Attig Law Firm P.L.L.C

This is the final post in a series: “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. You can read the first entry by clicking here. You can read the second entry by clicking here. You can read the third entry by clicking here. You can read the fourth entry by clicking here. You can read the fifth entry by clicking here.

This post - indeed, any post on this website - is not legal advice, is not meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the veteran, some power. This information is not widely or easily accessible to Veterans. It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.

This post will discuss the final way to establish service-connection: “Connection due to injury caused by treatment in the VA healthcare system”.

This is a pretty straightforward issue.  38 U.S.C. 1151 states that if a veteran is injured because of VA hospitalization, treatment, rehab or therapy that is not the fault of the veteran, the injury is treated as service-connected.  You will have  to show fault, whether that fault is through negligence, lack of proper skill, carelessness, error in judgment, etc.  To show fault, you will need a medical expert opinion.  Medical experts can charge very high rates for their services.  In addition, to prove an “1151 claim”, you will need to show:

1. Additional disability or death.  The VA will compare your condition immediately prior to treatment to your condition immediately after treatment by the VA to determine the existence of an additional disability.
2. VA Hospital Care, Medical treatment, surgery, or examination.  The term Hospital Care is narrow - prior to 1997, an 1151 claimant needed only show “hospitalization” which could have included anything that occurred general experience during the course of VA treatment.  Now, the tighter showing of Hospital Care is necessary.
3. Proximate Cause.  This is a legal term that establishes the “bridge” between the VA treatment and the additional disability.  Proximate cause is a legal term, and the VA defines it as such: “the action or event that directly caused the disability or death, as distinguished from a remote contributing cause.”  Additionally, you will need to show “actual cause”.  The good news is that the burden of proof for this element is the “balance of the evidence” - which lies somewhere between substantial evidence and preponderance of the evidence.

Most veterans we have talked to that have been injured by for the above reasons want to talk to us about suing the VA for medical malpractice?  The answer is generally, yes.    This type of lawsuit is permitted under the Federal Tort Claims Act (FTCA).  The FTCA is a separate matter entirely, and will be the subject of a future post.

A section 1151 claim is a straightforward, but fact and law intensive, means to service-connect a disability.  Often times, you will need the assistance or guidance of a Veteran Service Organization or a VA Benefits lawyer to help you establish the requisite degree of proof.  If you would like to consult with legal counsel regarding your VA disability compensation or other VA benefits claim, contact a VA Benefits attorney at the Attig Law Firm to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

Click on the link below to view a Message Board Forum for VA Benefits. While I can’t and won’t endorse the accuracy of anything posted there, I will say that there appears to be quite a bit of information about VA benefits, claims, procedures, etc.:

Click here to go to the  Veterans Benefits Forum

As always, no message board and no blog - including this one - can substitute for personal legal advice. It is always advisable to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine the particular facts and law of your case.

If you would like to consult with legal counsel regarding your VA disability compensation or other VA benefits claim, contact a VA Benefits attorney at the Attig Law Firm to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

This is the fifth post in a series: “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. You can read the first entry by clicking here. You can read the second entry by clicking here. You can read the third entry by clicking here. You can read the fourth entry by clicking here.

This post - indeed, any post on this website - is not legal advice, is not meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the veteran, some power. This information is not widely or easily accessible to Veterans. It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.

This post will discuss the fourth way to establish service-connection: “Service Connection by Secondary Connection.” This type of service connection occurs when any disability or injury you have is the result of another service-connected disability or injury. It can occur when a service-connected condition causes a new disability or merely makes a pre-existing or non-service connected disability worse. Your compensation will only be to the increase in the second disability by the original service-connected disability.

You will not succeed in this type of claim without sufficient medical evidence. The standard is to produce sufficient medical evidence to show that it is as likely as not that the second condition was caused or aggravated by the first condition. To establish this to the satisfaction of the VA, you will most certainly need at least one medical expert opinion.

As anyone who has dealt with doctors knows, opinions can vary from doctor to doctor. That is why it is a good tactic to not really on the expert opinion of the VA Physician. It is highly recommended that you consult with a private medical expert to establish the required proof.

