female veteran and attorney

Can a VA Disability Claim Be Garnished?

The short answer to the question of whether a person’s Veterans Administration (VA) disability benefits can be garnished is a qualification sometimes. When a veteran falls behind on paying child support or spousal support, the court or the state might issue an order to garnish the veteran’s VA benefits. Sometimes those benefits can get garnished, but not always.

A Michigan VA disability claims attorney can help you navigate the process of the attempted garnishments of VA benefits. Let’s explore the question, can a VA disability claim be garnished?

Who Gets to Decide if a Veteran’s VA Disability Benefits Can Be Garnished

You might think that the judge or the state administrative agency that issued the garnishment order would decide if a veteran’s VA disability benefits can get garnished and, if so, the amount to be garnished; but that is not the case. The VA, not the courts or the states, gets to determine if the particular veteran’s VA disability benefits can get garnished and, if so, how much garnishment is reasonable.

The General Rules of Garnishing VA Disability Benefits

Usually, one can only garnish the VA disability benefits of a veteran if the veteran waived military retired pay in order to get the VA disability benefits. If the veteran did waive a portion of it their military retired pay for that reason, they can only garnish the part of the veteran’s disability compensation that the veteran received in place of military retired pay. 

The other portion of the disability compensation cannot get garnished. Also, one cannot garnish the VA benefits at all if the veteran did not waive any military retired pay to receive VA benefits.

Factors the VA Uses to Determine How Much of the VA Disability Compensation Can Get Garnished

Determining the amount of the disability benefits that represent the retired military pay the veteran waived is only the first step in the process. The VA will analyze several additional factors to determine how much of the eligible VA disability compensation would be a reasonable garnishment. Usually, the VA only allows between 20 to 50% of a veteran’s VA disability benefits to get garnished. A higher amount would likely cause undue hardship to the veteran.

The VA will not garnish a veteran’s VA disability compensation for taxes, student loans, debts to creditors, or medical bills if the VA disability compensation is the veteran’s sole source of income. The VA will explore whether the veteran requires more income than the average person because of any special needs the veteran might have. 

The VA also examines extra expenses caused by special needs of the former spouse and children not in the custody of the veteran. The other income available to the veteran’s former spouse is an additional factor the VA will look into when determining the reasonableness of the garnishment request.

In some situations, the VA could refuse to enforce a garnishment order of VA disability benefits if the garnishment would cause the veteran undue financial hardship, or if:

  • The veteran’s former spouse was found guilty of infidelity by a state court.
  • The former spouse or child of the veteran has not filed for apportionment.
  • The ex-spouse of the veteran is living with another person with whom they have a romantic relationship.

The VA does not always review the criteria fully, sometimes resulting in improper garnishments. There are ways to demonstrate that you would meet an exception, precluding garnishment, especially if you can show it would be unreasonable or cause undue hardship. A Michigan VA Disability attorney can help you with your garnishment of VA disability benefits situation. You can contact our office today for legal assistance, we gladly offer a free consultation.

Veteran disability attorney sitting with veteran

2022 VA Disability Rates to Increase – What it Means for You

Congress increased VA disability compensation for 2022 by 5.9 percent, the same amount as the cost-of-living (COLA) increase for Social Security disability and retirement benefits. The purpose of COLA increases is to keep pace with the actual purchasing power of the American dollar. If Congress did not make these annual adjustments, your VA disability check would have less value over time. 

The cost-of-living adjustments only increase the amount of your VA disability pay. Congress does not reduce the amount of VA disability checks or Social Security benefits if the cost of living goes down. A Michigan Veteran Disability attorney can help you fight for the VA disability benefits you deserve. Here’s some more information about the 2022 VA disability rates to increase and what it means for you.

The New VA Disability Rates as of 2022

For the calendar year of 2022, a 100 percent disabled veteran with no spouse, children, or dependent parents will now receive VA disability benefits of $3,332.06 per month. If that same veteran has a dependent spouse, the 2022 monthly benefit will be $3,517.84. In that situation, the benefits can get increased by $170 a month for a spouse receiving Aid and Attendance.

