In addition to representing veterans in obtaining disability benefits from the Social Security Administration, I also represent military veterans in obtaining disability benefits from the Department of Veterans Affairs (VA). In fact, some veterans are eligible to receive both service-connected compensation from the VA and Social Security disability benefits (SSDI) – without any setoff!
There are two main disability programs through the VA.
If there is a service-connected disability, whether physical or psychological, a veteran may be eligible for compensation – even if the disability is only partial. He or she is entitled to receive benefits regardless of financial considerations. A veteran must have (a) a discharge other than dishonorable and (b) a current diagnosis of the alleged service-connected disability. In addition, the veteran must prove (c) either an incident in service that caused the disability or the origin of the disability while in service and (d) a medical connection between the current disability and the incident or origin in service. A service-connected disability, whether injury or disease, does not have to be incurred during combat. As long as the disability originated while the veteran was in service, it is service-connected. For example, if a person was assaulted while in service or if there is evidence that an illness began while a veteran was on active duty, he or she can make a claim for service-connected compensation.
Another VA program pays benefits to disabled veterans whose disability is not service connected. These veterans may be entitled to a non-service-connected pension. In order to receive the pension, the veteran must have served on active duty during a period of war, there must be a total and permanent disability (but the disability does not have to be service-connected) and, like SSI, the pension is income scaled, which means that the veteran may or may not qualify for both a VA pension and Social Security disability.
There are some legislative presumptions that help veterans win their cases. For example, if a veteran who served in Vietnam during the war has a diagnosis of diabetes mellitus to a 10% or more degree of disability, there is a presumption that it is service-connected. The VA determines the percentage of disability, but it must be at least 10% for this statutory presumption to apply.
Some disabilities might be “secondarily” service-connected. For example, if a veteran has service-connected PTSD and if through medical records he or she can prove that depression resulted from the effects of the PTSD, the veteran can make a claim for the resulting depression as well.
If there is medical malpractice at a VA Medical Center, a veteran – or if applicable, a surviving spouse – can file for compensation either under the Federal Tort Claims Act (FTCA) or under 38 USCS §1151 from the Veterans Administration. The FTCA case is a lawsuit that is filed in court, and it has certain filing requirements and deadlines. If a veteran or spouse has a recovery for medical malpractice under the FTCA, there is a setoff against any 1151 claim recovery. The 1151 claims are efforts to obtain monthly compensation from the VA – the consequences of medical negligence are considered service-connected disabilities. There are no time limits for filing 1151 claims, which means that if the statute of limitations has expired on an FTCA case, the veteran or surviving spouse may still file an 1151 claim with the VA.
Incarcerated veterans may receive some service-connected compensation while they are in prison, and full benefits may be resumed when the veteran is released from incarceration. Therefore, qualified incarcerated veterans should seek initial service-connected compensation or an increase in rating for previously-awarded benefits. The families of incarcerated veterans may be entitled to receive some or all of the withheld monthly benefits during the period of incarceration. It is important that family members of incarcerated veterans apply for this important benefit as soon as possible.
In the courts, generally there is one chance to file a case, and if the case is lost, another case cannot be filed concerning the same subject matter. For example, if one loses an automobile or medical malpractice case after a trial in court, the theory of res judicata prevents the victim from filing the same claim again. Res judicata does not apply to veterans’ claims. Even if a veteran’s claim for service-connected compensation or 1151 benefits was previously denied, he or she can file a new claim for the same benefits at any time, if the veteran can submit “new and material evidence.”
If a military veteran’s claim is denied by the Board of Veterans’ Appeals, the veteran has 120 days to file an appeal to the U.S. Court of Appeals for Veterans Claims. I represent veterans in this Court as well as in cases that are before either a Regional Office of the Board of Veterans’ Appeals. My fees are charged on a contingent fee basis – the veteran pays me a fee only if I obtain some benefits for him or her. If the veteran does not win benefits, he or she does not owe me any money. My fees are 20% of any back-benefits recovered, and if I recover fees at the court level of proceedings, the fees associated with my work in court are paid by the government through the Equal Access to Justice Act (EAJA) rather than paid by the veteran.
I am able to represent veterans in their claims with the VA in all states and territories of the U.S., not just in the Washington, DC area. I have represented veterans from Florida to New England and from Maryland to Oregon. You do not have to come to my office for me to represent you.
I served in the Army from 1961-1963 (see photo). I am a Sustaining Member of the National Organization of Veterans' Advocates. I am also a member of the Court of Appeals for Veterans Claims Bar Association and the Federal Bar Association, Veterans Law Section. I am admitted to practice before the U.S. Court of Appeals for Veterans Claims, the U.S. Court of Appeals for the Federal Circuit, and the United States Supreme Court.
If your claim has been denied by a Regional Office or the Board of Veterans’ Appeals, you should call my office at 1-888-263-2630. We will ask you to fax a copy of your denial to me at 1-301-670-6993, along with a cover sheet stating your name, address, and phone number. If you live near any of my offices, we may schedule you to come in for a free office appointment. If you do not live in the area, we will schedule a free telephone appointment for you. There is never a charge for reviewing your case.
In addition to representing many veterans with psychiatric disabilities such as Post Traumatic Stress Disorder, Bipolar Disorder, and depression, I have also helped veterans with disabilities such as diabetes, cancer, COPD, frostbite, orthopedic injuries and diseases, neurological diseases, heart conditions, gunshot wounds, and Gulf War Syndrome. In addition to representing military veterans in their VA claims, I have represented veterans from Maryland, West Virginia, Pennsylvania and Washington, D.C. in their Social Security disability claims.
Social Security disability, veterans disability, long-term disability, & personal injury lawyer
