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Matthew Hill

Veterans Appeals Improvement and Modernization Act

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The VA appeals process is going through its biggest change since the 1980s. In 2017, Congress passed the Veterans Appeals Improvement and Modernization Act. This act takes apart the current appeal system and replaces it with a new process aimed to improve the experience for all involved in the process.

First, let’s recap what the system currently looks like. Ready? Claimant files a claim. The VA regional office, RO, sends VCAA letter. After that, RO mails notice of its decision. Claimant files notice of disagreement. The claimant must file NOD within one year of mailing of rating decision. The claimant has the option of requesting a DRO review, but the claimant must request DRO review within 60 days of VA letter offering it. If the claim is denied, VA mails a statement of the case, SOC. Note, if the VA grants the claim, then you go back to the beginning of this process. The claimant has 60 days to file the Substantive Appeal VA Form 9 from the date of the SOC or a year from the date of the rating decision, whichever is later. Board of Appeals decides the case, appeals to the CAVC within 120 days. Of course, if a claim is granted at any point, then it goes back to the beginning of this cycle, and the appeal process starts all over again. Ugh.

Let’s take a brief look at what stays the same and what is changing. Then we can talk about how the process works.

There will still be a rating decision after every claim is filed. A claimant will still have the opportunity to have a more seasoned adjudicator review the decision in the regional office. The claimant can still appeal to the Board of Veterans’ Appeals. What’s gone? State of the case, gone. VA Form 9, gone. Reopened claims? Not anymore. The need for new and material evidence, gone. DRO decision, gone. What is replacing these? Supplemental claims, relevant evidence, higher level review, one NOD filed directly to the Board of Veterans’ Appeals. The middleman is gone.

In the current system, when a veteran is dissatisfied with a decision and wants to preserve the date of the claim, he has only one route: file an NOD. Forgot to file a necessary document? File an NOD. Missing a piece of evidence? File an NOD. The VA made a mistake of law? File an NOD.

Veterans Appeals Improvement and Modernization Act

Now, when a veteran files a new claim, the VA will issue a rating decision that must contain the following: what issues were decided, summary of evidence considered by the VA, summary of applicable laws and regulations, identification of findings favorable to the claimant, explanation of why claim was denied, explanation of how to get evidence used in making the decision, and identification of criteria that must be satisfied to grant service connection or the next higher level of compensation. After this rating decision, you have one year to take action. You are to appeal for a higher review at the RO, file new evidence or file an NOD to go to the Board of Veterans’ Appeals.

Higher Level Review

You have one year from the initial claim to seek this route. This lane allows for a quality check on the original opinion while still at the VA regional office. Now, you cannot submit additional evidence or request a hearing here. The review is de novo, which is fancy Latin meaning review without giving weight to the prior decision. If the decision is favorable, your original claim date is preserved. If it is unfavorable, you have an option to file a supplemental claim or to file an NOD to appeal to the board.

Supplemental Claim

Welcome to the new evidence lane. You have one year from the date of your decision to file additional evidence. Under the new law, this is now referred to as a supplemental claim. In this lane, you may submit additional evidence that is new and relevant. Upon receipt of your new evidence, VA will attempt to make a decision within 125 days. Your effective date, the day from which the VA will pay your benefits, will be the day you file the first claim.

Once the adjudicator makes a decision, you must ask yourself, are you satisfied with this decision? At this point, you get to choose from the three options again: one, as you’ve already done, you can submit additional evidence within a year and preserve the date of your claim; two, you can request a higher level review; or three, board review lane.

Board Review Lane

This is where you file an NOD and your case moves from the regional office to the Board of Veterans’ Appeals. Here, there will be three lanes to choose from: one, fully developed appeal, a claim that is ready for decision by the BVA and there is no further evidence to submit; two, hearing request with the chance to submit additional evidence; or three, request to submit evidence but not hold a hearing. If the decision is favorable, your original claim date is preserved. If it is unfavorable, you have an option to file a supplemental claim within a year, or you can file an appeal to the Court of Appeals for Veterans Claims. You only have 120 days to file this appeal though.

File an appeal with the CAVC and win, and your original claim date is preserved. If you do not prevail, then you have a year to file a supplemental claim. Should you win after that, you still preserve your original claim date.

 

Robin Rosenblad, Claims Advocate

EVIDENCE TO SUPPORT MILITARY SEXUAL TRAUMA (MST) CLAIMS

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RECORDS AVAILABLE FROM MILITARY ARCHIVES

We have talked about the definition of MST, some of the difficulties faced with these cases, and various ways you can help to prove your claim using credible secondary evidence.  The following contains information regarding how you might locate records pertaining to MST events previously reported on military bases that could potentially provide irrefutable evidence of an occurrence.

We recently handled a case for a veteran who had suffered from an event involving MST caused by the actions of a superior officer in the U.S. Army.  At the time of the event, the veteran, fortunately, reported the incident to the Military Police at the base.   But because it had been more than five years since the incident had occurred, the records were no longer at the military base.  (Typically, the Military Police will retain the records for a period of five years at the base location.  After that, the records are sent to the U.S. Army Crime Records Center archives in Quantico, Virginia.)

It was fairly easy to request the records from the Army’s Crime Records Center (CRC).   The Privacy Act request form is available at the CRC’s website:  http://www.cid.army.mil/crc.html.   It must be sent along with a legible copy of the requester’s government issued photo ID and can be mailed or faxed to the CRC.  Their website notes that if your request is in support of a VA claim, then you will get a more rapid response if you contact your VA representative (or attorney) and have their office fax your request to 571-305-4155 (CRC Records Division).

In this instance, we requested copies of a 1977 incident providing the veteran’s name, SSN, date of birth, contact information, an approximate date of the incident and a brief description of what occurred.  (We did not have the exact date or even month of the incident but only used an approximation.)  The completed form also had to be signed by the veteran.  The veteran was very pleased to receive the results in about three weeks, and the report clearly supported his story of what had occurred.  There was also no fee involved to obtain the report.