A 100 percent disabled veteran with a dependent spouse and child can now receive $3,653.89 per month. Each additional child under the age of 18 in this situation can increase the monthly check by 92 dollars. Additional children over the age of 18 in a qualifying school program can increase the check by $198 per month.

An Overview of COLAs

Even when we are not officially in an inflationary period, the cost of living usually increases a little every year. Think of your groceries. A gallon of milk and a loaf of bread cost significantly more than they did 20 years ago. If your VA disability check never increased, over time, you could buy less and less with that check.

Every year, Congress determines how much the COLA will be for the following year. Congress votes in the fall on the COLA for the next year. The 2022 COLA increase actually went into effect on December 1, 2021.

There have only been three times in the last 20 years when there was no COLA increase: 2009, 2010, and 2015. For people receiving VA disability or Social Security checks in those years, their benefits remained the same until Congress voted the following year about the possibility of increases. The 2022 increase of 5.9 percent is the highest increase in the last 20 years, just edging out 2008, in which the increase was 5.8 percent. The lowest increase during that time was 0.3 percent in 2016.

You Might be Eligible for a Higher Disability Rating

Your disability rating is essential to the calculation of how much your monthly disability check will be. If your medical condition has worsened or you qualify under legislation that went into effect after your original VA disability rating, you might be eligible for a higher disability rating. 

A Michigan Veteran Disability attorney can talk to you and explore the possibility of going for a higher disability rating, which would increase your monthly VA disability check. Contact our office today for legal assistance, we offer a free consultation.

VA disability attorney and client

Documents a Veteran can Submit to Help Win their VA Disability Case

When you file for disability benefits from the U.S. Department of Veterans Affairs (VA), you will need to provide evidence that proves you qualify for that monthly check. The VA will obtain some of your records if you give them permission to do so, but it could be quicker if you send them the supporting documents directly.

Applying for VA disability benefits can be challenging and frustrating. Many people get denied on their first application. A Michigan VA Disability attorney can advocate for you and appeal an adverse decision or help you prepare your initial application.

Supporting Documents the VA Requires with Your Application for VA Disability Benefits

The VA requires specific documents from everyone who files for disability benefits. Regardless of the injury or illness for which you are seeking benefits, you will have to send in these items or authorize the VA to obtain them:

  • All medical evidence involving your injury or illness. For example, your hospital file, doctors’ records, imaging studies like x-rays or CAT scans, and results of other relevant medical tests.
  • Your DD214 or other documents concerning your separation from military service.
  • Records of your service treatment. 

Veterans who got discharged from the Army before 1961 or the Air Force before 1965 might have difficulty obtaining their records because of a massive fire at a record center in 1973. Your lawyer can help you file your claim if your records got destroyed in that event. 

Reasons You Might Need to Submit Evidence of Your Disability to the VA

There are five different situations in which you might need to submit a claim with supporting documentation to the VA proven your disability:

  1. Your original claim for disability benefits; in other words, the first time you file seeking benefits for a service-related injury or illness.
  2. An increased claim, which is a claim for a disability that got worse after the VA awarded you benefits.
  3. A new claim, in which you request additional benefits or other benefit requests in connection with your existing qualifying disability.
  4. A secondary service-related claim, which is a new disability claim that has a link to your existing service-related disability.
  5. A supplemental claim, in which you submit additional supporting documentation regarding a disability claim that the VA previously denied. 

The required evidence will depend on your type of claim and the facts of your situation. 

What Your Documents Need to Show to Win Your VA Disability Case

Your supporting documents will need to prove both of these factors to win your VA disability claim:

  • You experienced an illness, injury, or event during your military service that caused your disability. The illness, injury, or event must be service-connected.
  • You currently have a physical or mental disability. Put another way, something happened during your military service that caused damage to you physically or mentally. This damage prevents you from being gainfully employed or limits your ability to function and perform everyday tasks.