Here are some examples of secondary connection:

Scenario 1: As a result of a combat injury, you are diagnosed with post-traumatic stress disorder (PTSD), depression or any other mental health condition. Is this a secondary connection?

Answer: Probably. You will need a psychiatrist to provide a written expert opinion to the VA that connects the PTSD to the service-connected injury. Read more about PTSD claims in our VA Benefits blog by clicking here.

Scenario 2: (This general scenario appears in the Veterans’ Benefits Manual, page 132.) A veteran has a 30% rating for a service-connected knee injury. As a result of that injury, the veteran now complains of chronic back-pain and walks with a limp. Is the low-back pain and limp a secondary connection?

Answer: It depends. If you have an opinion from a private medical expert, you may be able to establish that the second injury, the low back pain, is connected to the original knee problem. This is a tougher claim, because there are many causes for low back-pain.

You need not provide clear and convincing evidence that the secondary condition is connected to the prior service-connected disability or that the prior service-connected disability is the sole cause for the second condition. The VA is supposed to give the Veteran the benefit of the doubt. This is why it is extremely helpful to have a private medical expert opinion before the VA examination.

If your claim for VA benefits will be based on service-connection by secondary connection, or if you are not sure whether your second injury can be service-connected, or if your claim for an increase in benefits due to a secondary condition is denied, a Veteran Service Organization or a VA Benefits lawyer should be able to help you determine if the legal presumptions apply to your situation.If you would like to consult with legal counsel regarding your VA disability compensation or other VA benefits claim, contact a VA Benefits attorney at the Attig Law Firm to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

This is the fourth post in a series: “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. You can read the first entry by clicking here. You can read the second entry by clicking here. You can read the third entry by clicking here.

This post - and no post on this website - is legal advice, is not meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the veteran, some power. This information is not widely or easily accessible to Veterans. It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.

This post will discuss the third way to establish service-connection: “Service Connection by Legal Presumption”.

It is difficult for any veteran to produce medical evidence showing that it is “as likely as not” that their disease or injury occurred in service. It is event harder when that veteran’s disease or injury occurred when he was a prisoner of war, or when she was exposed to radiation during service. In those case, medical evidence is almost never available; to help veterans in these - and many more - situations, Congress created a rule that said that when a particular disease manifested within a certain period after the veteran’s service, the VA should presume that the disease was service-connected. This rule essentially becomes the legal “bridge” or the “nexus” between the veteran’s current disability and the veterans’ in-service injury.

In order to be eligible for the presumption, you must fit into one of the following two categories of veterans:

1. You served 90 continuous days during a period of war; or,
2. You were a peacetime veteran - 90 continuous days after January 1, 1947 - and have been diagnosed with a particular tropical disease.

In other words, peacetime veterans are eligible for presumptive service connection for certain tropical diseases only.

Once a veteran has met this eligibility requirement, all the veteran has to show is that the disease manifested to a degree of a 10% impairment, within the presumptive period that is outlined in the statute or regulation for that disease. You can prove this by medical evidence and/or competent lay evidence. Keep in mind, too, that the disease does not need to be diagnosed within the presumptive period - the veteran need only provide evidence of characteristic symptoms of the disease within the presumptive period.

How long is the presumptive period? Here is the lawyer’s favorite answer - it depends. The period varies depending on the particular class of veteran and the particular disease. For example, if tuberculosis manifests within three (3) years of discharge, it may be presumed service-connected. If multiple sclerosis manifests within 7 years of discharge, it may be presumed service-connected. Also, there is a special set of presumptive periods for Vietnam veterans exposed to Agent Orange. Here’s a link that discusses how the VA recently established service-connection by legal presumption for “blue water” Navy vets for certain diseases linked to Agent Orange exposure.

Any legal presumption can be overcome, and this one is no exception. The VA can overcome this presumption by producing affirmative evidence that the condition was not service-connected. Typically, this will be easier for the VA to show when there is an injury that is recognized to cause certain diseases and disabilities which occurs between separation from service and the onset of the condition.

