be able to use to get VA to look at
your claim again.
First, you can file a motion with the chairman of the BVA asking him or her to direct the Board to reconsider its 1989 decision. Reconsideration of a BVA decision may be accorded by the BVA at anytime on motion by an appellant or on the Board’s own motion:
• upon allegation of obvious error of fact or law;
• upon discovery of new and material evidence in the form of relevant records or reports of the service department concerned; or
• upon allegation that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence submitted by or on behalf of the appellant. 38 C.F.R. § 20.1000 (2007).
You should be aware, however, that if the BVA does not grant your motion for reconsideration, you will not be able to appeal the denial to the Court of Appeals for Veterans Claims. You should also know that the BVA infrequently grants motions for reconsideration.
Second, you can consider filing a motion with the BVA asserting that the Board’s decision of 1989 is the product of “clear and unmistakable error” (CUE). The Board has regulations that govern its consideration of a claim that a Board decision contains CUE. These regulations are 38 C.F.R. §§ 20.1401-1411 (2007). It is not easy to persuade the BVA that it committed CUE in one of its decisions; however, if the Board rules against you, an appeal to the Veterans Court would be available to you.
Third, depending on the nature of your disability claim, you may be able to ask VA to reconsider your claim because the law has changed since the BVA denied your claim in 1989. Under 38 U.S.C.A. § 5110(g) (West 2002) and 38 C.F.R. § 3.114 (2007), VA can take another look at a disallowed claim when there has been a change in law or interpretation in law giving rise to a new substantive basis for the award of the claim. Here is in example: Assume that in 1989, the law clearly precluded the award of service connection to veterans having disability “A.” Because of this law, VA denied a veteran service connection for that disability. Later, Congress enacts a new statute that expressly provides that VA may now award service connection to veterans having disability A. If the veteran in this example files a new claim under the new statute, VA would have the authority to award the veteran service
connection for disability A.
When will VA reopen a disallowed claim?
VA must reopen a finally disallowed claim when “new and material evidence is presented or secured.” 38 U.S.C.A. §§ 5108, 7104(b), 7105(c) (West 2002); 38 C.F.R. § 3.156(a) (2007). “New evidence” is evidence “not previously submitted to [VA] decisionmakers…[that] is neither cumulative nor redundant.” § 3.156(a). New evidence is considered “material” if it “bears directly and substantially upon the specific matter under consideration” and “by itself or in connection with evidence previously assembled is so significant that it must be considered in order to decide the merits of the claim.” § 3.156(a).
VA denied my claim for service connection for hearing loss in 2001. If I file a new claim, will VA have the duty to assist me in developing my claim by obtaining an expert medical opinion?
No. Under 38 U.S.C.A. § 5103A (West 2002), Congress directs VA to make reasonable efforts to assist a claimant in obtaining evidence that is necessary to substantiate a claim for a VA benefit. This duty to assist includes obtaining records and providing medical examinations or opinions. However, under § 5103(f), “nothing…shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured.” VA adopted 38 C.F.R. § 3.159(c)(4) (2007) to implement § 5103(f). It provides that where a prior denial of a claim exists, VA will not assist the claimant by obtaining a medical examination or medical opinion. Therefore,
under the regulation, VA will not provide you with an examination or medical opinion until you successfully reopen your disallowed claim with new and material evidence.

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