Other branches of the military also have websites indicating how to obtain criminal records from their archived sites:

U.S. Navy & U.S. Marines —  http://www.ncis.navy.mil/ContactUs/Pages/InvestigativeRecordsRequests.aspx

U.S. Air Force —  http://www.foia.af.mil/

This is just one avenue to possibly use to help prove your claim.  In prior articles, we have mentioned various other methods that might be beneficial as well as the elements necessary to prove an MST claim.

 

 

Amanda Dejesus

Five Common Mistakes When Filing A VA Disability Claim

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Here at Hill and Ponton, we know that the process of filing VA disability claim can be very frustrating and confusing. Any veteran who has not yet started the VA claims process has probably heard about the delays and lengthy appeals process. For any veteran who needs help making their way through this process, there are five common mistakes to avoid:

1. Not Filing Your Claim Right Away

One of the most common mistakes I have seen is not putting in a claim right away. There is no statute of limitations for eligible veterans to file a claim for VA disability compensation benefits. If a veteran has been wondering if they are eligible or waiting to see if their symptoms have improved, not filling a claim right away could potentially lose them a lot of money.
If a veteran receives an award, either through their first decision or on appeal, the benefits will be paid to them retroactively from the date the veteran’s original claim.

2. Giving Up on Your Claim

As mentioned above the appeals process is slow and complicated. Adding to the fact that some veterans have financial hardships that may be going through, it seems like it would just be easier to give up. Most of the time, a finding of service connection is also required to be able to secure other VA benefits such as health care.

3. Failing to Learn How the VA Decides to Give You Benefit

Most of the time, veterans think that all they have to do is fill out a form, send it to the VA, and wait for a check to arrive in the mail. The process that the VA uses to decide claims is much more complicated than that. The VA will only award benefits when a veteran can prove that they are eligible to receive VA benefits, have a current disability, have proof that something happened to them while in service, have medical evidence linking their disabilities to something that happened in service, and medical evidence indicating the severity of their condition. It is very well known that proving these points is extremely difficult the first time around. This is one of the reasons that the VA will deny most first-time claims.

4. Not Filing for Secondary Conditions

There are many veterans who do not realize that they may be entitled to benefits for disabilities that are secondary to their already service-connected disability. This happens when a service-connected injury or illness causes a new disabling condition or aggravates a non-service-connected disability.

A great example to help understand this is when a veteran has a service-connected illness of diabetes that can later lead to other illnesses. Even if the secondary illness does not develop until years later, benefits may still be available if there is medical evidence or a medical opinion to help establish the service-connection.

5. Failing to Obtain a Medical Opinion

As, discussed above, one of the biggest reasons why the VA will deny a claim is the lack of medical evidence linking a veteran’s disability to like their time in service. Just lay statements claiming that the issue is related to service, on their own, will not suffice. If your claim contains a written opinion from a medical expert or professional liking the disability to service, can make huge difference in the outcome of the claim.
In conclusion, there are many mistakes that can be made when filing a claim for VA benefits for the first time. There is an abundance of information and knowledge behind these claims and knowing what to do and what not to do and give any veteran a nice head start. It all starts when a veteran decides to file a claim. Remember, a veteran cannot receive benefits if they do not file a claim first.

Allison Reddick, Attorney

What You Should Know About RAMP

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If you’re a veteran with a pending appeal, and you’ve received a RAMP letter, you may be confused by what it means.  In August 2017, Congress passed a VA Appeals Reform Package called the VA Appeals Improvement and Modernization Act of 2017.  This appeals reform package will completely change the way VA appeals are handled.  The most important thing to note is that the reform act is not currently in effect; this is where RAMP comes in.

The Rapid Appeals Modernization Program (RAMP) is the pilot program for the reform act.  The earliest the passed reform package can go into effect is around February 2019, 18 months after it was passed by Congress.  Right now, the RAMP letters that veterans’ are receiving are related to the pilot program.  Basically, the VA must utilize the pilot program to show Congress that the new system is working before the actual reform act goes into effect.

If you receive a RAMP letter, it is important to know that this pilot program is optional.  You do not have to participate in the pilot program and you do not have to opt out of the program to avoid getting involved.  The RAMP program is only for claims that are currently on appeal, meaning a decision has previously been made on the claim, whether it was a denial or a grant you were not satisfied with.  This program is not for new claims, but only claims on appeal.

The only way you will be entered into the RAMP program is if you sign the RAMP letter opting into the program and choosing a “lane”.  There are three lanes in the new reform act but only two are open for RAMP.  The two open lanes are 1) Supplemental Claim Lane and 2) Higher Review Lane.  If you choose to opt-in to the RAMP program, you get to choose which lane to have your appeal reviewed under.

Supplement Claim Lane:

This lane is where a veteran requests to have their appeal reviewed based on additional evidence that is new and relevant.  If you have additional evidence that is important to your appeal which you have not yet submitted or that has not been previously reviewed by the VA, you could choose this option.

Higher-Level Review Lane:

This lane is where a veteran requests a de novo (fresh/new) review based on the evidence already submitted to the VA at the time the veteran chooses to opt-in to the program.  You cannot add new evidence once you choose this lane.  This lane could be for situations where all of the veteran’s evidence has been submitted and the veteran is just waiting for a decision on their appeal.

The third lane of the appeals reform package has to do with appeals at the BVA.  This lane will not open until at least February 2019.  This is a very brief overview giving a general description to provide a little basic information about RAMP.  The overall take away is that there is a lot of question and ambiguity about the program so please feel free to reach out to our office if you have additional questions.

Cassandra Crosby, Claims Advocate

Substance Abuse Among Veterans: Is It Secondary to Mental Health?

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In 2015, over 1.3 million veterans were receiving disability compensation for a mental related condition such as PTSD, general anxiety disorder, major depressive disorder, etc. These conditions, either directly service connected or secondary to another service connected condition represented almost 7% of the total of all disability compensation claims paid out by the VA at an average rating level of 30%.  The most veterans also receive a 100% rating for a mental health condition compared to any other condition, almost 200,000 compared to the next highest condition at just over 30,000 for musculoskeletal conditions. However, there is a secondary condition that many veterans are unaware of related to their mental health condition that may often either cause them to be denied service connection and/or cause other major problems in their lives such as homelessness, loss of jobs and relationships, and physical illnesses. This is substance abuse. Substance abuse includes illicit or illegal drugs, alcohol, and prescription painkillers or narcotics that someone becomes addicted to regardless of any pain they are treating such as opiates.

