SOTS Annual Training 2012

SOTS Annual Training 2012 Fully Developed Claims Thomas Meadows TDVA Training Officer 615-441-3384 or tom.meadows@tn.gov

DEVELOPMENT AND SECONDARY ISSUES Establishing a disability as service connected condition

ESTABLISHING SERVICE CONNECTION • There are five ways of establishing that a disability is service-connected: • Direct: Service medical records show that the condition claimed was diagnosed during military service, and condition continues to affect the individual economic capacity. (38 CFR 3.304) • Aggravation: By demonstrating that a condition that existed prior to military service was aggravated beyond normal course – recently the VA has determined that a base be established.(38 CFR 3.306)

Presumptive Illness: Means the veteran has contracted a condition/disease during his/her military service. (38 CFR 3.307 & 3.309) • Secondary: By demonstrating that a condition is caused or approximately the result of, or linked to an existing SC.(38 CFR 3.310) • Injury as a result of treatment: Where disease, injury, death or the aggravation of an existing disease or injury occurs as a result of having submitted to examination, medical or surgical treatment, or hospitalization in the pursuit of Vocational Rehabilitation. (38 CFR 3.800)

MORE ON COMPENSATION • If a vet gets a disease or injury and it resolves without residuals, it is considered acute/transitory and service connection cannot be established. (38 CFR 3.4) • In the line of duty & Willful misconduct: An injury or disease acquired as the result of the veterans own willful misconduct. (38 CFR 3.1(m)(n)

WHAT TYPE OF EVIDENCE WILL YOU NEED BASED ON THE FOLLOWING • A vet reports to you while on active duty he hurt his back, and both knees. He served with the 101st ABN; made many jumps but rarely sought medical attention or complained. • What type of evidence will you need to submit to prove an incurred condition?

AGGRAVATED & PRESUMPTIVE CONDITIONS • While playing on his units baseball team during active duty, the veteran re-injured a pre-existing condition (ankle injury). The ankle today remains painful and effects locomotion. What type of evidence will you need to secure? (38 CFR 3.303 & 3.306) • L. Berman comes to you and indicates that he has diabetes and he is a Vietnam era veteran. What evidence is needed to prove Berman’s case? 38 CFR 3.309(e)

SECONDARY DISEASE / CONDITION • A veteran was treated in the service for a right knee condition. After discharge he was granted 10% for impairment to his knee. Later on, he was crossing a street and was forced to run in order to avoid being hit by a drunk driver. His SC knee gave out and he fell and injured his other knee. What do you have to prove in order to SC the other knee? (38 CFR 3.310)

CLAIMS DEVELOPMENT • The granting of veteran’s benefits is based on complying with congressional laws and regulations that are enforced by the VA. The VA must provide assistance to the veteran in the preparation and presentation of their claim. • As a veteran’s service officer(VSO) acting on behalf of an accredited organization chartered by Congress and recognized by the VA for claims representation, you have assumed the responsibility for providing direct assistance to the veterans, their dependents and survivors for any VA benefit.

CLAIMS DEVELOPMENT (CONT) • One of the most important responsibilities of a VSO is to ensure that the claim receives due process under the laws and regulations of the VA. Once a POA is signed, there exists a legal obligation to ensure that all claims and evidence are properly and timely filed. • The claims process requires specific actions by all parties. The claimant must ask for benefits and supply information/evidence and participate at all stages. The VSO is responsible for informing the claimant what forms and documents are required to be submitted to VA and submit claims timely. Also, that VA follows its due process procedure and Duty to Inform and Duty to Assist.

CLAIMS DEVELOPMENT (CONT) • The DVA is responsible for processing the claim in a timely manner and informing the claimant and the VSO of the results of his or her request. • Remember, you must file a Fully Developed Claim whenever possible.

NON- FEDERAL & FEDERAL RECORDS • VA shall make reasonable efforts to assist claimant. Submit initial request with 60 days to respond and one follow up with another 30 days to respond. • VA will continue attempts until VA receives a response form the custodian of record that the records do not exist.