Here’s an example (we borrowed this example from the Veterans’ Benefits Manual, found at page 120.) A former POW is seeking service-connection by presumption for a particular type of back-injury; that same POW suffered a severe back injury in a car accident occurring right after separation from service. This might be affirmative evidence that is sufficient for VA to overcome the presumption of service connection.

If your claim for VA benefits will be based on service-connection by legal presumption, or if you are not sure if your disease or disability is eligible for a legal presumption, a Veteran Service Organization or a VA Benefits lawyer should be able to help you determine if the legal presumptions apply to your situation.

If you would like to consult with an attorney at Attig Law Firm that handles VA disability compensation claims, contact us to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

I just saw this article (click here to open in new window) about some Veterans who are being taken in by a very common scam.

The scam isn’t really all that devious - you can read about it in detail at the above link - it’s as simple as veterans being charged a fee for a service that they can get for free.  The problem is that these folks seem to be preying on veterans in nursing homes and other care facilities.

I can think of no reason why you should pay a fee to anyone to help you file your original claim with the VA. The law allows attorneys to receive fees later on in the process, so I’m not talking about that sort of thing.   There are too many Veteran Service Organizations that will help you prepare your claim for free.  Some of these scam artists tell vets: “You are paying to make sure your claim is done properly and professionally which decreases the chance of being denied benefits”.  There is no service out there which can accomplish this result for a fee.   Paying someone to prepare or file your new VA claim is just throwing your money away.

If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.

This is the third post in a series: “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. You can read the first entry by clicking here. You can read the second entry by clicking here.

This post - and no post on this website - is legal advice, is not meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the veteran, some power. This information is not widely or easily accessible to Veterans. It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.

This post will discuss the second way to establish service-connection: Service Connection via aggravation to pre-existing injury. This type of service-connection should be used when you had a condition that pre-dated your military service, and your time in service made that condition worse. There are a couple of major roadblocks you will have to overcome in this type of claim.

The first is that your entrance physical will have to make some reference to the pre-existing condition. The VA gets the benefit of the doubt in this case - you are presumed to have been physically and mentally sound when you entered the service, unless your entrance physical states otherwise. For example, if you had an old basketball injury to your knee, and this wasn’t noted in your entrance physical, the VA is required to presume that the knee injury didn’t pre-exist your military service. In order to overcome that requirement, you will need “clear and unmistakeable” evidence that the condition pre-existed service.

A doctor’s declaration that she treated you for the hypothetical knee injury (discussed above) prior to service would, in all likelihood, be clear and unmistakeable evidence. What if the same doctor says that the knee injury pre-existed your military service, but has no record of treatment - probably not clear and unmistakeable evidence. How about if the doctor says that it is highly probably that the knee injury pre-existed service - again, probably not clear and unmistakeable evidence. There are other ways you can make this showing - you should discuss your claim with a Veteran Service Organization or a VA Benefits lawyer to discuss other approaches or strategies to meet this burden of proof.

Once you successfully show that you had the condition prior to your service, you have another obstacle to overcome - you have to show that your condition was made worse because of your military service. This requires showing a lot more than the occurrence of symptoms of the condition during service - you actually have to show that your condition got worse. Once you make that showing, however, the VA has a high burden to defeat your claim - they have to show clear and convincing evidence that the preservice disability did not increase in severity during service.

So how do you show that your condition actually worsened then? It’s not easy, and can be quite complex. I found a great posting that discusses the types of evidence that may be needed and illustrates the complexity of the process - click here to read the article at VA Watcdog.org. [One caveat - the preceding article also discusses secondary conditions, which are covered in a later post in this thread.] If your claim for VA benefits will be based on the aggravation of a pre-existing condition, a Veteran Service Organization or a VA Benefits lawyer may be able to help you establish direct service connection if your situation doesn’t fit the two “molds” above.

If you would like to consult with an attorney at Attig Law Firm that handles VA disability compensation claims, contact us to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

Many Federal Employees are also U.S. Veterans with a service-connected disability. What happens when a Veteran with a service-connected disability gets injured on the job - does he/she have to give up the OWCP or VA benefits?

