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.

FacebookTwitterGoogle+Share

Merry Christmas!

Merry Christmas

FacebookTwitterGoogle+Share

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.

FacebookTwitterGoogle+Share

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.

 

 

 

FacebookTwitterGoogle+Share

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.

FacebookTwitterGoogle+Share

What I Learned about PTSD from Invisible Scars

Profile of Man

Recently, I watched Invisible Scars, a documentary about veterans with Post-Traumatic Stress Disorder (PTSD).  Veterans, active duty service members, and family members of combat veterans or service members may get a free copy of the documentary here.

The documentary follows veterans who recount their stories of PTSD, including how they recognized it or were diagnosed with it, how they have been treated for it, and the effects it has had on their lives.  The veterans in the documentary are different ages and fought in different wars.  One of the veterans even lives in Alabama (at least at the time the documentary was made), where our firm is based and also where this documentary premiered.  The documentary also provides commentary by those involved with treating veterans suffering from PTSD along with policy makers and others who support veterans.  Below are some things I learned about PTSD from the documentary.

Former Names for PTSD

PTSD has existed for years, although in previous war times it was referred to as “Soldier’s Heart” or “Shell Shock.”

Recognizing Signs of PTSD

Signs of PTSD include:

  1. Re-experience (flashbacks)
  2. Avoidance Symptoms (avoiding movies or people, for example, because they trigger certain feelings)
  3. Negative Feelings
  4. Hyper-arousal (inability to relax and/or difficulty in sleeping and difficulty concentrating)

Barriers to Treatment for PTSD

Some things that prevent those suffering from PTSD from seeking help include:

  1. Worries about losing employment or finding future employment
  2. Worries of losing one’s security clearance
  3. Stigma
  4. Not understanding PTSD symptoms

In the documentary, one young veteran explained how service members may overlook or not understand PTSD symptoms, at least in the deployment setting.  This veteran mentioned that it can be difficult for deployed service members to recognize PTSD because everyone in combat has the same symptoms.  He described situations where service members are weary of being around each other all day, every day.  Many of them have trouble sleeping in uncomfortable conditions.  Some service members talk in their sleep, and they often sleep in the same rooms and hear one another talking.  People become agitated easily, and this is just one result of living together under difficult combat conditions.

In the situation I just described, it seems logical that service members may have trouble identifying members (or themselves) experiencing PTSD until they return home and are no longer all living together.

Programs to Help

Some physical activity programs have shown promise in helping veterans deal with PTSD.  These programs include:

  1. Yoga
  2. Acupuncture
  3. Martial Arts

One of the veterans interviewed for the documentary has an older brother who is also a veteran.  Listening to the younger brother describe how his older brother dealt with PTSD through alcohol abuse was very sad and really illustrated to me the difficulty in treating some veterans who suffer with PTSD.  Veterans in the same family suffering from the same condition experience very different results, even though the documentary does not delve into the reasons for these differences.

The documentary lasts a little over one hour, and it is well worth your time if you have a chance to watch it.

 

FacebookTwitterGoogle+Share

Are National Guard Members and Reservists Eligible for VA Disability Compensation?

Question Mark

The short answer to this question is: yes!  Members of the National Guard and reservists may qualify for VA disability compensation.  Qualifying for disability compensation requires some amount of active duty service time, though.

For members of the National Guard or reservists, qualifying service time includes periods of active duty service, which many reservists and National Guard members experience over the course of their careers.  Deployment during war-time is one type of active duty.

National Guard members may also qualify to receive VA disability compensation benefits through full-time National Guard duty, like emergency response to a national emergency.

When members of the National Guard or reservists are activated by a state rather than by the federal government, this period of state service does not count towards active duty benefits available through the VA because it is service to a state rather than to the federal government, and this service is paid out of state funds.

If a member of the National Guard or a reservist has completed an active duty service commitment, he or she may be eligible for VA disability compensation if the disability was the result of an injury or disease incurred or aggravated in the line of duty during active duty or active duty for training.

When a member of the National Guard or a reservist is injured during inactive duty training, he or she may only be eligible for VA disability compensation if the disability is the result of an injury, a heart attack, or a stroke.  So, the types of conditions compensated for injuries experienced during inactive duty training are very specific.

In addition to the above listed requirements, to qualify for VA disability compensation, a National Guard member or reservist must be at least 10% disabled by the condition for which the member is claiming compensation.  The individual’s discharge must also be “under other than dishonorable conditions.”

 

FacebookTwitterGoogle+Share

VA Automobile Allowance and Adaptive Equipment Allowance

Car Close-upA veteran with certain service-connected disabilities may qualify for an automobile allowance.  As of this writing, the cap on this benefit is $19,817.00, and these funds are to be paid directly to the individual or business selling the vehicle.

Who is eligible for this allowance?  Active duty service members or veterans with a) service-connected disabilities or b) disabilities that are treated as service-connected are eligible.  In addition to these requirements, the following must also be met:

  • Loss of one or both feet, or permanent loss of use of one or both feet, or
  • Loss of one or both hands, or permanent loss of use of one or both hands, or
  • Permanent vision impairment of both eyes.