You do not have to battle the VA by yourself. A Michigan VA Disability attorney can handle your VA disability claim or appeal so that you can focus on your health and well-being. Contact our office today for legal assistance, we offer a free consultation.

Veteran meeting with attorney

Receiving VA Disability After Burn Pit Exposure

More than 3 million veterans could be eligible for Veterans Administration (VA) disability benefits if they developed a qualifying medical condition after being exposed to fumes from burn pits while serving in the Middle East. Veterans who served in that region as far back as the Gulf War could be eligible to collect compensation.

You will have to meet the VA’s criteria to receive disability benefits for a service-related medical condition. A Michigan VA Disability Attorney can answer your questions about eligibility for burn pit exposure compensation and advocate for you if the VA has denied your application for benefits.

Time Frame for Eligibility

The VA has expanded benefits eligibility to include veterans who served in:

  • The Southwest Asia theater of operations from August 2, 1990, to the present time, or
  • The Middle East, including Syria, Djibouti, Afghanistan, or Uzbekistan during the Persian Gulf War, beginning on September 19, 2001, to the present time.

Veterans whose claims are already pending will not have to do anything to update their applications until they receive the VA’s decision.

What Are Airborne Hazards as Related to Burn Pit Exposure?

The VA is especially concerned about military personnel who got exposed to smoke and fumes generated by open burn pits while on active duty. The government includes these things in their definition of airborne hazards during military service:

  • Open burn pit smoke and fumes
  • Oil well fire smoke
  • Dust, sand, and particulate matter
  • Fumes from fuel, aircraft exhaust, and other mechanical sources
  • General air pollution commonly present in some countries

The military disposed of trash and other waste material by using open-air burn pits. Most of these burn pits are now closed, and the Department of Defense plans to shut down all remaining burn pits.

What Got Disposed of in the Burn Pits?

The military burned many different types of waste in the open burn pits, including:

  • Food waste 
  • Trash composed of wood, rubber, and plastic
  • Cans made of aluminum and other metals
  • Human waste
  • Paint, chemicals, and medical waste
  • Petroleum and lubricant products
  • Munitions and unexploded ordinance

The smoke from burning these items could cause short-term medical conditions, like breathing difficulties, coughing, skin itching and rashes, or burning and irritation of the throat or eyes. Military personnel who had extended exposure to the burn pits or were closer to them could be at greater risk of developing longer-term health consequences.

Respiratory Health Conditions Associated with Burn Pit Exposure

The VA concluded that veterans exposed to burn pit smoke could develop chronic respiratory conditions within ten years after separation from service, including asthma, rhinitis, and sinusitis, including rhinosinusitis. There are many additional illnesses that might have a burn pit exposure connection, such as:

  • Cancer, including leukemia, carcinoma, lymphoma, medulloblastoma, and cancers of the bladder, bones, brain, prostate, intestines, kidneys, lungs, pharynx, larynx, pancreas, and other organs and tissues.
  • Hodgkin’s lymphoma and non-Hodgkin’s lymphoma
  • Many chronic respiratory conditions
  • Autoimmune disorders
  • Multiple sclerosis
  • Parkinson’s disease
  • Many other adverse medical conditions

If you or a loved one developed a medical condition within ten years of separating from service and served in the qualifying geographic locations, you might be eligible for VA disability benefits. A Michigan VA Disability Attorney can talk to you about eligibility for compensation for burn pit exposure. Get in touch with our office for legal assistance, we offer a free consultation.

female veteran and attorney

Steps to Take if You Disagree with Your VA Disability Rating

The way that the Veterans Administration (VA) handles appeals has changed considerably in the last few years. If it has been a while since you interacted with the VA on a claim, it will be in your interest to learn the new procedures. Either way, it’s important to consult with an experienced VA Appeals Attorney to not only understand your rights, but to know exactly how the new law changes can affect you.

