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Military Injury Attorney

The federal government has a legal requirement to take care of disabled and injured veterans. When a veteran has a service-related disability and an honorable discharge, they can receive tax-free compensation depending on their disability rating. Currently, this can reach up to $3,400 per month (and some factors could increase your monthly payment beyond this). First, the veteran must demonstrate their entitlement to this money. This is not always a smooth process.

That’s when you need to call the military injury lawyers at Gomez Trial Attorneys. We understand what the men and women who have given so much to our nation deserve from us. We’re not just outraged when we see people like you unjustly denied your hard-earned benefits—we also know how to make the Veterans Administration and other public and private bodies fulfill their obligations to you.

You made a commitment to this nation. We’re here to make sure our country honors its commitment to you. Call Gomez Trial Attorneys now and let us help you.

How You Qualify for Veterans Disability Benefits

The first step is to apply for disability benefits.

Your application must:

  • Show that you have suffered some incapacitating injury or illness
  • Demonstrate that it stemmed from your military service
  • Show that you were not dishonorably discharged

Service-related disabilities can come from:

  • Injuries while serving
  • A pre-existing condition, which your military service made worse
  • A disability that emerged after your service, but that resulted from your military service—for example, the Gulf War Syndrome that plagued thousands of people who served in Operation Desert Storm; or the Agent Orange-related cancer cases that Vietnam War veterans developed.

The first thing that the Veteran’s Administration (VA) will do is review your application to determine if you qualify for benefits. This is far from a given, and the VA can and does turn down applications.

Types of Injuries that Could Qualify for Disability Benefits

You can qualify for veterans’ disability benefits through a wide variety of injuries.

Here are some injuries that could make you eligible for veterans’ benefits:

PTSD has become a common ground for a disability application since this country has been at war for 20 years. Before you file a claim, you must have a diagnosis from a doctor who meets certain qualifications. In addition, six months need to have elapsed from when you first noticed symptoms. PTSD diagnoses will start at a 50 percent disability rating and can increase to 100 percent.

How Disability Ratings Work

To receive disability benefits, you must have served on active duty and received a rating for a disability. Ratings are put in terms of percentages.Ratings describe how incapacitated you are from your injury. They go in increments of ten percent, and the higher your disability rating, the more money that you can receive.

The VA will give you the disability rating. That is not something that your own physician will do. They will review your medical file and doctor’s statement in making that decision. Your disability rating is supposed to represent the “detriment” to your earnings capacity from your disability. Some veterans may have multiple disabilities, making their rating even more complicated. If your rating is not what you think it should be, you can file an appeal or claim to possibly get a higher rating.

What Happens Once You Receive Your Rating

Once you receive a disability rating, it is not necessarily the final and permanent rating.

Here are some rules about what the VA can do to change your disability rating:

  • The VA could require medical examinations in the future to verify that the veteran still suffers from the disability.
  • The VA cannot lower a rating for a 100 percent disability unless there were 12 straight months of “material improvement.”
  • If you have had a certain rating for 20 years, you have protections from reductions.
  • The VA must give you notice if it intends to examine you to reevaluate your rating.
  • You have the right to appeal any decision that reduces your rating.
  • You can also get reevaluated if you believe that your disability rating has increased.

The VA is often not easy when it comes to veterans’ disability claims and benefits. Federal law tries to make the process easy for veterans because the entire system aims to ensure that those who sacrificed their health and well-being in service of their country receive compensation for their injuries. However, the VA often makes the process needlessly hard. In their defense, they believe that they are protecting taxpayer dollars. Unfortunately, countless veterans have their benefits or disability payments wrongly denied.

When You Can Qualify for VA Disability

The VA does not get the final say when it comes to your benefits. The law gives you the right to appeal any denial of benefits. This is often what veterans have to do to get what they deserve. The VA has an entire legal apparatus whose job it is to defend the agency when it says that you do not deserve a check. This is why you need one strong lawyer who is unafraid to take on the federal bureaucracy.

Why the VA Will Deny Benefits

Veterans are often shocked to find that the VA has denied their claim.

Frequent reasons that the VA gives for denial include:

  • The VA claims that there is a lack of medical evidence that backs your claim.
  • They disagree with the doctor’s statement that accompanies your claim.
  • The VA says that your injury is not service-related.
  • Your injury appears to be a pre-existing condition.
  • Your symptoms are not enough to merit compensation.
  • The agency claims that you did not follow the proper process or timelines.

How to Appeal a Benefits Denial

Gomez Trial AttorneysThe VA’s denial is not the end of the story. You have the legal right to pursue multiple levels of review of your denied claim. Before you begin to think about an appeal, you should hire a disability appeal attorney to help you state your case. This is invaluable when you are facing the VA’s legal machinery.

Your attorney will work with you to figure out the best way to appeal your denial. The VA offers appeal options, and you will want our help to figure out the right one for your case.

