By Jim Fausone
Veteran Disability Lawyer

We have written on this topic before.  The VA has a challenge keeping personal information confidential.  We have seen VA post personal information on web sites. The VA has had hackers get into its computers.  The more typical breach of security is very routine – misdirected mail. This happens at all levels.  We have had the wrong veterans mail show up in court files, claim files and RO mail.  A Fort Myers man had someone’s personal information show up in his mailbox.  The man was not a veteran and he contacted VA and NBC news.

VA representative said the errors in processing or simply outdated information are often reasons why letters are sent to the wrong address.  “If they move out, the first thing they should do is let the VA know so we can ensure your items are mailed correctly,” VA said. “Protecting veterans information is so important to the VA, its something we take very seriously.”  The VA says these types of mishaps are rare and if you receive a letter not addresses to you then you should return it to sender or contact the local VA.

To watch the NBC video on this story:  http://www.nbc-2.com/story/16612627/va-sends-personl-info-to-wrong-mailbox

By Chandra Briggs

In 1982, The Vietnam Veterans Memorial Fund (VVMF) completed construction of The Wall and now the VVMF is working again to complete another mission by building The Education Center. We’ve been asked to help create awareness and to get the word out about the National Call for Photos campaign.  The VVMF is trying to collect a photograph for each of the more than 58,000 men and women whose names are inscribed on The Wall. The VVMF is hoping the pictures that are collected will help to educate our children and grandchildren about the Vietnam War. The pictures will be used to help bring The Wall to life for all future generations by telling the story of the Vietnam War through the personal stories of those whose names appear on it.

 Please visit http://www.vvmf.org/pafwan to see the many ways you can help.

With ground-breaking for the Education Center set for November 11, 2012; funds are still needed for completion.  You can donate by texting WALL to 20222 to make a $10 donation to VVMF.

To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com

by Kristina Derro
Veteran Disability Lawyer

A recent order by the U.S. Court of Appeals for Veterans Claims put a stay on all cases in which the VA alleged that the Veteran did not appeal a denied Board of Veterans’ Appeals decision within the 120-day deadline. A recent ruling by the U.S. Supreme Court, Henderson v. Shinseki, 131 S. Ct. 1197 (2011), held that the 120-day deadline which the Veteran has to appeal a denied Board decision is not jurisdictional. Therefore, the Supreme Court found that the 120-day deadline is subject to equitable tolling.

What this means, is that if the Veteran had a legitimate reason for not being able to appeal the decision within the 120-day period, the Court will have to consider it. Right now, the Court put all the cases on hold while the judges confer and issue a decision in Henderson about what facts will constitute a “good excuse” for equitable tolling.

To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com

by Kristina Derro
Veterans Disability Lawyer

The United States Court of Appeals for the Ninth Circuit unleashed its fury on the VA last week in a decision where the judges ruled that the “unchecked incompetence” by the VA had led to poor mental health care and slow processing of disability claims for veterans. Two nonprofit organizations, Veterans United for Truth and Veterans for Common Sense, filed a lawsuit seeking to force VA to make changes to the way it treats veterans with mental health disabilities and handles compensation claims.

The Ninth Circuit agreed with the plaintiffs’ case that the VA must put mental health initiatives into effect throughout the entire system and change the way it adjudicates disability compensation claims in its various regional offices. The Court cited to statistics that it often takes weeks for a suicidal veteran to get a first appointment at a VA and that it often takes VA an average of four years to fully provide the mental health benefits owed to veterans.

During the trial, emails between high-ranking VA officials were entered into evidence, revealing that VA was aware of the high suicide rates among veterans and that it harbored a desire to keep quiet the number of veterans under its care who attempt suicide. The Ninth Circuit opinion stated that “[n]o more veterans should be compelled to agonize or perish while the government fails to perform its obligation”. The Court found that there were no suicide prevention officers at any of the VA’s 800 community-based outpatient clinics, the screening for suicide by the VA was not rigorous, and that 70% of VA medical centers did not have systems to track potentially suicidal veterans.

The Ninth Circuit also wrote a scathing opinion regarding the way VA handled disability compensation claims. The opinion noted that the processing of an initial claim usually took longer than the 120-day goal set by the VA itself, and that regional offices take more than a year to certify appealed claims which the Court found was “a merely ministerial act”. The Court found that no official with VA “was able to provide the court with a sufficient justification for the delays”.