QUESTION 1 • SMR’s for a KS vet show that he sustained a back strain during Active Duty in 1951, with one follow up treatment for low back pain. Vet was discharged in 1954; on separation report condition was noted as resolved. Private medical evidence dated 1981 indicates lumbosacral strain while lifting boxes at work. In 2000 a L4-5 discectomy is performed. Current medical evidence shows postoperative residuals of discectomy with DDD.

QUESTION 2 • A recently discharged vet from the Army comes to see you. He is complaining of left hip pain. His DD 214 shows Airborne Ranger. He states he had multiple (jump record shows 20 jumps) parachute jumps. He claims on 3 jumps he landed awkwardly, injuring his hip but did not seek medical treatment. He used over the counter medications for continued pain. He submits spouses statement which indicates he complained in service to her and presently stopped doing yard work. SMR’s are silent. Examine/medical opinion?

QUESTION 3 • SMR’s of a Vietnam era veteran show complaint of gastric distress and gastrointestinal complaints. Treated with Tagamet. SMR indicated condition resolved. Post service medical records contain several entries showing treatment for various gastrointestinal complaints over the past 20 years; with a current diagnosis of GERD. The vet wants you to file for SC for gastro condition. What would you say?

PROXIMATE RESULTS, SECONDARY CONDITIONS • Under 38 CFR 3.310, disabilities due to or the result of a service connected disease or injury shall be service connected. When the condition is SC, the secondary condition shall be considered a part of the original condition. In this situation you must investigate the differences between conditions caused by diseases and ones caused by injury. Lets look at a couple of examples.

FULLY DEVELOPED CLAIMS • The Fully Developed Claims (FDC) Program is the fastest way of getting your compensation or pension claim processed. • Participation in the FDC Program allows for faster claims processing while preserving great quality of service and your right to appeal a decision.

Claim must be a rating related claim for live compensation • Original • Secondary • Increased service connected claims • Application form 21-526 EZ to include Fully Developed Claim Certification • VA forms available at www.va.gov/vaforms or on Vetra/Spec • You must submit all relevant private medical records for the disabilities you are claiming.

You must identify any treatment records from a Federal Facility such as VA Medical Center, Outpatient Clinic, or Community Based Outpatient Clinic (CBOC) • For Guard and Reserve members you must submit any and all Service, Treatment, and Personnel Records in the custody of your Unit(s). • Medical can be in the form of letters from Physicians, Hospital records, or Disability Benefit Questionnaires. (DBQ’S) Located in Vetra/ Spec or VA site: http://benefits.va.gov/TRANSFORMATION/disabilityexams/

If claiming dependents, must complete VA form 21-686c • The evidence must show injury in service, or a disease that began in service or was aggravated by service. • You must be diagnosed with a current physical or mental disability related to service. • A relationship or NEXUS must be established between claimed disabilities and an injury, disease, symptoms, or event in military service.

PRESUMPTIVES 3.309: Example Agent orange, POW, and Radiation. • What if you don’t have all the evidence? • File an informal Claim Letter or a 21-4138; must clearly identify the disability being claimed: • “I intend to apply for compensation benefits for the following disabilities: __________________________________ under the FDC Program. This statement is to preserve my effective date for entitlement to benefits. I am in the process of assembling my claim package for submission”.

NSC PENSION • Criteria: • NSC Pension Claims • 21-527EZ Original Claims • Fully Developed Claim Certification Form must be completed. • All necessary income and net worth in formation must be submitted • All private medical must be submitted. • Need for DBQ(see compensation instructions)

Names and addresses of Federal facilities where you receive treatment to include dates of treatment • 21 2680 If Claiming Aid and Attendance 21 0779 If in a Nursing Home • Guard and Reserve records • Dependents 21-686c • What the evidence must show: • 90 Days service; one of Wartime • 24 Month Active Duty Requirement 9-8-80 Enlisted 10-16-81 Officers

Permanent and Total Disability Single 60% or Combined 70% one disability being 40% or more. • Over 65 • Patient in a Nursing Home for long term care • Receiving Disability SS or SSI • Exception 3.321 B • Your Net Worth and Income must be within limits.

Handouts #1, #2 & #3: Fully Developed Claims(Double click to open)

SOTS Annual Training 2012