The Veterans Appeals Improvement and Modernization Act (AMA) that went into effect in February 2019 impacted the steps to take if you disagree with your VA disability rating. A Michigan VA Disability Attorney can represent you through the appeals process and protect your rights.

Three Possible Appeal Paths

Many people who apply for disability benefits from the VA do not agree with the initial decision the VA reaches about their disability rating and the resulting amount of benefits they will receive. If you find yourself in the situation, the VA offers a new appeal process under the AMA. 

The AMA split the VA disability claim appeal process into three different lanes. Your three options are: 

  • Supplemental Claim
  • Higher-Level Review
  • Appeal to the Board of Veterans’ Appeals (Board)

You will need to select which of the three appeal paths you wish to take when you disagree with the decision of the VA about your application for disability benefits. 

Supplemental Claim

The supplemental claim option is for people who have new evidence that they did not submit when they filed their initial application for VA disability benefits. This evidence should be relevant to the claim, particularly information that could have caused a positive outcome in the initial decision.

Higher-Level Review

If you think the VA made a mistake in the initial decision, you might want to select the Higher-Level review (HLR) option. For example, a clerical error or some other simple mistake could get corrected at this level of review. The VA advises people that the first two options, Supplemental Claim and Higher-Level review, offer a quicker resolution than the third option, which is an Appeal to the Board of Veterans’ Appeals (Board). It’s important to note that an HLR can only be filed once in the life of a claim. 

Appeal to the Board of Veterans’ Appeals (Board)

An Appeal to the Board of Veterans’ Appeals (Board) is the most formal of the three options. Not surprisingly, a Board appeal takes the longest time of the three options. If you select a Board appeal, you will need to choose among three more paths, Direct Review, Evidence Submission, and Hearing with a Veterans Law Judge (VLJ).

Board Appeal – Three More Choices

People who disagree with the initial decision from the VA on their disability claim and select a Board appeal must then choose one of these three options:

  • Direct Review. If you think the VA misinterpreted the facts of your case or the law, you might want to select this path, which has the shortest timeline of Board appeals. This path does not involve submitting additional evidence to the Board.
  • Evidence Submission. You can submit additional evidence to the Board using this path option. With this option, you are not questioning whether the VA misinterpreted what you previously submitted. You are merely supplementing the evidence for the Board to consider when it reviews your case on appeal.
  • If you wish to have a Hearing with a Veterans Law Judge (VLJ), you will need to choose the Hearing path, which takes the longest of the three Board appeal options. Not surprisingly, this option also takes the longest of all possible options under the AMA’s new procedures.

Each of these VA appeal options has strict rules and deadlines. If you miss a deadline, you could lose the right to appeal the VA’s initial decision on your disability claim. With so much at stake, it would be a smart decision to work with a Michigan VA Disability Attorney if you are unhappy with the VA’s initial decision on your request for disability benefits. Get in touch with our office today for legal assistance, we offer a free consultation.

VA disability attorney and client

5 Common Errors in VA Decisions that Veterans Can Appeal

If the Veterans Administration (VA) denied your claim for VA benefits or awarded you too low an amount, you might be able to appeal that adverse decision. Sometimes, the VA did not follow its own procedures or made a mistake that led to the unfair result.

A Michigan VA Disability Attorney can take a look at your situation and let you know if you have a strong appeal. Here are five common errors in VA decisions that veterans can appeal:

The VA Did Not Explain the Facts or Law on Which They Based the Adverse Decision

If you wish to appeal an adverse decision from the VA, you must decide which appeal avenue is best for you under the law, and file the appeal on the proper forms. The VA must discuss the facts and identify the law on which they based their adverse decision. If you received a letter that merely stated that the VA denied your application for benefits, you might have grounds for appeal.