Primary and Secondary Diagnoses

Many psychiatrists and psychologists will diagnose a veteran with a mental health and a substance use or abuse disorder, including alcohol, under what is known as an Axis I. Axes are different diagnoses levels; Axis I is for clinical disorders such as mental health and substances, Axis II is personality disorders, Axis III is medical conditions, and Axis IV is social stressors (Axis V was general functional ratings which is no longer used). Under an Axis I there can be many diagnoses listed together.

If there is more than one disorder listed on the Axis I, then it is important to determine if one is secondary to another. Usually, the first disorder is primary and the second is secondary. For example, if it looks like this:  Axis I: Major depressive disorder, ETOH abuse disorder. This would imply in most clinical areas that the alcohol abuse was secondary to the depression, in other words, the depression caused or led to the alcohol abuse. However, not all psychiatric providers abide by this form of diagnosing so it is up to the veteran to get clarification in writing.

How to Determine if Substance Abuse or Alcohol is Secondary to Mental Health

One way a veteran can help their treatment provider determine if their substance or alcohol use is secondary to their mental health condition is by providing a timeline or history. Identifying when the substance or alcohol use started or became a problem and comparing it to when symptoms of a mental health problem began. Be careful not to compare the use to when there was a diagnosis because often veterans are not diagnosed with a mental health condition until after there has been a substance or alcohol problem for quite a while. In fact, substance and alcohol use are often catalysts for finding mental health problems among veterans as many veterans do not report mental health symptoms due to the stigma attached and risks of losing their careers. Drinking with their troops is much more socially acceptable, unfortunately, than seeking out mental health treatment in the military. Veterans should review symptoms with a mental health provider and check with family members to find out when they first started exhibiting symptoms and compare it to when they first started using alcohol or substances to ensure the timeline is accurate. The collateral evidence is usually more accurate than the veteran’s own memory of symptoms as if it often difficult to see symptoms in yourself as opposed to others, especially subtle behavior changes.

Why is it Important to Know Which is Primary?

Most veterans who have a substance or alcohol problems will have an undiagnosed mental health disorder that precipitated the use disorder and they should 1) get proper treatment and 2) file for disability compensation.  First, substance and alcohol use disorders cannot be treated properly and successfully if there is an underlying mental health disorder and it is not being treated as well. The substance or alcohol use disorder is often a coping mechanism for the mental health problem and when the mental health condition continues to be untreated, the veteran will continue to use alcohol or substances to treat the condition on their own. The VA has shown that there is a strong correlation between mental health and substance and alcohol use disorders:

  1. More than two of ten veterans with PTSD also have a substance use disorder;
  2. War veterans with PTSD and alcohol problems tend to binge drink in response to bad memories of combat trauma;
  3. Almost one in three veterans seeking substance abuse treatment also has PTSD;
  4. Veterans who smoke is almost double for those with PTSD compared to those without a PTSD diagnosis; and
  5. One in ten veterans returning from the wars in Iraq and Afghanistan have a problem with substances and/or alcohol.

Filing a claim for compensation can help provide options for veterans with co-occurring mental health and substance use disorders. First, a medical evaluation can be conducted to determine the extent and primary diagnosis. An independent medical exam can often be utilized if a VA C&P examiner decides that the veteran’s substance use disorder precipitates their mental health disorder. Most psychiatric treatment providers working with co-occurring disorders understand that there is usually a mental health disorder that causes the need for coping mechanisms, which is what the substance and alcohol use disorder usually stems from, a need to find a way to cope with something. Ensuring that an evaluation is done by a specialist who understands the concepts of co-occurring disorders is vital to a veteran’s claim. Second, once compensation has been awarded, the veteran is entitled to health care treatment as well as monetary compensation. Most veterans with a co-occurring disorder have difficulty finding or keeping a job so financial stress is important to address. Also, mental health disorders often lead to suicide and sic of ten veterans who attempt suicide were not getting medical or mental health treatment, so having a treatment provider or a primary care provider is essential to keeping veteran’s safe and alive.

Another addiction issue is if a veteran is being treated for pain and becomes addicted to medication used to treat the pain. If the treatment is from the VA, this is also subject to compensation and the veteran should file a claim for compensation based on service connection for injuries caused by VA healthcare.

Keeping our veterans safe is vital to our mission. This blog, among the many we have published that discuss ways for veterans to address their mental health conditions, is just one way we try to get the message out. Co-occurring disorders involving substance and alcohol use are among the most misunderstood and stigmatized disorders veterans suffer from. If you know a veteran who is suffering from these, please ask them to get help.

Robert Rivera, Claims Advocate

Soft Tissue Sarcoma due to Agent Orange Exposure

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The purpose of this blog is to create recognition of a disease called Soft Tissue Sarcoma. Soft tissue sarcoma is a type of cancer that could be related to a Veteran’s military service. That’s because soft tissue sarcoma is one of the illnesses on the list of “Presumptive Diseases”. Click here for a list of other presumptive diseases and eligibility requirements. The VA assumes that certain diseases can be related to a Veteran’s qualifying active military service. The gradual developing nature of soft tissue sarcoma may lead someone to prematurely dismiss the negligible symptoms of an otherwise serious health problem.  Additionally, we will discuss possible steps to take to ensure you get the information and care you need should your symptoms be associated with soft tissue sarcoma. In most cases, it’s not clear what causes soft tissue sarcoma but the VA presumes some soft tissue sarcomas in Veterans are related to their exposure to Agent Orange or other herbicides during military service.

