Wood & Smith Legal Services, LLC

Veterans Courts in Alabama

VETERANS COURT copy

Recently, I attended a presentation on Veterans Courts in Alabama.  As of this writing, fifteen active Veterans Courts operate in Alabama, while ten Veterans Courts are in the planning stages.  With sixty-seven counties in the state, there is still a long way to go in order to offer Veterans Courts in every county.  Below are some statistics I learned during the presentation.

  • 2.5 million U.S. veterans have deployed to the Persian Gulf, Afghanistan, and Iraq
    • 40,000 of these veterans are from Alabama
      • 30,000 of these veterans from Alabama have been diagnosed with Post-Traumatic Stress Disorder (PTSD)
  • In 2014, the VA spent $50 million to treat veterans with PTSD
  • Most veteran suicides occur within the first 4 weeks of returning from combat
  • Veteran suicide rates increase as veterans turn 60 years old
  • Unemployment rates of veterans are higher than unemployment rates in the average U.S. population
  • In 2014, the number of veterans committing suicide was greater than the number of service members killed in combat
  • About 420,000 veterans live in Alabama

Some of the statistics were surprising.  I was especially sad to learn about the high number of suicides among veterans.

Who is a Veteran?

There is no clear, agreed upon definition, at least in Alabama.  For instance, in Shelby County, it is anyone who took the oath to become a service member.

However, an Alabama statute defines a veteran as “any person … who served on active duty … during any war in which the United States has been engaged, and who shall have been discharged or released from such services under conditions other than dishonorable.”  Ala. Code § 31-5-1(4) (1975).

Another  code section of Alabama law seems to define a veteran as someone who “honorably served and is eligible as a former member of the U.S. military to be treated by the United States Department of Veterans’ Affairs.”  Ala. Code § 12-17-226.3 (1975).

Veterans Courts

Veterans Courts are a hybrid between drug courts and mental health courts.  Some of these courts for veterans are called Veterans Courts, and some are called Veterans Treatment Courts.

Veterans Courts consist of the following team members:

  • Drug Court team members
  • U.S. Department of Veterans Affairs Representatives- These members are integral because during the court appearance, they also help veterans schedule VA appointments, access service records, and provide information on veterans benefits, among other issues.
  • Veteran Mentors

There are some specific benefits to veterans for completing Veterans Court.  If a veteran is incarcerated for more than 60 days, the veteran may lose all of his or her VA benefits.  Veterans Courts allows veterans facing jail time to make bond and be supervised by Veterans Courts in an effort to help veterans retain their benefits.  Additionally, the recently enacted expungment law in Alabama allows criminal charges against veterans to be dismissed if the veteran successfully completes the treatment program.

The first Veterans Court established in the U.S. grew out of a judge’s experience with a veteran in Drug Court.  Veterans Court first began in Buffalo, New York, in 2008.

Right now, Alabama is the only state with a statewide campaign to have Veterans Courts in every county.

The Future

AlaVetNet is a project aimed at streamlining access to veteran’s services.  Once it becomes established, hopefully, it really will make accessing services easier because right now, veterans are faced with a confusing maze when applying for disability compensation, pension, educational benefits, and other services for veterans.

According to the presentation, the greatest indicator of future criminality is homelessness.  By working to help veterans through Veterans Courts, we may be able to prevent homelessness within this population and thereby reduce the number of veteran-related crimes, which will benefit everyone.

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Merry Christmas!

Merry Christmas

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Common Law Spouses & VA Benefits

Wedding CakeA handful of states recognize common law marriage, and in these states questions arise about the benefits due to veterans with spouses married through common law and benefits common law married spouses may be due.  Two frequent questions asked by veterans and their spouses is:

1. I had a common law marriage to my spouse.  As a service-connected disabled veteran, may I receive VA benefits in order to support my spouse?

2. I would like to file for survivor benefits as a spouse, but I had a common law marriage to a service member.  Am I eligible for VA benefits?

There is no simple answer to these questions, but U.S. law and a VA decision issued last year shed some light on these questions.

What does the law say?

U.S. law provides that a veteran’s “marriage shall be proven as valid for the purposes of all laws administered by the Secretary according to the law of the place where the parties resided at the time of the marriage or the law of the place where the parties resided when the right to benefits accrued.”  38 U.S.C. § 103(c).  Basically, this means state law determines whether or not a veteran is or was married.

If your state recognizes common law marriage, your spouse may qualify as a common law spouse for purposes of VA benefits.

What are the requirements for the VA to recognize my common law marriage?

Again, this differs by state.  In Alabama, where our firm is based, the law requires the following:

  1. Capacity to marry
  2. Intent to marry
  3. Establish yourself as married
  4. [C]ohabitation or mutual assumption of marital duties and obligations.