The VA Did Not Offer a Medical Evaluation or Opinion About a Claim for a Service-Related Disability

If there is not sufficient medical evidence in your file for the VA to form an opinion as to whether the disability is service-related, the VA might have an obligation to provide a medical examination for you. The VA’s duty to provide a medical examination or opinion about whether your disability is connected to your military service exists when all three of these factors are present:

  1. You can show that you have a current disability.
  2. You can prove that you had an in-service injury or event.
  3. There is evidence that the event that happened during your military service might have caused your current disability.

If you can meet all three of the above criteria, and there is not sufficient medical evidence in your file to make a determination about service connection to your current disability, the VA is under an obligation to provide a medical evaluation and opinion for you.

The VA Health Care Provider or Explanation of the Medical Opinion Was Not Sufficient

The VA cannot use just anyone to perform the medical examination and form an opinion as to whether your current disability has a service connection. The doctor must have a sound knowledge base about your type of disability and explain in detail the reasons for his or her opinion about service connection.

The VA Did Not Get Your Medical Records

The VA does not require veterans to chase down all of the medical records that are relevant to their claim for disability benefits. If you gave the VA sufficient information about where you got treated and when, the VA has a duty to obtain medical records that are relevant to your claim. If the VA did not bother to gather the necessary medical records so that they could fully and fairly evaluate your condition, you could appeal a denial of benefits.

The VA Denied Your Claim for Inadequate Evidence Without Proper Notice of Required Proof

If you filed your application for VA benefits in the last 20 years, the VA has certain duties they did not have before that time. One of these requirements is that the VA has to notify you what information you must submit as proof that your medical condition is service-related. The VA will gather some items, like medical records, on your behalf.

If the VA did not tell you which items you have to submit that they will not obtain for you, and the lack of that evidence adversely affected your benefits claim, you may have a strong case for an appeal. The missing evidence must be relevant to your claim. Also, you must show that the missing evidence exists and would have helped your claim.

You will want to talk with a Michigan VA disability Attorney about whether you have any of the listed arguments, or others, to appeal your claim for VA disability benefits. Get in touch with our office today for a free consultation.

Veteran speaking with physician

Veterans Exposed to Particulate Matter – Maximum VA Disability Benefits

The United States Department of Veterans Affairs (VA) has a less than stellar track record of addressing significant health concerns related to military service. For example, many Vietnam-era veterans had to wait for decades to get access to VA benefits and appropriate medical treatment for medical conditions presumed to be related to exposure to Agent Orange during their military service.

The Biden administration does not want to subject military veterans to the same unacceptable treatment for the current health concern about burn pits and other military chemical exposures during the Gulf War. The White House and the VA are moving forward to improve the timeliness of access to services and benefits for these people who served our country. A Michigan VA disability attorney could help veterans exposed to particulate matter seeking maximum VA disability benefits.

Health Conditions That Are the Focus of the Interim Final Rule

The VA enacted an interim final rule, effective August 5, 2021, entitled “Presumptive Service Connection for Respiratory Conditions Due to Exposure to Particulate Matter.” This rule established a presumptive service connection for these three chronic respiratory conditions:

  •       Asthma
  •       Rhinitis
  •       Sinusitis (including rhinosinusitis)

Veterans with any of these diagnoses would also need to have presumed exposure to fine particulate matter during their military service.

The Geographic and Date Requirements of the Rule

Current and future veterans of the Gulf War, also called the Persian Gulf War, can get immediate healthcare, services, and benefits if they have one of these chronic respiratory health conditions and served in the Southwest Asia theater of operations. The start date of the Gulf War was August 1990. As of the date of the interim final rule, neither Congress nor the President has established an official end date for the Gulf War.

The rule also applies to veterans who served in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001, during the Gulf War. Current and future veterans who served in either of the qualifying theaters of operations can include those on active military, naval, or air service.

Purpose of the Rule

Typically, a veteran applying for benefits must prove service connection for the medical condition and exposure to the chemical or event that caused or contributed to the harm. The rule amends the previous VA adjudication regulations. Now, a current or former military service member who falls within the geographic and date requirements will not have to meet such a high evidentiary burden. The VA will presume that the service member or veteran had exposure to fine particulate matter and that there is a service connection for asthma, rhinitis, and sinusitis. 