Soft tissue sarcoma is a type of cancer that begins in the soft tissues of your body. Soft tissues connect, support and surround other body structures. The soft tissues include muscle, fat, blood vessels, nerves, tendons and the lining of your joints. Soft tissue sarcoma can occur anywhere in your body, but the most common types occur in the abdomen and in the arms and legs. A soft tissue sarcoma may not cause any signs and symptoms may be minor in its early stages. As the tumor grows, it may cause:

  • A noticeable lump or swelling
  • Pain, if it presses on nerves or muscles
  • A blockage in the stomach or intestines or gastrointestinal bleeding if the tumor is located in the abdomen or digestive tract

Make an appointment with your doctor if you have any persistent signs and symptoms that worry you. Tell your doctor if you served in Vietnam, the Korean demilitarized zone or any other area where Agent Orange was sprayed. If you don’t have medical benefits or the resources to see a doctor on your own, you may be eligible for a free Agent Orange registry health exam. This comprehensive health exam includes an exposure history, medical history, physical exam, and any tests if needed. A VA health professional will discuss the results with you. Keep in mind that in order to qualify for the Agent Orange Registry health exam, you must have;

  • Served in Vietnam between 1962 and 1975, regardless of the length of time.
  • Served in a unit in or near the Korean Demilitarized Zone (DMZ) anytime between April 1, 1968, and August 31, 1971.
  • Served on Royal Thai Air Force (RTAF) bases near U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang, near the air base perimeter anytime between February 28, 1961, and May 7, 1975.

Agent Orange (AO) and other herbicides used in Vietnam were tested or stored elsewhere before being sprayed in Vietnam including some military bases in the United States. If you suspect that you were exposed to AO or some other type of herbicide regardless of where that exposure occurred, contact your local VA health facility about getting an Agent Orange Registry health exam. If you don’t have a facility nearby, you can call the general helpline at 1-800-749- 8387 or the Agent Orange Registry Health Exam information line at 1-877-222-8387 and ask to speak to an Environmental Health Coordinator.

In general, cancer occurs when cells develop errors (mutations) in their DNA. The errors make cells grow and divide out of control. The accumulating abnormal cells form a tumor that can grow to invade nearby structures and spread to other parts of the body. The type of cell that develops the genetic mutation determines what type of soft tissue sarcoma you have. This distinction is made because not all soft tissues sarcomas are on the presumptive diseases list. The soft tissue sarcomas not presumed by VA to be caused by Agent Orange exposure are osteosarcoma, chondrosarcoma, Kaposi’s sarcoma or mesothelioma.

Living with advanced soft tissue sarcoma can be challenging. Treatment may cause stress in nearly every area of your life. You may feel shocked, scared, angry, frustrated, and sad. It is normal to feel any or all of these emotions. Know that if you are faced with these challenges help is available to you and your family. If learning that you, in fact, are afflicted with this or any other disease associated with your military service, and can’t manage with the stress of dealing with the VA while filing a disability compensation claim to service connect your disease, you can seek help from a Veteran Service Officer (VSO) at your local VA regional office, or organizations such as The American Legion, AMVETS, Disabled American Veterans (DAV), National Veterans Organization of America (NVOA), Veterans of Foreign Wars (VFW) and the Wounded Warrior Project to only name a few. Veteran’s Disability Law is an extremely complex area of law and may require legal representation to help clarify the issues and help ensure that the claim is properly supported by evidence so that the claim can be appealed, if necessary. Thank you for taking the time to read this blog and more importantly for your service.

Cassandra Crosby, Claims Advocate

Depleted Uranium: Meant to Protect, Not Harm

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The U.S. military used depleted uranium to create armor-piercing bullets and armor plating on Abrams tanks to protect the lives of our troops. However, in doing so, they created a health hazard that has become very misunderstood. Radioactivity is the most studied area of depleted uranium, which is actually the least hazardous problem. Toxicity through breathing and embedded fragments of armor plating and munitions is the main health hazard most veterans face and the studies to support their health conditions is seriously lacking.

What are the Routes of Exposure of Depleted Uranium?

Depleted uranium is not stated to be specifically dangerous due to its radioactivity. In fact, it is 40% less radioactive than natural uranium. Most of the radioactive particles emitted by depleted uranium are blocked by skin and BDUs (battle dress uniforms). Radiation that is exposed when “hot” such as after a weapon is fired, poses extremely low radiological threats as long as it remains outside the body and the exposure is not long-term (such as over a lengthy period of time – months or years of constant exposure). This is where there is a problem. Where depleted uranium is not considered a radiological concern except when “hot,” it is considered more of a chemically toxic concern, especially when fragments of armor plating or munitions puncture the skin.

Also, while not considered a radiological concern, there are those scientists who believe that the damage to cells caused by breathing radioactive particles can become cancerous over time. Because the cells’ triggers for becoming cancerous are different among different individuals, this is an area of study that may never be resolved one way or the other.

Prior to the Gulf War, extensive studies were conducted on depleted uranium while developing armor-piercing munitions and armor plating protection. The studies were focused on radioactivity and exposure in battlefield simulations. Since studies show exposure issues to be low, many personnel did not practice (or were not directed to practice) prevention measures during exposure situations because most studies conducted were on the radioactive components, not the chemical toxicity of exposure.

Two areas of exposure that were also not studied adequately and turned out to be the major health hazards to troops during the Gulf War were embedded fragments and respiratory exposure through friendly fire, recovery, and incidental contact scenarios. These include such incidents as being in, on, or near burning vehicles hit with friendly fire; entering or being near burning vehicles; being near fires involving depleted uranium munitions; or salvaging damaged vehicles. There are three main groups at risk for health problems due to depleted uranium exposure.

  1. Personnel who were struck by depleted uranium metal fragments, some of whom still retain fragments embedded in their bodies. These fragments could have come from either munitions or from fragments of armor plating that broke off during firefights or explosions;
  2. Personnel who worked in or around combat vehicles struck by depleted uranium such as those participating in the clean up after the fire at Camp Doha; and
  3. Personnel whose entered Iraqi equipment or personnel downwind from vehicles that burned after being struck by depleted uranium rounds.

What are the Health Hazards of Depleted Uranium?

There are two basic types of exposure risks; radiological and chemical toxicity.

