VETERANS DISABILITY AND MILITARY DISCHARGES

Military service members and veterans are a unique group of Americans who, at some point usually early in their lives, made the difficult choice to put their lives on the line for the rest of us. In 2000, attorney Jaye R. Lindsay became one of those individuals when he joined the U.S. Army’s 10th Mountain Division as a young enlisted infantry soldier.

attorney and veteran jaye lindsay
Jaye with 10th Mountain Division, moments before landing in combat in Afghanistan in 2002.

During his time in the military, Jaye deployed to Afghanistan, fighting in the historic Operation Anaconda, and later deployed to east Africa in support of Operation Enduring Freedom. As a combat veteran, Jaye is committed to serving his fellow veterans, as well as those who still serve.

Two ways that Jerome, Lindsay & Salmi, LLP strives to serve those who serve our country is through providing representation to veterans who are struggling to obtain their rightful VA disability compensation and helping former members of the Armed Forces who received unjust or improper bad paper discharges. Let us know right away if you need help with either of these.

VA Disability Claims & Appeals

The U.S. Department of Veterans Affairs is one of the largest bureaucracies in the country, employing tens of thousands of Americans and serving millions of veterans. The VA offers a number of benefits to veterans, based on type and nature of service, discharge status, and physical disabilities. Much like a workers’ compensation system, the VA also provides disability compensation to veterans who have been hurt during their service. But the rules are not always so clear.

What is a Service-Connected Disability?

To receive compensation from the VA, you must show that you have a physical or mental disability that was the result of your service. There are a number of ways this can happen. Consider the following examples:

Injuries on active duty or reserve duty - Any injury you incur while performing your duties as a National Guard member or Reservist will be considered a service-connected injury. Likewise, when on active duty, most injuries are considered service-connected. In some cases, even injuries suffered while on TDY or “off-duty” may be counted.

Medical conditions you developed as a result of service - Sometimes veterans get out of the military and discover they have developed chronic bone problems, back problems, mental health issues like PTSD, or respiratory problems. If these were due to exposure to harmful chemicals on active duty or due to experiences encountered on duty, you may have a right to service-connected disability.

Secondary disabilities - These are conditions that were not directly related to service but somehow developed as a result of other conditions that were caused by service. For instance, if you broke your left leg on active duty and the VA declared the injury service-connected, but years later you develop issues with the right leg due to compensating or limping on it, the problem with the right leg is caused by the left leg. As such, you might be able to get it covered as a secondary disability.

How the VA Disability Process Works

The VA disability claims process is quite frankly nonsensical. Anyone who regularly deals with the VA knows this, but VA disability can be a lifesaver for a veteran who cannot make a living or is living with a chronic condition that requires medical treatment. The VA has tiers of medical coverage, which largely depend on the extent to which a veteran is disabled.

The VA rates disabilities, sort of like a point system. The more conditions you have, the higher the rating will go. However, VA math is not like real math. The higher the rating goes, the more the monthly compensation amount. Some injuries that are very minor but have a risk of developing into something worse later may be rated as ZERO percent, which means there is no payment. However, just by getting the ZERO percent rating, it may qualify you for free medical care for that particular condition. This is especially helpful for young veterans dealing with things like hearing loss.

Let’s say you get a rating of 10% for hearing loss, due to a minor deficit that developed during your time on active duty. Under 2019 VA rates, the base pay for this is $140.04 per month (assuming you are single and have no children). If you later get approved for a 40% rating for a fracture that did not heal properly, you would be up to 50%. It would make sense that an additional 40% rating would likely put you way over 100%, right? Wrong. You would only bump up to 70% for your total disability rating.

VA math calculates the percent of remaining ability, rather than the amount of your disability. Therefore, as you reach higher levels of ratings, it becomes more difficult to notice an appreciable increase in your actual rating and compensation without a significant disability. A great resource for checking your compensation is the Arizona Veterans Calculator.

Also consider that the VA adds to your compensation for a spouse and any minor dependent children or adult dependents who rely on you for support. Therefore, it is very important to keep this updated with the VA all the time.

Common VA Disabilities

Over the years, our VA disability lawyer has worked to help veterans obtain compensation for injuries and conditions ranging from pseudofolliculitis barbae (PFB) to ankle fractures, to post-traumatic stress disorder (PTSD), and even sleep apnea claims. Every veteran’s case is different, so we always offer free consultations to decide whether we can help.

How VA Accredited Attorneys Can Help

We generally recommend that veterans first attempt to apply for compensation through a nonprofit service organization, such as the Veterans of Foreign Wars (VFW) or American Legion. These VSO’s are usually great at helping veterans get compensated for their disabilities, and they have expedited claims procedures and access to electronic filing that private attorneys usually do not wish to use.

Once you are denied compensation (and most people are the first time around), you will have 1 year to file a Notice of Disagreement (NOD) with the VA. This is extremely important, because if you fail to do so, you have to start all over again and you will likely lose any right to retroactive benefits. This is when you should call our office to discuss your appeal.

Jaye R. Lindsay is a VA accredited attorney, which means he is qualified and legally permitted to represent clients before the U.S. Department of Veterans Affairs. Likewise, Jaye holds admission to the Court of Appeals for Veterans Claims, which acts as the Nation’s high court for all veteran appeals.

Once your NOD is filed, the VA will provide a statement of the case, and your attorney can help to build an appeal brief with evidence and other materials, as well as legal arguments for why the VA’s rating representative was incorrect to deny benefits. While there is no guarantee you will receive compensation, those with skilled and experienced legal counsel generally have a better chance.

