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WASHINGTON -- A law firm that is part of the challenge against California's Proposition 8 today filed a "friend of the court" brief on behalf of a coalition of national veterans' service organizations asking the court to strike down laws discriminating against gay and lesbian veterans.

Gibson, Dunn & Crutcher LLP filed an amicus curiae brief in the U.S. Court of Appeals for Veterans Claims arguing that laws denying gay and lesbian veterans the spousal benefits they have earned, and which Congress has determined are necessary to support their families, "serve[] only to discriminate against gay and lesbian veterans" and "must be struck down as unconstitutional."

The brief was filed on behalf of the Vietnam Veterans of America, the Servicemembers Legal Defense Network, the Service Women's Action Network, the Connecticut Veterans Legal Center, Vets4Vets, and the Iraq and Afghanistan Veterans of America.

The case, Cardona v. Shinseki, Vet. App. No. 11-3803, was initiated by a lesbian veteran, Carmen J. Cardona, who was denied a spousal increase in her veterans' disability benefits after she legally married her wife under the laws of the State of Connecticut.

"It is shameful that our nation denies its gay and lesbian veterans the benefits they have sacrificed to attain and are rightly entitled to," Gibson Dunn partner Joel M. Cohen said. "We proudly represent a chorus of national veterans' service organizations asking that the court strike down the discriminatory laws that prevent our nation's veterans from receiving equal treatment under the law."

The brief traces the legislative history of the statutes animating the Department of Veterans Affairs denial of spousal benefits to gay and lesbian veterans, focusing on 38 U.S.C. § 101(31), which defines a "spouse" for veterans' benefits purposes as "a person of the opposite sex who is a wife or husband." Notwithstanding this language, amici argue that the statute's legislative history "reflects a broad commitment to equality and the provision of benefits to improve the lives of all veterans" and therefore should not "be given the perverse effect of advancing inequality by excluding veterans and their spouses from benefits based solely on their sexual orientation."

"To prevail in this case, the Government must establish that there is a constitutionally sufficient interest underpinning the Spouse Definition's discriminatory treatment of gay and lesbian veterans," the brief states.

Urging that the statutes are subject to heightened scrutiny, amici argue that the statutes would fail even under rational basis review. It concludes that "because the ban on spousal benefits is inconsistent with the statutory purpose of veterans' benefits laws, and serves only to discriminate against gay and lesbian veterans, the Spouse Definition must be struck down as unconstitutional."

The Gibson Dunn team is comprised of Joel M. Cohen, Enrique A. Monagas, Aimee M. Halbert, and Anjali Srinivasan.

"Service Women's Action Network is honored to participate in the amicus curiae brief filing in Cardona v. Shinseki. We support Ms. Cardona's claim for spousal increase in her veterans' disability benefits following her marriage in Connecticut," said Anu Bhagwati, executive director of Service Women's Action Network and former Marine Corps captain.

"Service women were disproportionately impacted under 'Don't Ask, Don't Tell' and it is disheartening to see women still experiencing systematic discrimination even after repeal. The Cardona case illustrates that there is still tremendous work to be done to end discrimination against LGBT service members and veterans."

[ download the brief here ]


The 2012 Edition of VA's Federal Benefits for Veterans, Dependents and Survivors booklet is available for viewing on-line or for download in portable document format (PDF) at http://www1.va.gov/opa/publications/benefits_book.asp

The booklet provides the rates for certain federal payments and outlines many programs and services provided by VA and other federal agencies. It also includes toll-free phone numbers, Internet addresses and a directory of VA facilities throughout the country. (more)

By Lauren Kologe

When a veteran files a claim for disability compensation or pension benefits, the Veterans Administration (VA) is often required to provide a medical exam to confirm the veteran’s eligibility for benefits and to determine the appropriate disability rating.  This is known as a C&P exam (Compensation & Pension).  The first question the veteran should ask the doctor is, “have you had a chance to review my claim file?”  If the answer is no, the veteran should ask the doctor to first review the claim file. The veteran should only proceed with the exam after the doctor has reviewed all the information the veteran has submitted and VA has received regarding the claim (the claim file or c-file).

The same is true when the veteran asks his or her own doctor to provide an opinion on the claim.  The doctor must review the veteran’s entire claims file, state that he or she has read it, and comment on the veteran’s military and medical history contained in the file so that it is apparent the doctor has actually reviewed the records.