Radiological: Depleted uranium is not a known carcinogen like other radioactive substances, meaning there are no known scientific links that it causes cancer in humans. However, there are theories that long-term exposure to radioactive dust can lead to accumulation in the lungs, leading to lung, lymph, and brain cancers. There are also studies that long-term exposures may lead to genetic birth defects in children of persons exposed to DU. However, these studies have not been shown to apply to veterans whose exposures were not long enough to pose this threat.

Chemical toxicity:  According to the World Health Organization, the main health risks associated with chemical exposure is kidney damage. Direct contact exposure such as with embedded particles does not seem to show any adverse health effects once the particles are removed, but those with particles not removed need to be monitored for kidney problems.  The World Health Organization said that once the source has been removed, kidney functions should return to normal, provided exposure was not long-term. However, they also acknowledge that there are significant gaps in research and studies need to continue specifically in long term kidney function. Embedded fragments are also suspected to cause damage to the blood, muscles, lungs, bones, lymph nodes, liver, and digestive tract.

Many Gulf War veterans have also associated depleted uranium with conditions such as:

  1. Chronic Fatigue Syndrome
  2. Neurological conditions
  3. Upper and lower respiratory conditions
  4. Menstrual disorders

Studies are limited in support of these conditions being related to and not being related to depleted uranium, but as in all compensation claims, the benefit of the doubt must go to the veteran and in the absence of evidence that depleted uranium does not cause these conditions, a claim for compensation could be winnable.

What Does This Mean for Veterans?

Veterans who have been exposed to depleted uranium, specifically by being exposed to burning vehicles or munitions or salvaging vehicles should file for compensation if they have any health conditions related to respiratory or kidney issues. A medical doctor can determine if the conditions are at least as likely as not related to the depleted uranium exposure.  Veterans from theaters of operations in the following are most likely to have been exposed:

  1. Gulf War
  2. Bosnia
  3. Operations Enduring Freedom and Iraqi Freedom
  4. Operation New Dawn

Because studies are vague, there is no presumption of illness caused by exposure so having a medical authority provide a nexus statement is vital to a claim for compensation. An independent medical evaluation by a doctor is excellent to acquire medical evidence and it will be worth the price in the long run if a mild kidney or lung condition eventually develops into something worse later. Getting service connection now ensures that complications later will be covered. Veterans can later file for an increase in their rating if the conditions become more serious. Because the studies are limited, the evidence only has to show that the condition is “at least as likely as not” related to the exposure, not that it was absolutely related, so the chances are on the side of the veteran to win a compensation claim if it is filed with the correct evidence and documentation.

Mary Klements, Claims Advocate

The Basics of Appealing Tiers in the VA System

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The VA denied my claim. What happens next?

Please note that this post is specific to the procedures of the original VA adjudication system, and does not relate to the new procedures under the RAMP initiative. For more information about RAMP, see our post about this.

In the VA benefits adjudication system, there are three tiers of appealing decisions. Each tier offers a higher level of review, culminating in a review by experienced law judges.

First Tier

The first tier is the Regional Office (RO), which is responsible for the development of claims, initial decisions, and De Novo reviews. The individuals who make the decisions in this tier do not necessarily have legal backgrounds, but they do undergo training on how to develop and adjudicate claims. If the claimant is unsatisfied with the initial decision, he/she can file a notice of disagreement, requesting that a more experienced individual (Decision Review Officer or DRO) take another look at the case. The DRO will either grant or deny the issues from the first decision. If the claimant is still dissatisfied with the decision, he/she may appeal their case to the second tier – the Board of Veterans Appeals (BVA).

Second Tier

At the BVA, the case will be reviewed by attorneys on the staff of Veterans Law Judges (VLJs). The attorney will draft a decision, and the decision will be reviewed by the VLJ for accuracy, and then signed. This level of review is beneficial in cases where legal standards are in question. For example, if the RO misapplied the rules for individual unemployability (TDIU). The BVA can directly grant or deny a claim. Most often, however, they issue a remand, which requires the RO to follow certain steps toward re-evaluating the case, and rendering a new decision. If this new decision by the RO results in another denial, the case will automatically return to the Board, and will undergo the same process within the Board as before.

Third Tier

If the Board denies the claim, an appeal to the third tier is possible. The Court of Appeals for Veterans Claims (CAVC) is the last resort for a claimant with a benefits dispute. Like the Board, the Court is made up of experienced attorneys and judges. There are several important factors to consider in determining whether or not to appeal a case to the Court.

  • The Court is a federal court, and is therefore adversarial in nature. Unlike the other tiers of the Veterans Benefits Administration, the VA argues against the claimant’s entitlement to the benefits in question. This means that an attorney is assigned to represent and defend the VA’s interests in the case against the claimant. This also means that it is highly advisable for the claimant to obtain legal representation with experience in VA law for this level.
  • Strict rules of practice and conduct are required. These rules include deadlines for timely filing of the documents and briefs, and require a legal basis for the arguments on both sides. This means that the claimant (or the claimant’s representative) is required to have enough familiarity with the law to present a legal basis as to why the Board erred in denying the claim.
  • The Court is limited to what they can review. The Court is only authorized to review cases that involve interpretation of the law. For example, this might include the Board misinterpreting the rules surrounding sheltered employment in TDIU cases. Cases that involve interpretation of the facts, such as whether or not the claimant’s symptoms qualify for a certain rating, are not reviewable by the Court.
  • No new evidence can be filed at the Court. The Court will only review the documents that were available to the VLJ who made the decision in question.

A mediation conference is standard procedure for Court cases. If the claimant and the VA attorney are unable to come to an agreement, the case is brought before a judge, who then reviews the case and makes a final decision. In special circumstances, the case may be brought before a panel of judges for a collective decision.

In the event that the Court denies the case, the claimant’s best option is usually to file a new claim with the RO. Even though this is essentially starting the claim over, there is always the chance that the laws might change in the claimant’s favor. In particularly complex cases, it is a good idea to obtain legal representation for the best chance of success.

Cassandra Crosby, Claims Advocate

Are You Eligible For Additional Payment for Asbestos Related Illnesses?