To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com

By Jim Fausone, Veteran Disability Attorney

Were you medically discharged from service? Was your discharge between the dates of September 11, 2001 and December 31, 2009? Were you discharged with a combined disability rating of 0%, 10% or 20%? If you have answered yes to all of these questions, then the DoD has created a new program to assist you in getting your discharge upgraded to a disability retirement, the Physical Disability Board of Review (PDBR).

The PDBR has been accepting applications since 2009. Its purpose is to review disability cases and determine if the veteran should have been awarded a disability retirement (which is a 30% combined disability level or higher). The benefits of having disability retirement are numerous; it enables the veteran to receive higher pay and additional benefits that are only available to those retired from service. The PDBR cannot implement changes; rather, it makes recommendations to the veteran’s Service Secretary who will issue the final decision. As of right now, there is no cutoff date to apply and there is no standard length of time for the total process as it is a newer program.

When a veteran fits the criteria above, they mail a completed DD Form 294 to the Central Intake and Tracking Unit (CITU) at Randolph Air Force Base in Texas. You can get a copy of DD Form 294 by visiting www.dtic.mil/whs/directives/infomgt/forms/eforms/dd0294.pdf. Once your application and supportive non-DoD documents are submitted, your case will be summarized by a medical member of the PDBR for presentation and vote by the PDBR’s Board.

Although there are approximately 70,000 eligible veterans, a mere 2,100 veterans have applied for review as of March 2011. However, of those 3% of eligible veterans who have applied, a promising 56% of cases have been recommended by the PDBR as being eligible for a disability retirement.

Here are some things to consider before you apply for review by the PDBR. It only looks at rated decisions; if you have a disability that was denied and not rated by the military, the PDBR will not review it for recommendation. If the PDBR recommends a disability retirement and the Service Secretary grants it, the benefits are retroactive to the date of your Physical Examination Board’s (PEB) separation action. Finally, the decision of the Service Secretary is final- there are no appeals or requests for reconsideration if new material evidence becomes available.

The traditional option is for the veteran to apply to the Board for Correction of Military/Naval Records (BCMR/BCNR). The BCMR makes both recommendations and decisions. If you were not rated for a disability at the time of discharge, the BCMR/BCNR will consider changing the record to show that you were rated for the disability. If BCMR/BCNR decides in your favor, the benefits are retroactive to the date of separation from service. If an appeal was previously denied, and relevant, newly-discovered evidence becomes available, the BCMR/BCNR will conduct a reconsideration of the appeal.

For more information about PDBR, the application process, and the comparisons between the PDBR & BCMR/BCNR please visit:

http://www.health.mil/About_MHS/Organizations/MHS_Offices_and_Programs/PDBR

To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com

by Kristina Derro
Veteran Disability Lawyer

A 2008 survey performed by the military revealed that over 21% of service women are victims of Military Sexual Trauma (MST). Unfortunately, due to the private nature and the stigma attached to this type of assault, along with the embarrassment and fear of retaliation that the victims have, most incidents go unreported. In fact, the Department of Defense has acknowledged that 75% of MSTs are not reported.

Victims of MST suffer through the initial assault and the repercussions during his or her time in service. The victims then end up being re-victimized when they apply for compensation from VA for the assault they suffered. The majority of VA claims for compensation for MST are denied because of a lack of documentation proving that they occurred. At this time, military records documenting MST are destroyed between one and five years after filing. This provides no lasting record for the MST victims.

A new piece of legislation has been recently introduced into Congress by Senator Amy Klobuchar (D-Minn) and is authored by members of both political parties. This Bill will change the way records regarding MST are made and retained across all five branches of the military. The goal is to allow MST records to be kept for a longer period of time, allowing the documentation to be available if and when the veteran ultimately applies for service connection years down the road. The Bill also includes provisions for research on sexual assault and harassment into the military, in an attempt to discover ways to combat and prevent MST from happening in the first instance.

 Read more about this piece of legislation at:

http://www.vabenefitblog.com/new-bill-addresses-record-keeping-for-military-sexual-trauma/  

Do not be discouraged if you suffered from MST while in the military and failed to report it. Here at Legal Help for Veterans, PLLC (LHFV), we have been successful in getting benefits for those service men and women who either did not report the incident at the time it occurred, or had the records destroyed by the time they filed for VA benefits. In lieu of official military documents, we have used testimony from friends and family members who noticed pronounced changes in behavior in the veteran after the MST. Further, military performance reviews that have documented a significant and sudden decrease in performance have also been helpful in indicating that an MST occurred.