An automobile allowance may only be paid to the veteran once during his or her lifetime, and the veteran should wait until the VA approves the automobile allowance before purchasing a vehicle.  As mentioned previously, the VA pays the seller of the vehicle directly rather than paying or reimbursing the veteran or service member.  In order to demonstrate the veteran’s eligibility for this allowance, the following specific information should be shown:

  • The veteran lost at least one hand or foot OR the veteran has a permanent loss of use of at least one hand or one foot, or
  • Permanent damage to both eyes with
    • 20/200 vision or less in the better eye when wearing glasses, or
    • Better than 20/200 vision, but a severe deficiency in peripheral vision

Veterans that do not qualify for  an automobile allowance may still qualify for an adaptive equipment allowance.  This allowance includes power steering, power brakes, power windows, and other equipment, including equipment designed to help the veteran or service member enter or exit the vehicle.  Veterans and active duty service members may qualify for the adaptive equipment allowance if the following criteria are met:

  • Loss of one or both feet, or permanent loss of use of one or both feet, or
  • Loss of one or both hands, or permanent loss of use of one or both hands, or
  • Permanent vision impairment of both eyes, or
  • Ankylosis in one or both knees or hips, and
  • The above listed conditions are service related or treated as service related by the VA.

To apply for both an automobile allowance and an adaptive equipment allowance, VA Form 21-4502 may be used.  To apply for an adaptive equipment allowance only, VA Form 10-1394 may be used.

 

 

FacebookTwitterGoogle+Share

How to Get Your C-File

Microscope C-file blog

Last week, our blog discussed what a C-file (claims file) is and why it is important to veterans seeking VA benefits.  Today, our blog focuses on how to get your C-file from the VA.  If your claim for disability compensation or pension has been denied, your C-file is very important to appealing your claim.

Here are a few ways to request your C-file:

  1. Travel to your local VA Regional Office and request a copy of your C-file.
  2. Complete VA Form 3288 and mail it to your VA Regional Office.
  3. Submit a FOIA request to the VA.

Of these methods, submitting a FOIA request may result in obtaining your C-file faster than the other two methods, and it doesn’t require travel, which may make it an easier option for many veterans.

If you would prefer to travel to your VA Regional Office to request your C-file, calling ahead to schedule an appointment might be helpful so the VA knows you are coming and what you are seeking.  This doesn’t mean a copy of your C-file will be ready for you as soon as you arrive at the VA, and even with an appointment, it may take you awhile to actually receive a copy of your C-file.  It never hurts to schedule an appointment, though, in the hopes it will speed up the time you wait for your C-file.

The second option listed is to complete VA Form 3288.  This option might work for you, but based on our experience, you will probably receive your C-file faster by a) traveling to your VA regional office to request it, or b) submitting a FOIA request, which is explained in the below paragraph.  Still, completing this form is an option.

The third option is to submit a FOIA request for your C-file.  The VA’s website even provides a brief explanation about making a FOIA request.  If you submit a FOIA request, keep these requirements in mind (they are also listed on the VA’s website in the above link):

  • The request must be in writing.
  • The request should adequately describe the documents, such as the C-file.
  • The request should include a phone number or email address where you may be reached.
  • The request should be sent to the correct facility.  In the case of a FOIA request for a veteran’s C-file, here is the list of VA regional offices and their FOIA officers posted on the VA website as of October 11, 2014.  A veteran’s FOIA request should generally be sent to the FOIA officer at the veteran’s regional office.

Another requirement listed on the VA’s website is the FOIA request should mention the requester agrees to pay fees or asks for a fee waiver while also providing a reason for the fee waiver.  However, veterans are eligible to receive the first copy of their C-file for free.  After a veteran receives his or her first copy of the C-file, though, he or she would need to pay fees associated with producing additional copies or request a waiver of fees.

Here is a sample FOIA request provided on the VA’s website.

FacebookTwitterGoogle+Share

C-Files Are Crucial for VA Disability Compensation Claims

C-File Blog

C-files are crucial for VA disability compensation claims for several reasons.  When I first became VA accredited and began reviewing VA disability compensation cases, I did not know exactly what a claims file (C-file) was, but I knew it was important.  Every continuing legal education seminar I attended mentioned the importance of the C-file.  Why is it so crucial to a VA claim?  The short answer is: it tells what information the VA used to decide a veteran’s claim, whether the claim was granted, denied, or granted with a lower rating than the veteran believes to be accurate.

If a veteran has a PTSD diagnosis, but this diagnosis does not appear in the veteran’s C-file, this means the VA did not consider this diagnosis in making its initial decision on the claim.  Maybe a veteran’s C-file contains information on two different veterans, perhaps with similar names or Social Security numbers.  This could cause the VA to make an incorrect decision regarding the veteran’s claim.  Just because a veteran has been diagnosed with a certain condition doesn’t mean the VA considered that diagnosis or other information related to it.  If the information is not in the C-file, the VA did not consider it.

This is why it is so important for a veteran to obtain his or her C-file once the veteran’s claim has been initially decided by the VA Regional Office.  Reviewing the C-file helps the veteran prepare for an appeal by having a better understanding of how the VA reached its decision.  Information that may be in a veteran’s C-file includes:

  • Personnel Records
  • Medical Records, including the Compensation and Pension Exam (C&P)
  • Denial Letter (if applicable)
  • Ratings Decision and Code Sheet
  • Initial Application for Benefits
  • DD Form 214 (DD214 – Certificate of Release or Discharge from Active Duty)

Depending on your particular claim and the stage you are in the process of it (initial appeal, second appeal), your C-file may contain more documents, too.

Once a veteran receives his or her C-file, the veteran may find the documents are not in order and are challenging to understand.  This is not uncommon, and it may take some time to put your C-file together in a way that makes sense to you and helps you see how the VA reached its decision.  Some C-files are also very lengthy.  Don’t give up!  Once the C-file is organized, it is an invaluable tool for every stage of the appeals process.

FacebookTwitterGoogle+Share