In December 2021 Partner Mandy Kelly received a long overdue win for one of her clients. The Veteran came to Mandy Kelly in 2019 after tirelessly fighting the VA since 2011. When the Veteran reached out to Mandy Kelly he felt defeated after recently receiving a confusing BVA decision. This decision from November 2018 granting compensation under 38 U.S.C. §1151 for aggravation of a pre-existing anxiety disorder, but failing to give any compensation to the Veteran.
Where a Veteran suffers an injury or aggravation of an injury as a result of VA medical treatment, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service-connected. 38 U.S.C. § 1151 (2012).
What the client couldn’t understand is how he could be granted benefits, but not entitled to any money per month. The VA’s reason for this finding was based upon what is commonly referred to as Allen Aggravation. A United States CAVC case, Allen v. Brown, 7 Vet. App. 439 (1995), provided for establishing service connection for that amount of increase in an otherwise nonservice-connected condition which was caused by aggravation from a service-connected condition. In this case, although the BVA agreed that due to the care he received at the VA Medical Center his anxiety disorder was aggravated, the Regional Office erroneously determined that the symptoms were the same before and after this aggravation.
Attorney Mandy Kelly was able to review the medical records prior to the VA’s negligent act, as well as the medical records after, and show the Judge that the Veteran’s mental status was in fact forever changed due to VA care. Mandy Kelly was able to have a psychologist review these records and provide the proper baseline level prior to the VA’s neglect act and provide the Board of Veterans’ Appeals with a well-reasoned medical opinion supporting this conclusion.
A Board of Veterans’ Appeals Decision from December 2021 ultimately determined that the veteran was essentially symptom free prior to the VA’s negligent act and that the requirements for TDIU were met. The Judge determined that the Veteran’s service connected anxiety condition precluded him from securing or maintaining substantially gainful employment for the entire appellate period.
The lawyers at Disability Law Group understand how complicated this area of law can be. If you, or someone you know, suffers from anxiety due to VA care or due to your time in service, contact Disability Law Group today for your free consultation. Our attorneys and staff specialize strictly in disability benefits, and we will fight to help you win every benefit you deserve. Whether you were already denied or if you would like advice from the very start, contact us today and speak with one of our attorneys to understand your rights and get the representation that you need.
