Gardberg & Kemmerly, P.C. Attorneys at Law

VA CASE UPDATE

VA CASE UPDATE

Last month I was fortunate enough to attend the National Organization of Veterans Advocates (NOVA) Fall Conference in Providence, Rhode Island. NOVA is made up of attorneys from across the country whose main practice focus is assisting veterans in their claims for benefits from the VA. The NOVA Conference provided the opportunity to discuss the recent changes within Veterans Affairs and the Veterans Courts.

There were three cases that were particularly of interest. They centered on the presumption of soundness, individual unemployability (IU), and military sexual trauma (MST). A summary of each case, and the impact it could have on your claim can be found below:

McKinney v. McDonald (Court of Appeals for Veterans Claims)- Presumption of Soundness

The McKinney case dealt with a Veteran's claim for disability compensation based on hearing loss. Mr. McKinney was denied benefits based on the fact that hearing loss had been recorded and noted on his entrance exam and the VA reasoned that this notation extinguished his presumption of soundness. A "notation" or recording of a pre-existing condition on a veteran's entrance exam can extinguish a veteran's presumption of soundness. The presumption of soundness states that all service members are considered to be in sound condition, unless a defect, injury, disease, or infirmity is noted on their entrance exam.

Mr. McKinney's hearing loss at the time of his entrance exam was not severe enough to constitute a "disability" for VA purposes. A "disability" for VA purposes refers to a veteran's impairment in earning capacity due to a disease or injury and not simply the existence of the disease or injury. Mr. McKinney argued that because his hearing loss at his entrance exam was not severe enough to constitute a disability for VA purposes, that his presumption of soundness would still be intact.

The Court agreed with Mr. McKinney and held that the notation of a pre-existing condition at an entrance exam is not enough to extinguish the veteran's presumption of soundness. The pre-existing condition must be severe enough to be compensable under VA's diagnostic ratings at entrance in to service to extinguish a veteran's presumption of soundness.

Ortiz-Valles v. McDonald (Court of Appeals for Veterans Claims)- Marginal Employment and Individual Unemployability

Mr. Ortiz-Valles was denied in his claim for entitlement to individual unemployability (IU). In their decision, the VA stated only that the evidence did not show that veteran could not obtain or maintain substantially gainful occupation. However, VA did not consider whether veteran was capable of only marginal employment in their decision. VA argued that they only had to consider marginal employment if the veteran was currently employed and otherwise would only have to consider whether the evidence showed that veteran was unable to obtain or maintain substantially gainful occupation.

Mr. Ortiz-Valles challenged this interpretation by VA, arguing that VA is required to consider whether Veteran is only capable of marginal employment even when veteran is not currently employed. The Court agreed, holding that VA must consider whether veteran is capable of only marginal employment even if veteran is not currently employed. Failure to consider marginal employment is reversible error. Therefore, if you are a veteran and currently unemployed, VA must consider whether you would only be capable of marginal employment. If a veteran is only capable of marginal employment and meets the ratings requirements for IU then that veteran is entitled to IU.

AZ v. Shinseki (United States Court of Appeals; Federal Circuit)- Reporting of In-Service Military Sexual Trauma (MST)

Veterans who were sexually assaulted while in-service typically do not report the assault to their superiors, military law enforcement, or civilian law enforcement. Due to a lack of service records documenting an assault, VA has denied many claims for MST because the incident goes unreported. However, the AZ case has changed the way VA must consider a lack of service records documenting an assault.

Until this case, VA treated a lack of service records reporting or regarding an assault as affirmative evidence that an assault did not occur in-service. In the AZ case the Court held that absence of service records documenting unreported sexual assaults cannot be used as evidence proving that an assault did not occur. Further, a veteran's failure to report in-service sexual assault to military authorities cannot be used as evidence proving that an assault did not occur. Basically, VA cannot deny your claim for benefits based on MST solely because there are no service records documenting the incident. VA must provide other reasoning to deny the claim other than a lack of service records.

If you have any questions about how these cases may affect your claim for benefits please contact the experienced veterans' disability attorneys at Gardberg & Kemmerly, P.C. today for a free case evaluation. Gardberg & Kemmerly serves veterans across the United States from their home office in Mobile, Alabama.

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