Clear and convincing proof” is required to establish these three elements in Alabama, and this can be a high burden to prove.  For example, in one case, the Court found that even though the veteran’s death certificate listed the veteran as married, the veteran was not actually married at the time of his death.  Other state requirements likely differ from these, and an attorney in your state should be able to inform you of the requirements for a common law marriage in your state.

If your state already recognizes your common law marriage, it will be difficult for the VA to argue that you your marriage does not meet the requirements for a common law marriage in your state.

Decisions on common law marriages

Last year, the U.S. Court of Appeals for the Federal Circuit determined that two marriages in Alabama did not meet the requirements for common law marriages under Alabama law.  The facts of each case will differ, and it is important to remember that even though the VA may be required to recognize a common law marriage for states that also recognize common law marriages, proving the existence of a common law marriage may be very challenging.

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Service Connection by Aggravation

Walking with a Cane

Service connection by aggravation is challenging, but not impossible, to establish.  If you are a veteran who had a medical condition before joining the military, and if that medical condition worsened due to an injury received while in active duty service, you may be able to show service connection by aggravation in order to receive VA disability compensation.  Two different presumptions should be evaluated when determining service connection by aggravation: presumption of soundness and presumption of aggravation.

Presumption of Soundness

The law presumes that members of the military are of “sound” (healthy) condition when entering service.  When a service member’s records upon entry into service do not indicate the member was already suffering from a medical condition, the burden falls on the VA to establish the existence of a pre-existing medical condition.  In order to do this, the VA must show that the service member’s condition was a) pre-existing, and b) not aggravated by military service.  This evidence must be shown by “clear and unmistakable evidence.”

Presumption of Aggravation

The presumption of aggravation standard is used to analyze whether or not a veteran’s condition was made worse because of military service.  The presumption of aggravation may work in the service member’s favor because this presumption requires the VA to show by “clear and unmistakable evidence” that the medical condition worsened because of natural progression rather than because of military service.  This is a very high standard, and it can be difficult for the VA to prove.

Both the presumption of soundness and the presumption of aggravation can be confusing concepts for all parties involved in a VA claim.  However, they are important to understand because they could make the difference in proving your VA claim.  Below is an example, taken from an actual court case, of how the VA examines claims of service connection by aggravation.

Real Life Example:

  • Veteran’s enlistment examination conducted in 1942 did not contain any notes about a disability, about a seizure disorder, or about any type of disability.
  • The enlistment examination specifically noted the veteran did not claim epilepsy as a condition at the time of entering military service.
  • A physical exam did not lead to a diagnosis of any nervous system disorders.
  • This veteran was entitled to the presumption of soundness because his military medical examination did not document or detect his condition, even though the veteran had suffered seizures on and off since age 13.

The full analysis of the case is available here.

 

 

 

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Need to Reschedule Your BVA Hearing?

gavel

Has your hearing before the Board of Veterans’ Appeals (BVA) been scheduled, but you need to reschedule it?  If so, you may request a different date for your hearing, but you will need a strong reason for requesting the date change.

When Should You Make Your Request?

Under 38 CFR § 20.704 Rule 704(c), requests for a change of hearing date “may be made at any time up to two weeks prior to the scheduled date of the hearing if good cause is shown (emphasis added).

What is “good cause”?

Not having your C-file, if you have made attempts to obtain it, may be a strong reason for requesting a reschedule.  A medical emergency is also usually a strong reason.

The regulation specifically mentions the following examples of good cause: “illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness.

Arguing that the original hearing date is scheduled for your usual lunch time is not generally going to be considered “good cause.”  When requesting a rehearing, you need to provide solid reasons that you need to reschedule it.

Remember: Just because you request a different date for your hearing doesn’t mean your request will be granted.

What are the requirements for the request to reschedule?

  • As previously mentioned, the request must be in writing (either typed or handwritten).
  • The request must be made no later than two weeks before the scheduled hearing date.
  • The request must detail why you need a different hearing date.  Simply requesting to reschedule is not enough.
  • According to the wording of the regulation, the request “must be filed with the office of the official of the Department of Veterans Affairs who signed the notice of the original hearing date.“  This may be a challenge.  The most recent BVA hearing notice I have seen did not contain a signature.  In this situation, you could send the written request to a) the address provided at the back of your BVA hearing notice where the letter indicates all correspondence is to be sent, and/or b) to your regional VA director.

If it is at all possible to attend your originally scheduled BVA hearing, this is probably better than requesting to reschedule it.  Sometimes life happens, though, and when it does, your request for a reschedule may be granted.

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