Generally speaking, you can collect both benefits at the same time, as along as the two injuries are completely separate, unless…

1. the on-the-job injury (or, god forbid, death) results from an injury that the VA has held was service-connected; or,
2. when the VA gives a veteran an increased impairment rating due to an on-the-job injury

In the case of Number 2, your election will only be between the increased portion of the VA benefit and the OWCP benefit - not the whole VA benefit.

For example, say you injured your back lifting in the Army. The VA gives you a 30% disability rating. Later, you injure your back lifting heavy mail trays at work as a civilian employee with the Postal Service. You will be required to elect between the increase in VA benefits (30% to 70%) or the OWCP disability benefits. You will not have to elect as to the compensation for the first 30% rating by the VA.

The election between OWCP and VA benefits can be tricky, and can have significant repercussions if you don’t make the election. It is best to consult with a lawyer who is familiar with OWCP claims and/or a VA Benefits attorney or a Veterans Service Organization when making this decision.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

This is the second post in a series: “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. You can read the first entry by clicking here.

This post - and no post on this website - is not legal advice, is not meant to be legal advice, and certainly does not serve as a substitute for legal advice.  Information is power, and we are providing this information to give you, the veteran, some power.  This information is not widely or easily accessible to Veterans.  It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.

This post will discuss the first way to establish service-connection: Direct Service Connection. This is the most obvious way that the veteran can establish service connection for his or her current disability. The typical approach is to show three things: 1) medical evidence of your current disability; 2) evidence - either medical or lay - that a disease or injury occurred in-service; and 3) medical evidence tying element (1) to element (2). This is usually the easiest way. Say you are injured in airborne school when you smash your knee up on a rough landing. There is likely to be someone in your class, a family member, a friend, a medic that treated you on the DZ that can provide a statement of this injury. Or, let’s say you were sent to the field medic when you threw out your back changing a tread on a tank. There is likely to be some medical record of your treatment. That evidence, plus medical evidence showing that you suffer from a disability that is linked to that event is how you would establish direct service-connection.

Now, what if you only have medical evidence of a current disability, but no evidence of an in-service incident or no medical evidence linking the injury to the disability? You can still establish service-connection by showing two elements: a) chronicity and b) continuation of symptomatology.

Chronicity generally means that you must show that the condition you are experiencing has permanently been with you, sometimes better, sometimes worse, since you were in the service or since a short period of time after leaving the service. First, some diseases are presumed to be chronic - the list is very long, and it’s best to consult with a Veteran Service Organization or VA Benefits attorney to discuss your condition. By way of example, here are a few chronic conditions: arthritis, Parkinson’s disease, cardiovascular-renal disease, sclerosis, certain types of ulcers, etc. Second, when your condition or disease is not presumed to be chronic, you can submit an expert medical opinion or excerpts from accepted medical treatises showing that when a person has the condition or disease, the condition or disease is chronic.

After showing chronicity, the veteran would also have to show “continuation of symptomatology”. This can be confusing. Generally, your going to need a medical expert opinion, but in a rare set of circumstances, a lay opinion will suffice. What should those opinions show to satisfy this element? The opinion must show that the condition recurred regularly, without an intervening cause, from the date of the injury to the date of the claim. Let’s look at the example of the soldier who smashed up his knee in Airborne school. If he provides evidence that he did in fact smash his knee up and evidence that from the time he left the service (or shortly thereafter) until the time of his claim, he had a limp or favored his knee, and he provides evidence that he now has arthritis in his knee, has he proven continuation of symptomatology? Probably not - he’ll still need to connect the arthritis in his knee to the continuing symptoms of the limp.

These are the two major ways to establish direct service connection for your VA disability compensation claim. A Veteran Service Organization or a VA Benefits lawyer may be able to help you establish direct service connection if your situation doesn’t fit the two “molds” above. If you would like to consult with an attorney at Attig Law Firm that handles VA disability compensation claims, contact us to set up a free 30 minute consult. You can, of course, also contact any one of the many Veteran Service Organizations who may also be able to assist you.

