Hepatitis C is disease that affects thousands. It can go undetected and undiagnosed for decades. In fact, the disease was first called non-hepatitis A or B. The medical community first started diagnosis Hepatitis C in 1989.

Many veterans were infected, unbeknownst to them, in the 1950s, 60s, and 70s with Hepatitis C while they were in service. But they were never diagnosed with the illness till many years later.

The VA has recognized that many veterans were exposed to Hep C and it has developed a list of risk factors to include: Organ transplants before 1992, blood transfusions before 1992, hemodialysis, exposure to blood, intravenous drug use, high sexual activity, and tattooing. Even though the VA recognizes these exposures the VA still denies veterans service connection for Hep C because there is no nexus between service and the current disease.

Remember that to obtain service connection you have to show something happened in service, that there is a current disability and that there is a nexus (i.e. link) between the two. I describe the nexus as a bridge. The closer you are from your time of discharge to filing a claim (say you were discharged this year and filed a claim the next month) the bridge between service and the current disability is short and easy to show. On the other hand, if you were discharged in the 1970s and are now claiming a disability based on something that happened decades ago the bridge is a long one and harder to prove.

It is the long bridge scenario that I have seen veterans have to deal with in Hep C cases. Especially veterans who served in Vietnam, almost twenty years before the medical community could even diagnose this disease. Since the disease can be dormant for years and not show itself for a long time this becomes an obstacle for veterans to overcome, because the VA will say that since the symptoms did not start for years after service it must not be related. This reasoning is against the weight of the medical literature on Hep C. Do not let VA deny a valid Hep C claim for this reason.

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Always send any mail to the VA certified mail and keep the green tab that they have to send back to you.

If you do not hear from the VA within two months of sending your claim then resend the claim certified mail again, with a copy of the original claim.

In your claim, describe all symptoms that you believe related to disorder (i.e. I hurt my right knee in servie but my left knee hurts now too because I’ve overused it or I have a service connected back condition and I am now suffering from a mental condition because of the limitations that my back puts on my ability to do what I used to do).

List where you are treating and where you have treated for you condtion.

If you are sent to a VA medical exam for your condition take a spouse or someone you trust along with you.  After the exam that person should write out a statement of what he observed.

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Recently I was asked by a veteran “Why does it take so long for an appeal to go through even when a VA Doctor indicated in writing that my foot condition would have been aggrivated during my sevice time?” 

The VA benefits process is complicated.  Although doctors can help or hurt a claim with their C&P reports, they do not ultimately decide the claim.  Once a doctor makes her report it goes back to the adjudicator in charge of your claim at the VA and that person must make the decision.   Unfortunately, it is common for a doctor to write his report and the VA still take months to issue a decision.  I’ve also seen instances where a doctor wrote a favorable report and the veteran was still denied.

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When the Rating Board denies a veteran’s claim, the veteran has the option of having his appeal handled in the “traditional” fashion or by the Decision Review Officer (DRO).

Under the traditional appeal procedure, an employee from the Rating Board reviews a denial and makes a determination whether the claim should continued to be denied.

Under the DRO appeal, a senior rating officer at the Regional Office, reviews the decision.  In that review, the DRO is required to make a decision without any deference to the first decision by the Rating Board.  In other words, the DRO reviews the evidence and makes a decision without considering the Rating Board denial.

In our practice we normally request the DRO process.  It normally gives our veterans an experienced rating officer who has the ability to set aside a bad decision made by the Rating Board.

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Yes, a veteran can receive both.  However, this applies only to SSD benefits and VA compensation benefits.  It does not apply to SSI or VA pension benefits.  These benefits are income and asset tested and cannot generally be combined with other benefits.

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The VA ratings schedule is designed to approximate the loss of wage earning capacity of an injured veteran.  However, some veterans, with catastrophic injuries, are entitled to benefits above the 100% schedular rating.  These are called Special Monthly Compensation (SMC) benefits.

The ratings tables discuss the entitlement to SMC.  It is based on the need for extraordinary care and the loss of certain organs.  This is a complicated area of veterans law and, if you have questions about it, you should have an attorney review your C File to make sure you are receiving appropriate SMC benefits.

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Generally, the VA assigns an date as the date on which the granted claim was filed.  So, if a veteran has been filing the same claim for twenty years, he will normally only get an effective date back to the date the successful claim was filed.

There are some important exceptions to this rule.  The first involves CUE claims.  These claims are explained in another post.  CUE claims are difficult to prove and are very strictly interpreted by the court.

Another exception to the rule involves a claim which is granted based on newly discovered service department records.  If claim for service connection has been denied for years and is then granted when new unit records are discovered, the regulations require that the VA consider an effective date back to the time whent he first claim was filed.

Another important exception involves claims for increase.  A claim for increase normally results in an effective date back to the date of the filing of the request for an increase.  However, under the regulations, the VA can grant benefits up to a year before the filing if the increased condition existed prior to the filing.

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This question becomes important if a veteran has PTSD.  The VA is required to accept a combat veteran’s word about stressors in combat.  It is not required to accept a non-combat veteran’s word about stressors.

There are a number of ways to prove combat.  The VA will readily accept certain medical, e.g. the CIB, the Purple Heart, etc, as proof of combat.  Buddy statements can also be used as proof of combat.

The more difficult cases involve soldiers who did not have a combat MOS and who were involved in combat that was not recorded by their units.  Normally, with this type of case, we will retain a military historian to review the unit records of all of the units around the veteran’s assigned unit to see what was happening in the area.  We have found this to be extremely helpful in proving these types of cases.

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CUE stands for clear and unmistakeable evidence.  It is also called a Motion for Revision.

CUE claims are filed against VA decisions that were made years ago.  Basically, the claim is that the rating decision was wrong on its face and should be set aside.  If the claim is successful, benefits are paid by the VA all the way back to when the denied claim was filed.

The proof of a CUE claim is not easy.  It is not enough to show that the VA decision was wrong.  The veteran is required to show that the regulations and facts which were in the C File at the time of the prior decision could lead only to one conclusion and the VA got the wrong conclusion.  The court is very strict about CUE claims and, while these claims do get granted, they are not granted very often.

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TDIU stands for Total Disability based on Individual Unemployability.  It is also called IU and Unemployability.

TDIU is based on a regulation that allows veterans who have less than a 100% schedular rating to receive 100% disability pay where the veteran’s service connected disability causes a total inability to work.

In order to qualify for this rating, the veteran must have one service connected of 70% or a combination of ratings totalling 60% with one of the included ratings being at least 40%.  Once these rating qualifications are met, the veteran is entitled to the benefit if he or she can show that the service connected disability has caused a total inability to work.

If the veteran has service connection disability that doesn’t meet the schedular rating noted above but the disability prevents the veteran from working then the veteran can still file a claim for IU.  The VA rates some diseases as total at less than 100%.  For example, the max rating for migraines is 50%.  If a veteran had migraines that were so debilitating that they prevented the veteran from working then a request for IU would be appropriate.

This regulation is one that we use all of the time for our seriously injured veterans.  It allows a disabled veteran to obtain full benefits even though the scheduled rating would not allow it.

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