Maximum VA Disability Benefits

The VA assesses disability ratings in increments of 10 percent, beginning with 10 percent and going up to 100 percent. Beginning December 1, 2021, the VA will use the 2022 veterans disability compensation rates to calculate an individual veteran’s monthly payment amount.

A veteran with a disability rating of 10% or 20% will not receive a higher rate even if they have a dependent spouse, child, or parent. A veteran with a 100% disability rating can receive this amount of compensation per month:

  •       $3,332.06 for a veteran with no dependents
  •       $3,517.84 for a veteran with a spouse but no dependent parents or children
  •       $3,653.89 for a veteran with one dependent spouse and child
  •       $3,666.94 for a veteran with a spouse and one dependent parent but no children

The maximum VA disability monthly benefit for 2022 is $3,952.09 for a veteran with a 100% disability rating, one dependent child, a spouse, and two dependent parents. The VA can add on amounts for additional qualifying children and for a spouse receiving Aid and Attendance. However, there may be additional compensation based on additional criteria and benefits available. 

The VA has expressed concern that many veterans and even some VA claims adjudicators might not have up-to-date awareness of these policy changes. Your VA disability claim might get denied or never get filed for these reasons. A Michigan VA disability attorney can help you pursue the maximum amount of VA disability benefits for which you are eligible. Get in touch with our office today for legal help, we offer a free consultation and disability is all we do. 

American Amputee Soldier On Road

Common Veteran Service-Connected Disabilities

A significant portion of the veteran population experiences service-related health issues that they might mistakenly assume is merely the result of aging. Knowing some of the more common veteran service-connected disabilities could be helpful when preparing a claim for military disability benefits. 

A Michigan SSDI attorney could talk to you and help you explore military and civilian disability benefits. It could make a substantial financial difference to your monthly benefits check if you include all of your possible service-connected physical or mental conditions in your application.

How Does the Veterans Administration (VA) Treat Toxic Chemical Exposure?

The VA now provides disability benefits to veterans who have certain chronic medical conditions and had known chemical exposure during their period of service. In some of these situations, the veteran does not have to prove that the chemical exposure caused the illness. The veteran might be able to collect benefits if they prove that they have the medical condition and that they had the chemical exposure.

Agent Orange exposure and Gulf War illnesses are two of the more recent examples. Veterans also need to be aware that many of them could have had exposure to asbestos or radiation during their service.

Combat-Related Injuries

A service member who got wounded when serving in a combat zone could have ongoing challenges because of those injuries. Some examples could include physical conditions affecting the veteran’s back, hips, knees, and feet, for example, but could also include mental impairments such as depression and PTSD. The VA will evaluate a wounded veteran and use a rating scale process to assign a disability percentage rating for purposes of calculating the benefits.

Post-Traumatic Stress Disorder (PTSD)

A veteran could develop Post-Traumatic Stress Disorder (PTSD) after suffering a severe injury like an attack from an improvised explosive device (IED) or from observing devastating wounds and deaths. PTSD can affect an individual’s ability to maintain gainful employment, experience healthy relationships, and enjoy life.

Neck, Back, Knee, Hip, and Feet Problems

Because many service members engage in distance hiking, running, or walking with loaded backpacks or have to carry heavy objects during their job assignments, training, or required exercise, back, neck, knee, hip, and feet issues are quite common and could include other conditions as well. A young person on active duty might be able to shrug off the discomfort, but as the veteran ages, the impact of those activities can cause chronic impairment.

Disfigurement

Life in the military is rough on the body, to say the least, with injuries being rather commonplace. From minor training wounds to combat scars, extensive scar tissue can be disfiguring. Also, scar tissue can cause loss of range of motion, adhesions, and chronic discomfort.