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Most US Veterans who worked around asbestos and have an asbestos related lung condition know to apply for VA disability compensation benefits. At Hill and Ponton, we are here to help veterans fight for their VA benefits. Today, however, we are leaving our area of specialization to make sure Veterans who have been exposed to asbestos know about another benefit they can file for, the Asbestos Trust Funds. Veterans, and their family members, who have asbestos-related conditions, are eligible for a monetary compensation from one or more of several trust funds created to pay victims of asbestos exposure by companies who manufactured and used asbestos, including the US Military. The creation of the trust funds started with the Federal-Mogul Corporation.

The Federal-Mogul Corporation was founded in 1899 and had in 2017 had net sales of almost $8 billion. The conglomerate builds powertrain and motor parts, including those for agriculture, space, and marine vehicles. In an effort to be more efficient, in their post WW II expansion, they purchased dozens of companies that manufactured the parts needed to build their machines. One of those companies was the South African mining company called Turner and Newall. T&N had been responsible for an asbestos disaster in the suburb of Armley, Leeds, UK; the location of their factory, where the highest measured rates of mesothelioma were recorded. Federal-Mogul set aside $2.1 billion to cover the disaster at Armley, but was not prepared for the reach asbestos had acquired.

After Federal-Mogul acquired Turner and Newall and had several other companies they owned have lawsuits filed against them due to asbestos, the conglomerate filed for reorganization bankruptcy in 2001 and did not reemerge until 2007. According to the bankruptcy agreement, the insurance policies held by Federal-Mogul bear liability for claims due to asbestos-related injuries against the corporations under the Federal-Mogul umbrella. Federal-Mogul, and approximately 60 other companies who went through similar processes, set up trust funds worth approximately $37 billion combined to pay those who have breathing-related or other diseases linked to asbestos.

What is Asbestos and What Did it Do?

Asbestos is a mineral that was used for insulation and fireproofing, two things that were valued immensely by the military. Asbestos was used to insulate and fireproof the floors, ceilings, walls, and hulls of planes and ships, buildings, and barracks. Every time a pipe was refitted, a ceiling or hull scraped to be repainted, or something with insulation taken apart or put back together, asbestos was released into the air around for all to breathe. The result was over 30 million asbestos-related deaths and of the 20 million veterans 30% currently live with lung disease, lung cancer, COPD, mesothelioma, asbestosis, or some other condition due to their exposure to asbestos. Compared to only 8% of the general population.

Who Was Exposed and What Does is Cause?

According to the VA, if a veteran worked in the following occupations they may have been exposed to asbestos through the following types of occupations:

  • Mining
  • Milling
  • Demolition of old buildings (including OIF/OEF veterans)
  • Plumbing/Piping/Fixtures
  • Insulation
  • Shipyard workers
  • Carpentry/Construction
  • Roofing
  • Flooring
  • Gaskets, clutch plates, brake pads (engine repair)
  • Cement work

Asbestos was found in other products as well, such as fire retardant suits for fire personnel. Everyone who walked into a building, sat in a plane, or got onto a ship, was potentially exposed to asbestos. Fortunately, not everyone breathed in the fibers or became sick, but for those who did, having a diagnosis of a lung disorder and evidence of serving in a job related to one of the above is the evidence needed to start a claim with the VA.

Exposure on ships also was related to where a sailor was located on the ship. Certain areas contained more asbestos such as engine and boiler rooms.

Asbestos exposure can lead to several different illnesses. To file a claim for either VA benefits or the Asbestos Trust, there must be a diagnosed condition.  Among the most common illnesses linked to asbestos exposure are:

  • Mesothelioma
  • Asbestosis
  • Pleural Plaques
  • Lung Cancer

These conditions are covered by the Asbestos Trust and eligible for payouts. However, some of the trusts have an “other conditions” category. The VA also can pay benefits if a link is shown between a condition and an in-service event, such as exposure to asbestos, and there are studies showing links to the following conditions as well:

  • Ovarian cancer
  • Laryngeal cancer
  • Atelectasis
  • Pleuritis
  • COPD (usually a secondary condition or aggravated)

Differences between a VA Claim and an Asbestos Trust Claim

For a VA claim, there has to be evidence that a veteran actually was exposed to asbestos. The VA requires evidence of actual contact such as being a plumber who actually worked on the pipes of the ship and not just being on the ship. To be considered exposed, a veteran has to show that they actually worked on the pipes, pulled them apart and touched them. While the VA accepts lay evidence and errs on the side of the veteran, there still has to be a link to exposure in order to grant service connection. In addition to actually having a disease caused by asbestos, the VA wants corroboration that the veteran was directly exposed.

The Asbestos Trust does not require such a stringent burden of proof. Having worked in a building, ship, or plane that contained asbestos or having a job that involved working with asbestos materials is enough to file. An example of the difference would be:  Veteran Joe was stationed aboard the USS Kitty Hawk from 1969-1970; he now has a diagnosis of lung cancer.  Based on that information alone, he can file a claim with the Asbestos Trust. However, to file a claim with the VA, Joe needs to show he actually worked in direct contact with asbestos and to rule out other potential causes of his lung cancer such as smoking or other careers where he may have been exposed to asbestos showing it was more likely than not that the exposure on board the USS Kitty Hawk caused his lung cancer.

The VA, if awarded, pays a monthly compensation amount where the Trust pays out a one-time compensation based on the claim/diagnosis of the claimant. The trusts originally paid out 100% of the actual “value” of the claim, but due to dwindling funds, they now only pay out 30% of a claim. As funding decreases, that percentage may decrease as well. The total amount held in the trusts is expected to continually decrease until the trusts are exhausted; another reason that time is of the essence.

One more difference between a VA claim and an Asbestos Trust claim is that the family members of those who worked with asbestos are also eligible to file a claim against the Trust if they have an asbestos related disease.

Do I Have a Claim Against The Trust?

