LAW OFFICE NOTES
April 5, 2009
James R. Linehan PC
7301 Ranch Road 620N
155-328
Austin, Texas 78726
800-266-9535 TOLL FREE
Greetings!

It is time again to answer some common questions that are routinely asked by claimants in their Veterans disability, federal workers' compensation, medical disability retirement and social security disability claims.  If you have a specific question you for which you would like an answer, please feel free to contact me directly.
 
Sincerely,
Jim Linehan
 
I served offshore Viet Nam in the Navy. I now have been diagnosed with Type II diabetes and neuropathy. I never went ashore.  Am I entitled to a presumption of Agent Orange Exposure and entitled to compensation benefits?

No.  The VA laws presume that veterans who served in Viet Nam were likely exposed to Agent Orange and if they develop one or more of a certain set of disease then they are presumed to be entitled to disability compensation benefits.
However the Courts have now ruled that service in Viet Nam means boots on the ground.  "Blue Water" vets such as yourself, serving offshore Viet Nam but never physically setting boots on the ground in Viet Nam are not entitled to a presumption of service connected disability due to Agent Orange exposure.  Click here to read this case.  To prove your claim you are going to have to show some proof of actual physical exposure to Agent Orange during service.

I was separated from the Marines more than 30 years ago. Now I have been diagnosed with Post Traumatic Stress Disorder. My psychiatrist says it was due to combat in Viet Nam. Do I have a claim for VA disability, or is it too late to file?

You can file your claim for VA disability compensation due to your PTSD at any time. To be successful on your VA disability claim for PTSD you must show a connection between your PTSD and your service. You have already proven that you have PTSD, now you have to prove that the PTSD was service connected. The VA will demand proof of sort of stressor that occurred in service. You can provide that with medical records at time of service show some medical attention for PTSD while in service, or "buddy statements" showing a particular documented event (battle, combat, etc) that occurred in which you were present on specific date of locale in Vietnam. Your overall evidence must demonstrate that it is more likely than not your PTSD was incurred in service or that there was an in service aggravation of a pre-existing condition. Click here to read a sample PTSD case.

My daughter was injured in basic training and is about to receive a medical discharge.  Does she qualify for VA benefits?

In order to qualify for most VA benefits, she must be a "veteran" in order to be eligible. For VA purposes, the definition of "veteran" is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. Active service includes: (1) Active duty; (2) Any period of active duty for training during which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty.
Assuming she meets basic definitions as a veteran and she was injured in service and subsequently discharged due to this in service injury she could be entitled to significant benefits depending upon her injury once she is discharged. She will need to be pro-active to file her claims. She can start by doing so on line at the va.gov VA VonApp website or by filing a VA form 21-526. She will need to attach all medical records, DD 214, and any dependency records.

I was examined by a VA doctor for a spinal injury. He pulled and snapped my neck, now I have a neck injury due to his treatment.  What do I do?

Under 38 U.S.C.S. § 1151 , if a veteran is injured because of VA hospitalization, medical or surgical treatment, training and rehabilitation services, or a compensated work therapy program, not as the result of the veteran's own willful misconduct, and the injury results in additional disability or death, disability compensation or dependency and indemnity compensation (DIC) will be awarded as if the injury or death were service connected.
There is no deadline or statute of limitations for filing a Section 1151 claim.
You should file a VA form 21-4138 to start the process. Click here and type the form number into the "search" box to get started.

Does the VA have to provide a medical examination for me to help me prove my VA disability claim?

 Title 38 Sec 5103 provides the procedures for medical examinations for VA compensation claims.  Medical exams are required when
(1) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (a) shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.
(2) The Secretary shall treat an examination or opinion as being necessary to make a decision on a claim for purposes of paragraph (1) if the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant)--
(A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and
(B) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but
(C) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Click here to read a sample case.


I am just now filing my claim for VA disability compensation due to an injury I received while in the Army.  What are the basics I have to prove on my claim?

Here are the initial requirements:
A veteran seeking service-connected disability compensation must satisfy three fundamental requirements before the VA will grant compensation benefits.
First, there must almost always be a medical diagnosis of current disability.
Second, there must be medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury.
Third, there must almost always be medical evidence of a link or nexus between the in-service occurrence or aggravation of a disease or injury and the current disability.
Click here to read a sample current case.

I have been receiving VA disability for years due to my service connected back injury.  A few years ago while working for the USPS I injured by back and have been receiving federal workers' compensation (OWCP) benefits.  Can I keep both benefits?

No. If a veteran is entitled to compensation from the Office of Workers' Compensation Programs (OWCP) in the Department of Labor, the agency responsible for administering the FECA, and is also entitled to VA compensation for the same disability,he must elect which benefit he will receive. An award cannot be approved for the payment of compensation concurrently with compensation from OWCP. There is no prohibition against the payment of benefits under the FECA and from VA when such benefits are not based on the same disability.  Click here to see a sample case.

Trying to understand the laws and regulations surrounding disability benefits can be incredibly confusing for the layman. It's almost impossible unless you have devoted your education and career to understanding this specific niche. If you want to cut through the all the confusing obstacles that stand in your way, give the offices of James R. Linehan a call as soon as possible. If too much time passes, you could miss out on your
Veterans Disability,
Social Security Disability,
 Federal Workers Compensation OWCP,
or
OPM medical retirement benefits.
Depending upon the facts of your claim, you may very likely be entitled to significant benefits on your federal claim. Such benefits; depending upon the specific agency claim, could include free medical care for life, tax-free compensation benefits for life, tax-free scheduled award settlement benefits and more. 

It is entirely up to you to obtain those benefits; the federal agency, the government and your employer generally will not assist or guide you. 
 
To obtain a non-representative file review consultation of your claim; please go to click here.

To post and ask myself and others questions about issues of OWCP, SSA, VA or OPM click here.

To talk to me live via webcall simply click here.

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