The Department of Veterans Affairs has adopted a final rule which establishes secondary service connection for certain diagnosable illnesses associated with service connected traumatic brain injuries. The rule became effective on January 16, 2014, and, although it does not provide for presumptive secondary service connection, it provides for a framework for identifying circumstances under which certain illnesses will, absent clear evidence to the contrary, be found to be the secondary result of a service connected traumatic brain injury. The VA rule promotes efficiency and consistency in claim adjudications and making it easier for qualifying claimants to establish service connection for the conditions.
The VA can reduce a veteran's VA disability rating if it determines that the veteran's disability has improved. The VA can reduce a disability rating at any time a medical examination indicates improvement - the veteran does not have to file a new claim or file for an increased rating for the VA to reduce a disability rating.
Previous decisions of the VA which are final and binding such as decisions of service connection, age, marital status, duration of service, dependency, line of duty, extent of disability, and other issues decided by the VA are accepted as correct in the absence of clear and unmistakable error (CUE). Clear and unmistakable error is a legal argument that a VA decision was wrong. It is not enough, however, to simply allege that the VA was wrong. The veteran must prove that VA regulations and facts specific to his or her case, in existence and in the case file at the time the VA issued its decision, could have led to only one conclusion and that the VA adopted the wrong conclusion. The veteran must show that the VA's decision would have been manifestly different but for the alleged error of fact or law. Generally, CUE comes into play when the correct facts were not before the Board of Veterans' Appeals or the regulatory provisions in existence at the time were incorrectly applied by the Board of Veterans' Appeals.
Total Disability based on Individual Unemployability (TDIU or IU) allows a veteran to receive compensation for 100% disability even if the veteran has less than a 100% schedular rating. TDIU is based on the fact that the service connected disability, though less than 100%, causes the veteran a total inability to work. VA regulations provide that for a veteran to receive TDIU the veteran must have one service connected disability rated at 60% disabling or a combination of disability ratings totaling 70% with one of the included ratings being at least 40% disabling. To be entitled to TDIU, however, the veteran must also prove that he or she is unable to secure or follow gainful employment as a result of his or her service connected conditions. Call the experienced Veteran's Disability attorneys at Gardberg & Kemmerly, P.C. today for a free case evaluation to determine if you are entitled to TDIU.
The United States House of Representatives voted this week to give final approval to a bill giving disabled veterans and veterans' survivors a 1.5 percent cost of living increase. The United States Senate voted on the 1.5 percent COLA increase in October so if, as expected, President Obama signs the measure into law the cost of living increase will become effective December 1, 2013. Veterans will begin seeing the increase in January of 2014.
Nearly 80,000 Vietnam veterans were discharged under other than honorable conditions. Being discharged under other than honorable conditions prevents those Vietnam veterans from receiving veteran's disability benefits. How many of those veterans discharges could have been honorable had PTSD been taken into consideration? This is the exact question raised by the case of Shephard v. McHugh. Shephard v. McHugh, 3:11-cv-00641 (D. Conn. 2013).