Over the next few days, a series of blog entries will cover the “Five Ways to Establish Service-Connection” for a disease, injury or other medical condition that is used as the basis of a veteran’s claim for VA benefits. Click on the underlined text below for more information on each topic. This post - and no post on this website - is legal advice, is not meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the veteran, some power. This information is not widely or easily accessible to Veterans. It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case.

The five ways are:

1) Direct Service Connection. While a direct service connection can be established in any number of ways, this means of establishing service connection usually means that there is clear evidence of a disability, an incident that occurred while the veteran was in service, and evidence of “linkage” between the two.

2) Pre-existing injury aggravated by time in service. In this type of claim, the veteran usually has some evidence that a condition existed before the veteran’s time in service (usually an entrance examination), accompanied by evidence of an incident occurring in-service and again, evidence of linkage between the two.

3) Service Connection by Legal Presumption. Certain conditions or diseases are presumed to be service connected. There are lists of these conditions and their presumptive periods. Most of these conditions must manifest to a degree of 10 percent of more within one year from the date of separation.

4) Secondary Service Connection. This type of service connection will occur when one disability is the result of another service-connected disability. One of the most famous cases is of a WW II veteran who was treated for tuberculosis with a medication known to cause hearing loss. In the Court of Appeals decision, the hearing loss was a disability with a secondary service connection.

5) Connection due to injury caused by treatment in the VA healthcare system. 38 U.S.C. 1151 states that if a veteran is injured because of VA hospitalization, treatment, rehab or therapy that is not the fault of the veteran, the injury is treated as service-connected.

These topics will be discussed more fully in the entries that follow. In the meantime, if you have any questions about whether or not your injury is service connected, you should consult with a VA Benefits Attorney or a Veteran’s Service Organization. The Attig Law Firm, PLLC, offers free 1/2 hour consultations to veterans seeking representation for their claim for disability benefits to the VA.

This is the fourth installment in our series titled: “VA Benefits: How to Prove your Claim for Veterans Disability due to Service-Connected PTSD”. You can read the first installment, which generally discusses the elements of a PTSD claim to the VA, by clicking here. The second installment, determining what medical evidence is necessary to secure disability benefits for PTSD can be read by clicking here. The third installment, discussing how to prove the existence of an “in-service stressor”, can be read by clicking here.

This installment will discuss how to prove the final element of a PTSD claim to the VA: medical evidence of a link between the current PTSD and the In-Service Stressor.

Generally speaking, if you can prove the first element - a current diagnosis of PTSD - you can prove this element. Why? Because your psychiatrist or treating physician’s report to the VA should include not only a discussion of the diagnosis of PTSD as discussed earlier, but also should include some information about the event which caused the PTSD. While this evidence will not be helpful to prove that the in-service stressor occurred, it will help establish the link between that stressor and the PTSD.

How much evidence of a link do you need? The legal standard is that the evidence must be in “equipoise”. Evidence is in equipoise if there is an equal amount of evidence on either side of a particular argument. All you need to provide is enough evidence to show that the in-service event that caused your PTSD was a “contributing factor” to the PTSD. As long as your medical report properly describes the symptomatology of your PTSD, adequately describes the stressor event, conforms to the DSM-IV, and acknowledges and reconciles reports that support a mental disorder other than PTSD, then you probably have enough evidence to show the third element of your claim.

A special note - if you have been treated (or diagnosed) for an anxiety disorder or PTSD while in the service, you should include these records in your claim for disability to the VA - the VA has a duty to assist you in finding these records or any records that can help prove your claim. Why should you include them? If you were treated for PTSD while in-service, then it is hard to imagine circumstances where the treatment wasn’t for the in-service stressor event, or an in-service event which aggravated or contributed to a prior or current diagnosis of PTSD>

If you have any questions about whether your medical evidence adequately proves a linkage between your current diagnosis of PTSD and in-service stressor, you should consult with a VA Benefits Attorney or a Veteran’s Service Organization. The Attig Law Firm, PLLC, offers free 1/2 hour consultations to veterans seeking representation for their claim for disability benefits to the VA.