Monday, April 29, 2013

Trafter v. Shinseki (evidence required to obtain medical opinion in 1151 claims)

Trafter v. Shinseki, docket no. 10-3605 (Vet. App. Apr. 29, 2013)

The evidence needed to obtain a medical opinion in section 1151 claims is the same as that needed to obtain a medical opinion in regular disability claims – meaning that the evidence only needs to indicate that the claimant’s disability or symptoms may be associated with the VA hospital care, medical or surgical treatment, or examination provided by a VA employee or in a VA facility or as part of a VA rehabilitation program, i.e., Compensated Work Therapy.

Thursday, April 11, 2013

1961 Operation Ranch Hand and Agent Orange

Vietnam veterans who participated in Operation Ranch Hand in 1961 can establish direct exposure to Agent Orange with adequate records from their military personnel file. This would include records showing temporary duty assignments in Southeast Asia or award of the Armed Forces Expeditionary Medal, which was issued for Vietnam service prior to the Vietnam Service Medal.

Carpal Tunnel Syndrome is a Chronic Condition under 38 C.F.R. 3.309(a)

Carpal tunnel syndrome is an “organic disease of the nervous system” and, therefore, is a chronic condition that is subject to service connection via legal presumption under 38 C.F.R. § 3.309(a). Veterans who are diagnosed with carpal tunnel syndrome within a year of discharge from service may be eligible for service connection without having to provide medical evidence of a link between their condition and their service.

VA's New Claims Processing Initiative Eliminates the Need for Medical Exam

VA announced a new initiative in processing disability claims called Acceptable Clinical Evidence (ACE), which will allow VA to assess a veteran’s claim for benefits without conducting an in-person medical examination, as long as there is sufficient medical evidence in the record to decide the claim. Under this new process, a VA physician will complete a questionnaire based on review of the medical evidence in the veteran’s file – and the regional office will make its decision based on that review. Several veterans’ advocates (myself included) are concerned that this may not always be in the veteran’s best interest. Veterans who file claims for disability compensation benefits and feel that they need an in-person medical examination, should request one in writing to the RO.

VA Policy on Whether Room and Board Expenses at Senior Residential Facilities Qualify as Unreimbursed Medical Expenses for Pension Purposes

In Fast Letter 12-23, VA clarified its policy regarding whether the cost of room and board at senior or independent living facilities qualifies as an unreimbursed medical expense (UME) that can be deducted from income for pension purposes. VA policy is that the cost of room and board at such facilities is only a UME when the facility provides “custodial care” – which involves assisting with activities of daily living (ADLs). VA defines ADLs as “basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and suing the toilet.” 38 C.F.R. § 4.124a note 3. A facility provides custodial care for VA purposes if it assists a person with two or more ADLs. The cost for room and board at these types of facilities can also qualify as a UME if a person’s physician states in writing that the person residing in such facility requires (and contracts for) custodial care from a third-party provider. Costs for assistance with meal preparation, housework, shopping, laundry, etc., are not UMEs for pension purposes because these are not medical or nursing services. VA will, however, deduct these costs from the individual’s income when that person receives pension at the “aid and attendance” or “housebound” rate, or a physician certifies that the person needs to be in a protected environment, AND the facility also provides medical services or assistance with ADLs to the individual.

Monday, April 8, 2013

Vazquez-Claudio v. Shinseki (criteria for establishing service connection for mental condition)

      Vazquez-Claudio v. Shinseki, docket no. 2012-7114 (Fed. Cir. Apr. 8, 2013) 

A veteran with a claim for service connection for a mental condition may only qualify for a disability rating under 38 C.F.R. § 4.130 (the regulation regarding disability ratings for mental conditions) “by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration” and by showing that those symptoms result in occupational and social impairment in a number of areas listed in the regulation, “such as work, school, family relations, judgment, thinking, or mood.” A claimant cannot satisfy a particular rating by only showing that he/she has occupational and social impairment in most of the listed areas.