If you, the veteran, had an examination that was short, cursory, or one in which the doctor asked questions that he or she should have known from reviewing your records, you will want to obtain a copy of the C&P exam from VA.  You are entitled to one free copy under the Privacy Act.  If the doctor did not state that he or she read your claim file, and misstated or left out relevant facts contained in the claim file, you will want to point that out to VA, and you will want to ask for a new examination.  VA is required by the “duty to assist the veteran” to provide examinations that fully consider the veteran’s medical and military history.

This is supported in many cases by the Court of Appeals for Veterans Claims, Federal Circuit, VA law (Title 38 of the United States Code), and VA regulations (Title 38 of the Code of Federal Regulations).

Fulfillment of the duty to assist “includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.” Green v. Derwinski, 1 Vet App. 121, 123-24 (1991); See also, 38 U.S.C. § 5103A(d). 

In the case Bielby v. Brown, 7 Vet.App. 260, 268 (1994), an examiner failed to read the claim file, and the Court held that an independent medical examiner’s opinion is without evidentiary value where he failed to review the veteran’s record, and thus had no basis of fact or data upon which to render an expert opinion.

Even if the C&P examiner states that he or she has read the claims file, if there are obvious errors or inconsistencies in the reporting of those facts, the medical opinion is not adequate.  The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.  See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008).

The VA’s regulations require that a report of a disability examination must be adequate for rating purposes in order for it to be justifiably relied upon by a rating authority in order to evaluate a veteran’s disability.  38 C.F.R. § 4.2. 

Moreover, an examiner’s assessment of the disability in the exam report must be based on an assessment of the disability, both currently and historically, that is factually accurate.  Id
 
Some of the items in a veterans’ claim file may be other medical opinions and treatment records.  The Court of Appeals for Veterans’ Claims has remanded several claims where the Board failed to discuss and weigh the credibility of favorable evidence.  See, Cathell v. Brown, 8 Vet.App. 539 (1996) (BVA ignored reports of treating physician and another psychologist without adequate explanation).  See also, Cropper v. Brown, 6 Vet.App. 450 (1994) (BVA failed to address all evidence of record including probative value of veteran’s psychiatric examination).

In Gabrielson v. Brown, the Court determined that a medical opinion that the VA intends to use to deny a claim must discuss the positive evidence, or major positive factors, in favor of the claim.  See 7 Vet. App. 36, 40 (1994).  Conversely, the Court stated that the Board may not adopt a doctor’s opinion as the basis for its denial of benefits when the doctor’s opinion failed to discuss all the positive evidence in support of the veteran’s claim.  See id.

If you have been denied a claim for disability benefits based on an exam (whether VA or private) that did not consider your military and medical history, please contact a Veterans Service Officer near you to explore options for appealing or re-filing a claim.  You can find a VVA representative near you by using our search tool at: https://benefitsforum.org/Rep.aspx.  You can also find a listing of all persons accredited to represent Veterans in VA claims by using VA’s search page at: http://www.va.gov/ogc/apps/accreditation/index.asp.  VSO representatives prepare claims at no cost to the veteran.  Attorneys or agents may charge for representation on appeals. 

Lauren Kologe is the Deputy Director of the Veterans Benefits Program at VVA.

BY DAVID L. HOUPPERT, ESQ., DIRECTOR, VETERANS BENEFITS

On October 13, Secretary of Veterans Affairs Eric Shinseki announced three additions to the presumptive service-connected list of diseases associated with exposure to certain herbicide agents. Due to presumed exposure to herbicides collectively referred to as Agent Orange, Secretary Shinseki has determined that B cell leukemias, Parkinson’s disease, and ischemic heart disease will allow presumptive service connection. What follows is a brief overview of these conditions.

Leukemias are a very complex group of diseases. B cell leukemia refers to several types of lymphoid leukemia that affect B cells. These types of leukemia include B-cell chronic lymphocytic leukemia/small lymphocytic lymphoma, acute lymphoblastic leukemia, mature B-cell type, B-cell prolymphoblastic leukemia, mature B-cell type, B-cell prolymphocytic leukemia, precursor B lymphoblastic leukemia, and hairy cell leukemia.

[ read entire article ]

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