Veterans’ Disabilty Law Pointers from an Expert

1. Some veterans are eligible to receive both service-connected compensation through the VA, as well as Social Security disability benefits (SSDI) – without setoff.

2. If there is medical malpractice at a Veterans Hospital, a veteran – or if applicable, a surviving spouse – can file for service-connected compensation from the Veterans Administration (38 U.S.C. §1151). If there has been a recovery from a Federal Tort Claims Act case, the benefits will be offset. However, there is no time limit for filing a claim through the VA, so even if the statute of limitations has expired for a F.T.C.A. case, a veterans disability claim can still be filed.

3. There are certain statutory presumptions for Vietnam veterans. For example, if a veteran who served in Vietnam during the war is diagnosed with diabetes mellitus and if that disability is rated at least 10 percent, there is a presumption that the disease is service-connected.

4. In one sense, there is no res judicata concerning veterans claims. Even if a veteran’s claim for service-connected benefits was previously denied, he or she can file a new claim for the same benefits at any time, if the veteran can prove there is “new and material evidence.”

5. If a veteran was in the service during a period of war (whether or not he or she was in the war zone) and is permanently and totally disabled, he or she may be eligible for a non-service connected pension, even if the disabilities are not service connected. As with SSI, the veteran seeking benefits for non-service connected benefits has to meet certain financial requirements and there is a setoff for Social Security disability benefits.

6. A service-connected disability, whether injury or disease, does not have to be incurred during combat. As long as the disability began when the claimant 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.

Alan J. Nuta, who served in the Army from 1961-1963 and graduated from Georgetown Law School in 1971, represents clients in their veterans disability and Social Security disability claims. His primary office is in Gaithersburg, Maryland.

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