Amputation and Limb Loss

Many of the individuals one sees with a prosthetic arm or leg lost their limb in a combat injury like an explosion or in another kind of service-connected incident. Amputation and limb loss can receive a high disability rating from the VA.

Migraines

Many veterans report that they suffer from headaches and even migraines that can be quite debilitating when they strike. This neurological condition can affect a person’s ability to make a living and enjoy life and can result in a high rating depending on the nature and severity of the veteran’s headaches and/or migraines. 

Hearing Loss and Tinnitus

What you might think is age-related hearing loss might actually be the result of damage to your hearing from military service that commonly progresses through the years becoming more noticeable as you age. Frequent exposure to things like gunfire, explosives, and jet engines can cause a person to experience hearing loss or develop tinnitus, a ringing in the ears. 

Depression, Anxiety, and Other Mental Health Challenges

It is common for veterans to experience sleep disorders, restlessness, elevated anxiety, a feeling of sadness or hopelessness, and other symptoms that can impair a person’s ability to function. Some veterans can get a full disability rating (100%) for mental health issues. 

If you are a veteran struggling with physical and/or mental conditions, you will want to talk to a Michigan VA disability attorney about your service-connected disabilities. Our attorneys understand what documents and forms are needed to help you win the highest rating under the law that you deserve. Contact our office today, we offer a free consultation and disability is all we do.

woman with a service-connected

Steps to Establishing a Service-Connected Condition

Getting disability benefits from the military can be challenging, so it helps to know the process. The Veterans Administration (VA) can pay monthly benefits to eligible veterans who have a disability from a service-related condition. The condition must be an injury or illness that happened while serving in the military or an existing illness or injury that became worse because of military service. 

The VA can pay benefits for physical conditions or for mental health conditions like post-traumatic stress disorder (PTSD) that occurred before, during, or after a person’s time in the military. A VA disability attorney can advocate for you and help you navigate through the military regulations.

Here are the steps to establishing a service-related condition:

Military Service Requirement

Your condition must have developed before, during, or after your military service. The first step is to provide evidence that you fall into at least one of these categories:

  • You served on active duty with the military, or
  • You were on active duty for training, or
  • You served on inactive duty training.

Even if you meet the military service requirement, you could lose eligibility for VA disability compensation if you did not receive an honorable discharge. Individuals with dishonorable, bad conduct, or “other than honorable” discharges might not get their disability benefits applications approved. In this situation, you might consider pursuing a discharge upgrade to restore your eligibility for disability benefits.

Disability Rating 

The VA requires a disability rating to calculate the amount of your benefits. The military assigns you a disability rating based on the severity of your disability. The VA uses information from your VA claim exam, evidence that you submit, and data the VA obtains from other sources to determine your disability rating.

Unlike Social Security disability programs, like SSDI and SSI, the VA does not require you to be 100 percent disabled to get VA disability benefits. If you do not qualify for SSDI or SSI and you have a service-related condition, you might qualify for VA disability benefits.

Connecting Your Physical or Mental Health Condition to Your Military Service

After you establish that you served in the military and you have a disability rating, you have to show the VA that your condition was related to serving in the military. In these situations, the VA can make a presumption of disability:

  • You developed a long-lasting (chronic) illness within one year after getting your discharge from the military, or
  • You had contact with certain toxic chemicals (like Agent Orange) or other hazardous materials (like asbestos) during your military service and developed an illness from that substance, or
  • You were a prisoner of war (POW) and developed an illness as a result.

You would file an in-service disability claim for a service-connected illness or injury that happened during your military service. If you had a pre-existing illness or an injury when you joined the military, and that condition got worse because of your military service, you could submit a pre-service disability claim. Conditions that appear after your military service concludes can be post-service disability claims. 