Unlike a VA claim, you only get one shot to get a claim against the Trust right.  You could go at it alone but you do so at your own peril.  First, there is normally a statute of limitations on filing a claim for personal injuries of a few years. In the original creation of the trusts, there was a provision that the claimants must meet federal, state, and foreign statutes of limitations; however that does not apply in these cases. Since the length of time for asbestos related diseases to manifest is so long, the restriction of the statute of limitations based on “discovery” rather than exposure. This means that the statute of limitations starts when the claimant learns of the disease, or possibility, from the date of diagnosis. It is also subject to the laws of the state of residence when diagnosed, exposed, and even which military base someone was stationed at when exposed; an attorney can advise specifically about each claim. The general statute of limitations for the Trust is shown on the map below, but each case may be different so please check with an attorney.  Even if you think you have missed the statute of limitations, again call an attorney anyway.

Click HERE to fill out this free evaluation for legal help with asbestos related and other cancers.

Second, there is the issue of which trust, or trusts, to file a claim with.  When a victim files a claim, it might need to be against multiple trusts based on being exposed over time or several sources. Claims for veterans are focused on the trusts from companies who supplied asbestos to the US government based on which branch the veteran served in, geographical locations, type of work, etc. So the asbestos used by the US Navy based out of Norfolk, Virginia to insulate pipe fittings on ships may have been from different companies than the asbestos a mechanic in the Air Force at Tinker AFB, OK is exposed to when working on the brakes of a P-3A.

Trusts payout based on the level severity of the disease and the amount the claimant files. The payout schedule for the Federal-Mogul Trust and a listing of the largest companies that currently hold an asbestos trust are below.  The Trusts usually are combined in payouts, so the schedule is similar for most of them across the board.  But this is just one schedule of payouts and they do vary.  Importantly, they also vary based on if the claimant is represented by an attorney or not.

Scheduled Values based on the Trust Agreement:

Disease Scheduled Value Average Value Maximum Value
Mesothelioma $90,000 $120,000 $400,000
Lung Cancer 1 $35,000 $45,000 $150,000
Lung Cancer 2 None $15,000 $50,000
Other Cancer $18,500 $22,500 $75,000
Severe Asbestosis $35,000 $37,000 $150,000
Asbestosis/Pleural Disease 3 $25,000 unknown unknown
Asbestosis/Pleural Disease 2 $5,000 $8,300 unknown
Other Asbestos Disease (cash pmnt) $250 $2,750 unknown

 

Current companies with asbestos trust funds in excess of $1 billion:

  • A-Best Products — A-Best Asbestos Settlement Trust
  • P. Green Industries — APG Asbestos Trust
  • B.B. Global Inc. — Lummus 524(g) Asbestos Personal Injury Trust
  • A&I Corporation — A&I Corporation Asbestos Bodily Injury Trust
  • A, C & S Inc. — A, C & S Asbestos Settlement Trust
  • API, Inc. — API, Inc. Asbestos Settlement Trust
  • Armstrong World Industries— AWI Inc. Asbestos Personal Injury Settlement Trust
  • ARTRA Group — ARTRA 524(g) Asbestos Trust
  • Asarco, Inc. — ASARCO LLC Asbestos Personal Injury Settlement Trust
  • Asbestos Claims Management Corp./National Gypsum Company — NGC Bodily Injury Trust
  • Babcock & Wilcox Company— Babcock & Wilcox Asbestos Trust
  • Bondex — Bondex Trust
  • Burns & Roe Enterprises Inc. — Burns& Roe Asbestos Personal Injury Settlement
  • E. Thurston & Sons — C.E. Thurston & Sons, Inc. Asbestos Trust
  • Celotex Corporation/Carey Canada, Inc.— Celotex Asbestos Settlement Trust
  • Combustion Engineering— Combustion Engineering 524(g) Asbestos Personal Injury Trust
  • Congoleum Corporation — Congoleum Plan Trust
  • Dresser Industries— DII Industries LLC Asbestos Personal Injury Trust
  • Eagle Pitcher Corporation — Eagle  Pitcher Industries Persona Injury Settlement Trust
  • EJ Bartels Co, Inc. — Bartels Asbestos Settlement Trust
  • Federal Mogul Corp.  — Federal Mogul U.S. Asbestos Personal Injury
  • Fedodo — Federal-Mogul Asbestos Personal Injury Trust – Fedodo Subfund
  • Flexitallic — Federal-Mogul Asbestos Personal Injury – Flexitallic Subfund
  • Flintkote Co./Flintkote Mines Ltd. — Flintkote Company and Flintkote Mines Limited Asbestos Personal Injury Trust
  • General Motors — MLC Asbestos Personal Injury Trust
  • Global Industrial Technologies (Harbison-Walker) — DII Industries LLC Asbestos Personal Injury Trust
  • G-1 Holdings — G-1 Asbestos Settlement Trust
  • Hercules Chemical — Hercules Chemical Company Inc. Asbestos Settlement Trust
  • K. Porter Co. Ltd. — H.K. Porter Asbestos Trust
  • T. Thorpe (C.D. Cal) — J.T. Thorpe Settlement Trust
  • T. Thorpe (S.D. Tex.) — J.T. Thorpe Company Successor Trust
  • Johns-Manville Corp./Philadelphia Asbestos Corp. (Pacor)— Manville Personal Injury Settlement Trust
  • Kaiser Aluminum Corp.— Kaiser Asbestos Personal Injury Trust
  • Keene Corp. — Keene Creditors Trust
  • Kentile — Metex Asbestos Personal Injury Trust
  • Leslie Controls — Leslie Controls, Inc. Asbestos Personal Injury Trust
  • MacArthur Co./Western Asbestos Company— Western Asbestos Settlement Trust
  • National Gypsum — NGC Bodily Injury Trust
  • North American Refractories Co. (NARCO) — North American Refractories Company Asbestos Personal Injury Settlement Trust
  • Owens Corning— Owens Corning Fiberboard Asbestos Personal Injury
  • Pittsburgh Corning— Pittsburgh Corning Corporation Asbestos Personal Injury Trust
  • Plant Insulation Company— Plant Insulation Company Asbestos Settlement Trust
  • Pilbrico Co. — Pilbrico Asbestos Trust
  • Porter-Hayden Co.— Porter-Hayden Bodily Injury  Trust
  • Quigley Co. — Quigley Co. Inc. Asbestos Personal Injury Trust
  • Raymark Corp. Raytech Corp. — Raytech Corporation Asbestos Personal Injury Settlement Trust
  • Shook & Fletcher Insulation Co. — Shook & Fletcher Asbestos Settlement Trust
  • Stone & Webster Engineering — Stone & Webster Asbestos Trust
  • H. Agriculture & Nutrition — T.H. Agriculture & Nutrition LLC. Asbestos Personal Injury Trust
  • Thorpe Insulation Co./Pacific Insulation Co. — Thorpe  Insulation Company Asbestos Personal Injury Settlement Trust
  • Turner & Newall — Federal-Mogul Asbestos Personal Injury Trust – Turner & Newall Subfund
  • UnitedStates Gypsum Co./USG Corp. — United States Gypsum Asbestos Personal Injury Settlement Trust
  • United States Mineral Products — US Mineral Products Company Asbestos Personal Injury Settlement Trust
  • UNR Industries/UNARCO Industries Inc. — UN Asbestos-Disease Personal Injury Trust
  • R. Grace & Co.— WRG Asbestos Personal Injury Trust
  • Yarway — Yarway Asbestos Personal Injury Trust
Cassandra Crosby, Claims Advocate

