Elder Law

The Application For Veteran?s Benefits

By dvanar

A claim for VA compensation or pension benefits is initiated by submitting VA Form 21-526, the proscribed application for benefits, to the agency. See 38 U.S.C. § 5101. In the alternative, any writing submitted to the VA can be an application for benefits since a claim for VA benefits does not have to be submitted on VA Form 21-526. See 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999).

In order to successfully prosecute a claim for VA benefits, the following should be investigated before filing the claim:

1. Confirm status as a veteran. A veteran is ?a person who served in the active military, naval or air services, and who was discharged or released under condition other than dishonorable 38 U.S.C. § 101(2).
2. Determine that the veteran has a current disability which has been diagnosed by a medical professional. So long as the underlying basis for the claim for service-connected compensation is plausible, the VA’s duty to assist is triggered, whereby the VA will assist the veteran in the development of his claim. See Veterans Claims Assistance Act, 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. Veterans seeking benefits are aided by two important presumptions: (a) Presumption of Soundness: the veteran will be presumed to have been in good health when he or she entered the service unless there is clear evidence to the contrary. See 38 U.S.C. § 1111; 38; C.F.R. § 3.304(b); and (b) Presumption of Aggravation: If a veteran is treated in service for a condition which pre-existed service, the condition will be presumed to have been aggravated by service, unless there is clear evidence to the contrary. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306.
3. Confirm that the veteran has injuries or diseases which (a) were incurred during active duty service or, (b) if the disease or injury preexisted active duty service, were aggravated during such service. There must be evidence by way of military service records of some precipitating disease, injury, or event in service. Search all sources of military records for supporting evidence. Various governmental agencies and records keepers must be contacted.
4. Confirm that there is medical evidence showing that the current disability and the in-service disease, injury or aggravation are related. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The standard of proof by which a veteran needs to show that his current medical condition is related to his military service is a medical opinion that “it is as likely as not”. This means that there must be only a 50-50 likelihood of a relationship between the two. See 38 U.S.C. § 5107(b), aka the “reasonable doubt” standard. Medical nexus may also be shown by ?continuity of symptomatology.? See 38 U.S.C. § 1101(3).

In filing the claim, include a letter describing the results of the pre-filing investigation. Describe the veteran?s current disability and enclose medical evidence which confirms that the veteran has a current disability. Describe the circumstances in which the veteran was injured or suffered a disease in-service or how any pre-existing disease or injury were aggravated during active duty service. Finally, tell how the veteran?s disability is related to the injury or disease the veteran incurred in-service or, if the disease or injury pre-existed active duty service, was aggravated during such service. In addition, enclose VA Form 21-22a by which the veteran appoints a representative. See 38 CFR §14.630 Also enclose a copy of the veteran?s DD-214, the veteran?s discharge and separation papers.

Then, wait for the VA?s decision.

Full post as published by Law Office of Donald D. Vanarelli Blog on May 01, 2009 (boomark / email).