Types of Military Service Connections

How you prove the nexus between your military service and your disability will depend on which of these five categories match your fact pattern:

  • Direct service connection. If you got an injury or illness during your military service, the VA will evaluate your service medical records and service records that show when and how you got sick or hurt, and any other relevant records that show that the condition is chronic or continuing.
  • Service connection through aggravation. This type of connection applies to situations in which military service worsened the pre-existing condition. Your medical examination when entering service should note your pre-existing injuries or illnesses. You will have to show that your military service made your condition worsen faster than it would have otherwise.
  • Presumptive service connection. There is no requirement that you prove that military service caused your condition in certain situations like Agent Orange exposure or prisoner of war scenarios. 
  • Secondary service connection. A direct service connection can, over time, cause other problems. Your doctor will need to say that the direct service illness or injury caused the secondary condition.
  • Injury caused by VA healthcare connection. If the carelessness of a VA healthcare worker or facility caused an injury, illness, or death, the veteran or surviving spouse or another qualifying dependent has to prove that the negligence caused the adverse outcome. 

A VA disability attorney can handle your VA disability claim and help you pursue the benefits you deserve. Get in touch with our office today.

blue water navy act

Understanding the Blue Water Navy Vietnam Veterans Act of 2019

As of January 1, 2020, navy veterans who served in the offshore waters of Vietnam between January 9, 1961, and May 7, 1975, can be eligible for benefits if they developed certain herbicide exposure-related illnesses afterward. Before the Blue Water Navy Vietnam Veterans Act of 2019 (Blue Water Act), the Veterans Administration (VA) only granted benefits requests to veterans who became ill after exposure to Agent Orange herbicides on the land or “brown water.” 

“Brown water” refers to rivers and other inland bodies of water. The Blue Water Act extends disability benefits coverage to veterans who served in “blue water,” which the Act defines as offshore waters within 12 nautical miles of the Republic of Vietnam and some other areas. A Blue Water Navy veterans attorney can walk you through the eligibility requirements and help you go after the benefits you deserve.

An Overview of the Blue Water Navy Vietnam Veterans Act of 2019

The United States military used strong herbicides to quickly kill plants in areas with thick vegetation where there were military operations. Agent Orange was the primary tactical weedkiller the armed forces used to clear these overgrown areas. After discovering that Agent Orange could cause severe illnesses and death to servicemembers exposed to these chemicals, the Veterans Administration (VA) began paying disability benefits to qualified veterans.

The original Agent Orange benefits program provided disability benefits to people to military members who served “in the Republic of Vietnam.” Now, the Blue Water Act presumes Agent Orange exposure for members of the military who served on land, on inland waterways, or on blue water in or within a certain distance of Vietnam and Cambodia or on specific military installations in Thailand. Some veterans who served in the Korean DMZ can also get Agent Orange VA disability benefits.

Conditions Covered by the Blue Water Navy Vietnam Veterans Act of 2019

Under the Blue Water Act, people who fall under the protection of the Act and have any of these conditions do not have to prove that they had exposure to Agent Orange:

  • Amyloid light-chain (AL) amyloidosis 
  • Chloracne, or other acneiform diseases consistent with chloracne 
  • All Chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia) 
  • Diabetes mellitus, Type 2 
  • Lymphoma, Hodgkin’s, formerly known as Hodgkin’s disease 
  • Multiple myeloma 
  • Lymphoma, Non-Hodgkin’s 
  • Peripheral neuropathy, early-onset 
  • Porphyria cutanea tarda 
  • Prostate Cancer 
  • Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) 
  • Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma) 
  • Ischemic heart disease 
  • Parkinson’s disease 

Covered veterans do not have to prove that the military-related herbicide exposure caused their illness because the Veterans Administration will presume that Agent Orange was the culprit. 

If the VA denied your previous benefits request, you have a disease on the presumptive list, and you fall under the coverage of the Blue Water Act, you can resubmit your claim. If a veteran dies during the claims process, a living dependent spouse or child can ask to get substituted as the claimant. The VA can award dependency indemnity compensation (DIC) benefits under the Act.

You can consult with a Blue Water Navy attorney to find out if you are eligible for these and other VA disability benefits. Get in touch with our office today.