To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com

by Jim Fausone
Veteran Disability Lawyer

There are two important points here:  (1) you are entitled to a Purple Heart if you suffered a TBI as a result of enemy action and (2) because Purple Heart status entitles you to special treatment by VA, it is important to receive the Purple Heart.  Military Uniform Regulations currently call for awarding Purple Heart medals for “concussion injuries caused as a result of enemy-generated explosions”.  At the start of these wars, a decade ago, confusion existed about TBI and Purple Hearts but DOD has made it clear that TBI’s are eligible. 

Read  http://www.usatoday.com/news/military/2011-03-17-purpleheart17_ST_N.htm

The VA gives special status to Purple Heart recipients. Veterans who have earned the Purple Heart medal now receive faster service and save money when they access Department of Veterans Affairs health care.  So don’t just walk away from this medal.  It may be important decades from now when you need to access VA health care.

To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com

by Jim Fausone
Veteran Disability Lawyer

Banks and mortgage companies continue to step in it.  There are state and federal laws which protect service members from home foreclosure when they are active duty.  But Michigan recently had a case go to trial, and settle before the jury decided the case, on just this issue. 

An Iraq War veteran settled his lawsuit against the bank that foreclosed upon and sold his house while he was overseas. James Hurley, 45, settled the lawsuit against Deutsche Bank Trust Co. and Saxon Mortgage Services on Thursday in the second week of a US District Court trial. Terms of the agreement are confidential .  Sgt Hurley owned a house in Hartford, in Van Buren County, before foreclosure proceedings began in 2004.  The settlement will not even the score for the 7 years of grief and aggravation he suffered. 

This problem is so pervasive that Michigan Attorney General Bill Schuette recently issued a statement reminding banks and mortgage companies of this type of foreclosure is illegal. ”Michigan service members should not be foreclosed upon while on active duty,” said Schuette.  “State and federal law offers legal protections to ensure our military families have a roof over their head while Mom or Dad fights for our freedoms.”    A congressional investigation was launched earlier this year to investigate reports of financial services companies foreclosing on military families and overcharging thousands for mortgages in violation of the federal Service members Civil Relief Act.  This is why it is important for veterans and service members to know their rights.

http://www.michigan.gov/ag/0,1607,7-164–252507–,00.html

To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com

by Jim Fausone, Veteran Lawyer

We have written about the MST problem before.  Military Sexual Trauma broadly covers rape, sexual harassment and discrimination.   We deal with the aftermath when veterans seek compensation for MST.   About 80 percent of unwanted or threatening sexual acts are not reported. Victims who report abuse to their superiors often face social isolation, retribution and counter accusations. 

The ACLU has filed a suit seeking information on the number of acquittals, convictions and sentences, the number of disability claims related to sexual trauma that were accepted and rejected, and the number of sexual harassment complaints.  The government prosecutes 8 percent of military sex offenders, while 40 percent of civilian sex offenders are prosecuted, according to the lawsuit.  This disparity in prosecution affects the handling of claims by VA as no contemporaneous records exist to establish service connection.

Let’s see if  a federal  court can force DOD to provide the information requested, if it helps stop MST and  helps in getting veterans compensation for MST.

Read more at:  http://www.npr.org/templates/story/story.php?storyId=132032056

To learn more or to contact a Veterans disability lawyer, Veterans disability attorney, Veterans lawyer, or Veterans attorney call 1.800.693.4800 or visit Legalhelpforveterans.com

by Kristina Derro

A recent decision by the Court, on one of our client’s claims, stressed the importance that VA must get a medical opinion before it summarily declined to refer an issue for extraschedular consideration for unemployability. Our client worked as an accountant, handling his clients’ taxes. He was forced to stop working because his hearing loss was so debilitating that he was prevented from talking with and understanding his clients. Fearing that he would accidentally submit something erroneous to the IRS because he did not hear his clients correctly, he stopped working. VA refused to refer our client’s claim for consideration for unemployability because it determined that the Veteran could still perform the physical and mental acts required by being an accountant, he just could not hear and understand his clients.

After we submitted our legal argument, the Court determined that the VA was wrong by not referring the case to a physician to make a determination on the effect the Veteran’s hearing loss had on his ability to remain employed. The Court chastised VA for using its own unsubstantiated opinion, and not relying on independent medical evidence from a physician on the topic. After all, one can reason that if the Veteran could not hear his clients, he would be unable to hear and understand any other employer as well.