Here are your appeal choices:

  • Supplemental claim – You have a year after you receive a claim denial to file a supplemental claim. This has the same reviewer.You can either add new evidence of your own, or ask the VA to retrieve additional evidence for your file, such as medical records. Here, your thought is that the VA did not have enough evidence when it rejected your claim.
  • Higher-level review – When you do not have any more evidence to add, but you still think that the VA got it wrong when they rejected your claim, you can seek a higher-level review. While you cannot submit additional evidence, your attorney could speak with the reviewer over the phone and explain where the VA got it wrong. The reviewer would go over your file and decide whether the previous reviewer made an error.
  • Board level appeal – If you receive a denial of your initial claim, you have the option to seek the above two levels of review. You can also go to the Board of Veterans Appeals to have a judge decide your case. You can go straight to the Board following a denial, or you could seek additional review first. Here, you may have a hearing in front of a judge, and you have the option to submit more evidence on your behalf. The hearing part of your appeal is optional. You could still file an appeal without requesting a hearing in your case.

What Happens at a Board of Veterans Appeals Hearing

You may be wondering what to expect at a Board of Veterans Appeals hearing. After all, this is a high-stakes proceeding with your future disability benefits on the line. You will undoubtedly be nervous at this hearing, knowing full well what could happen. The first thing to help you breathe easier is knowing that you have an experienced veteran appeal attorney on your side.

An appeals hearing is a very informal proceeding. It could happen in an office or by videoconference. Most people will opt for a videoconference. You and your attorney are having a conversation with the judge about the issues in your case. You will explain why you think the VA made a mistake in your case. You do not have to worry about being cross-examined by the judge in an adversarial way. Do not worry about a tense courtroom environment. If the judge asks you questions, it is because they are trying to understand the issues in your case.

You have up to 90 days after the hearing to add additional evidence for the judge to consider before the resolution of your case. A Board hearing will add considerable time to your case, but it may be necessary to get the benefits you need if you have exhausted your internal review. Sometimes, you need your case to go in front of an objective judge. Even though the Board is part of the VA, its judges will scrutinize the record and overturn wrong decisions.

You have another level of appeal if you lose at the Board of Veterans Appeals, as there is a Court of Appeals for Veterans Claims. This is a federal court that has jurisdiction over veteran-related matters. If your case reaches the CAVC, the VA will likely be vigorously opposing you. Once the judge reviews your file, they will either affirm the Board’s decision if they find nothing wrong, or they will send the case back to the VA on remand if they found an error.

Other Service-Related Injuries

Usually, veterans’ benefits are the exclusive way that service members receive payment for injuries in the military. Veterans have very limited options to receive additional compensation from the government. Service members cannot sue the federal government for any injuries, no matter how they occurred.

The Feres Doctrine established an airtight—if unfair and overly broad—prohibition on most lawsuits in 1950. Therefore, injured military members must look exclusively at veterans’ benefits to get money from the government for injuries.

The Feres doctrine offers very few exceptions. One is if the service member was injured in the same manner as a civilian. For example, if a vehicle struck you while walking as a pedestrian at a military base, you could potentially file a lawsuit.

Call Gomez Trial Attorneys. We can investigate your claim for any applicable exceptions to the Feres doctrine. If we cannot find one, we can help you obtain the VA benefits you deserve or look into whether you have grounds for a third-party liability claim.

Suing a Third Party for Personal Injury

Service members can sue third-party companies if they caused their injuries. These include product liability cases when something that a company sells to the government injures the military personnel. There are numerous examples of military members being successful in these cases.

John Gomez

Military Injury Attorney, John Gomez

One major example of veterans being successful in such matters is the Agent Orange litigation, where plaintiffs held the companies that made the hazardous chemical legally responsible when they developed cancer. Another recent example is the 3M combat earplugs litigation where veterans sued the company that sold defective earplugs that were too short to give them full protection, leading to hearing loss. Plaintiffs have just won the initial cases that went to a jury, and the 3M company owed millions of dollars in punitive damages.

However, product liability cases against defense contractors are difficult cases. The defendants will try to rely on a government contractor defense, and you need an aggressive and knowledgeable lawyer at Gomez Trial Attorneys to fight for you.

Contact a Military Injury Lawyer

If you have suffered an injury in the service, and question who was responsible, speak with our attorneys to see if we can file a personal injury lawsuit. Even if you cannot, we could help you qualify for disability benefits. You should certainly speak with a personal injury lawyer at Gomez Trial Attorneys right away if the VA denied your initial claim, because you have limited time to appeal the decision.

Contact Gomez Trial Attorneys for help at 866-TRIAL LAW (866-874-2552) as soon as possible. Consultations are always free.

Injured in an accident? Get a real trial lawyer. Get Gomez.

Gomez Trial Attorneys
655 West Broadway, Suite 1700
San Diego, CA 92101

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