Camp Lejeune Water Contamination:  What you need to know

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Over 1 million military personnel and their family members were stationed at the US Marine Corps Base Camp Lejeune between 1953 and 1987. During this time, the people living on the base, military and civilian, ingested and bathed in water that had been contaminated with chemicals from the base water treatment facilities and a dry cleaning company in the local area. Volatile organic compounds, or VOCs, are the chemicals that caused the contamination. There were two main VOCs initially identified in Camp Lejeune’s water supply, a dry cleaning solvent, and a degreaser. However, later studies showed that there were upwards of 70 other chemicals in the water that caused health risks. The most prevalent and health hazardous contaminants found were:

  1. Perchloroethylene (PCE), dry cleaning solvent
  2. Trichloroethylene (TCE), degreaser
  3. Benzene, an indicator of petroleum-based contaminants such as jet fuel, gasoline, and diesel fuels)
  4. Trans-1, 2-DEC, a breakdown of PCE and TCE into a different contaminate
  5. Vinyl Chloride (VC), used in the formation of PVC, aerosol sprays, as a refrigerant, and to make automotive parts, wall coverings, and housewares

The VA health care system offers health care options for all qualifying veterans who served at Camp Lejeune, with or without service connection. If a veteran has one of the presumptive conditions listed below, health care is covered; if not, and they are not service connected, there will be a co-pay, but health care is available through the VA. Healthcare and healthcare reimbursements are also available for family members who lived on the base with their sponsors or children who were born of parents who lived on the base. However, there are restrictions based on the type of condition the veteran has. The VA breaks down Camp Lejeune presumptive conditions in two ways:

  1. Presumptive for disability compensation
  2. Presumptive for healthcare for veterans and family members

Presumptive for Disability Compensation

The following eight conditions are considered presumptive for veterans (including reservists and National Guard) who were stationed at Camp Lejeune between August 1, 1953, and December 31, 1987, for a minimum of 30 days. Presumptive means the veteran only needs to be proof of being stationed at Camp Lejeune during the timeframes noted and for the minimum number of days; there does not need to be evidence of an in-service injury, treatment, or condition. There does need to be a current diagnosis of one of the presumptive conditions to file a claim.

There are eight presumptive conditions for disability compensation for Camp Lejeune veterans. They are:

  1. Adult leukemia
  2. Aplastic anemia and other myelodysplastic syndromes
  3. Bladder cancer
  4. Kidney cancer
  5. Liver cancer
  6. Multiple myeloma
  7. Non-Hodgkin’s lymphoma
  8. Parkinson’s disease

Presumptive for Healthcare for Veterans and Family Members

Veterans and family members can also receive free healthcare for 15 additional presumptive conditions. These conditions do not qualify for presumptive disability compensation, although veterans with the following conditions are encouraged to file a claim even if the condition is not presumptive due to the links to the toxins. The conditions include:

  1. Esophageal cancer
  2. Breast cancer
  3. Kidney cancer
  4. Multiple myeloma
  5. Renal toxicity
  6. Female infertility
  7. Scleroderma
  8. Non-Hodgkin’s lymphoma
  9. Lung Cancer
  10. Bladder cancer
  11. Leukemia
  12. Myelodysplastic Syndromes
  13. Hepatic steatosis
  14. Miscarriage
  15. Neurobehavioral effects

If family members who have the above conditions related to their stay at Camp Lejeune and have had past out-of-pocket costs due to medical care (not covered by healthcare such as co-pays or deductibles), they may also be eligible for reimbursement by the VA (family members only). Qualifying family members include those whose sponsor (the qualifying veteran) was on active duty and served at Camp Lejeune for 30 days or more between August 1, 1953 and December 31, 1987; was the spouse or dependent of the veteran during the same period; and lived on the base for 30 days or more between the same dates. This includes the infants born of women pregnant on the base during this period.

What Does This Mean for Veterans and their Families?

The VA Rule 38 CFR 3 effective March 14, 2017 (final rule), added certain presumptive diseases associated with the contaminants associated with Camp Lejeune. The rule also includes former reservists and National Guard members who were at the base for no less than 30 days during the presumptive period.

While there are no provisions for the seven conditions that are not presumptive for veterans for disability compensation, that does not mean that veterans should not file a claim for compensation. The difference is that there will need to be medical evidence to show a link to the disability and the exposure to the toxins, which is not required for the 8 presumptive conditions. Claims filed within one year of the rule or pending will, according to the VA, have an effective date of the ruling or the date of claim, whichever is earlier. Therefore, if a veteran files a claim before March 13, 2018, the effective date of their claim will be retroactive back to March 14, 2017.

If you are not sure if toxin exposure at Camp Lejeune caused your medical condition or toxins at other military installations, please call us for a review of your case. Our experts can review your medical and service records and determine if the military installations you were assigned to have toxins related to them during the time periods of your assignments and if any conditions you are diagnosed with may be related.