How Long Should You Expect to Wait for Your Appeal to Be Decided?

We wish we could be more optimistic, but the answer to this question largely depends on politics and funding. At times, the average wait time has been as high as 950 days, while other times the average wait time was as low as 295 days. As of writing, we are told the average time for an appeal to be processed by a Decision Review Officer (DRO) is about 525 days. But many veterans report waiting longer.

As a general rule of thumb, we advise clients to expect about 24 months from the date we file the appeal brief until a DRO makes a decision.

How Military Discharges Affect VA Care

Our office also helps veterans fight bad paper discharges. The military often uses negative or punitive discharges to cull the herd and remove so-called “bad eggs” from the ranks of the military. The problem with this antiquated and unfair system of military justice is that the punishment rendered to young service members is far worse than anything civilians would experience. Take a simple example.

Imagine a 19-year-old man in college who gets drunk and gets a DUI and a fine for underage drinking. Maybe he faces expulsion from college. Perhaps he has a misdemeanor on his record (assuming his attorney is not able to enter a good plea deal). Maybe he even does a few nights in jail. But with effort and time, he can clean his record, likely still get back into school and finish his degree. Who knows, he might even be able to become President one day.

Take the same young man and put him in uniform as a young soldier on an Army base in Tennessee. His command staff find out about his DUI and decide they want to send a message, so they give him an other than honorable discharge from the Army. This veteran’s record is permanently destroyed. He will be hard-pressed to obtain access to colleges, he will not qualify for the GI Bill or any of the other benefits that he worked hard to earn in the military, and even if he served in combat with honor prior to his minor offense, this will all be washed away. He will not qualify for free healthcare through the VA, nor will he get VA home loan certification or any other benefits of being a veteran. Instead, he will likely be unable to get many jobs, including anything in fire or police services.

Loss of VA Services

Now imagine the young service member was out drinking because he was struggling with intense PTSD developed during a combat deployment from which he just returned. Maybe he saw friends killed or dealt with flashbacks for months after coming home. That young veteran who gave everything to his country will not even qualify for basic services at the VA. If America wants to know why there are so many homeless veterans, look no further than the cruel and injustice so-called “uniform code of military justice,” and the inflexible leaders who abuse it.

Don’t Ask; Don’t Tell - A Blight on American History

From 1993 to 2011, “Don’t Ask; Don’t Tell” was the law of the land. During this time, thousands of honorable young American men and women chose to not only serve their country and put their lives on the line for America, they also voluntarily chose to hide their sexuality and live a concealed life to do it. Yet, many were outed and forced out of the military and charged with dishonorable, other than honorable, or even bad conduct discharges. Despite the law’s repeal, many of these Americans have never come forward to claim their rightful VA benefits and clear their names once and for all.

How a Discharge Upgrade Actually Works

Many young service members who are about to be kicked out of the military are lied to and told that their discharge will automatically be upgraded within 6 months. It’s not true. Likewise, many are punished without their own knowledge. There are plenty of stories of due process violations and commanders lying to soldiers and sailors and airmen about their rights. Even so-called advocates from the Judge Advocate General (JAG) or legal billets often are unmoved to help young service members. After all, promotions come to those who are tough on crime and tough on bad behavior. Few JAG attorneys get awards or promotions for leniency.

To upgrade a bad paper discharge, you have several options. First, you will want to apply to the Board of Review for your particular branch. This is a military board, comprised of high ranking military officers. To be honest, there is only about a 30-40 percent chance of success, and that’s when using a skilled attorney. Without an attorney, the chances are much lower. Therefore, you will want to follow this process carefully.

Step 1 - Apply to the board of review for your branch

It will take about 2 years for you to receive an answer from the Board of Review. They are very slow to respond. When completing the forms to file for a review of your discharge, you should select a records-only review, because if you are denied, you retain the right to seek an in-person hearing before the board. If you get a favorable outcome, stop here. If not, continue.

Step 2 - Request a formal in-person hearing before the board

This can be a disheartening process, because you will likely be asked numerous questions and they are likely to deny you again. However, by exhausting your remedies and options through the board, you now trigger the right to appeal to the Board of Corrections for Military Records, a civilian-run agency that has much broader power to hear and grant relief.

Step 3 - Apply to the Board of Corrections for Military Records (BCMR)

The BCMR has better outcomes in general and it can make wider changes to the character of service and your discharge status, as well as amending your record. But you have a time limit on appealing to BCMR. You must do so within 3 years of the injustice being discovered. But if you go to the board of review first and receive a negative result, in most cases this means you will have 3 years from the negative or adverse determination.  Hence, this is another reason to save BCMR for last. The BCMR can make changes such as:

  • Change your discharge
  • Change your reenlistment code
  • Remove disciplinary records, comments, and other negative materials
  • Remove bad performance reports
  • Reinstate you
  • Make other broad and sweeping changes to your record

But you only get one shot at a BCMR appeal, so there is absolutely no reason to attempt it alone. An attorney is your best option. Choose a lawyer who is also a veteran and understands the military from the inside out.

Reasons to Fight Your Discharge Early

The longer you wait, the harder it is to get the evidence you need. Records go missing, your documentation may get misplaced, and ultimately, each year that goes by with a bad paper discharge on your record is a year of your life that you are losing valuable benefits and other options. Call Jerome, Lindsay & Salmi, LLP to get help with your discharge upgrade.

Unlike injury claims and VA disability appeals, these cases are not done on a contingency. Instead, there is a need to pay for legal services, as the work can be very time consuming. However, our office strives to make it as affordable as possible, even offering down payment options and payment plans, so that you can get started on your path to justice.

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